(dissenting).
In February 1953, plaintiff requested and received from defendant, through an insurance agency, a policy against liability in the amount of $5,000 for each injured person and $10,000 for each accident. Defendant received payment of the premium for this policy in the amount of $81.76.
In October, 1953, without any request by plaintiff, the defendant issued an endorsement providing additional coverage. This endorsement, sent to the agency, plaintiff did not receive, but the agency notified plaintiff of its issuance. The additional premium demanded of plaintiff for this increased coverage was $3.-22. Plaintiff, who did not want the increased coverage, ignored the bill for this additional amount. On November 13, *7031953, defendant sent plaintiff a notice (defendant’s Exhibit C), cancelling the entire policy. But this notice explicitly stated that the reason for the cancellation was “non-payment of premium $2.-99.” This figure represented the premium for the increased coverage minus the commission to which the insurance agency would have been entitled if plaintiff had paid the additional premium of 33.22.
Plaintiff contended that he believed that the cancellation notice related solely to the additional coverage; that the $2,99 related to the premium therefor; and that, consequently, when he received that notice, he thought the original policy was still in effect, so that he did not attempt to obtain an insurance policy from another insurance company, as he could have done. As defendant did not, until after the accident, return the premium for the original policy which would have been unearned if the entire policy had been cancelled, the return of that unearned premium did not put plaintiff on notice, previous to the accident, of such cancellation.
The trial judge asked the jury to answer this question: “Would a reasonable prudent man upon receiving notice of cancellation worded as shown by defendant’s Exhibit C, under the circumstances disclosed by the evidence in this case, have believed, as the plaintiff here claims he believed, that the cancellation merely affected the additional coverage?” The jury answered, yes.
I think that plaintiff, “an untutored layman,” dealing with an experienced insurance company, could reasonably have had such a belief.1 The jury could reasonably so find. I think my colleagues, in rejecting that finding, have improperly substituted themselves for the jury. See Cahill v. New York, N. H. & H. R. Co., 2 Cir., 224 F.2d 637, reversed 350 U.S. 898, 76 S.Ct. 180. The defendant, which misled plaintiff to his detriment, was estopped, I think, to assert that the original policy had been cancelled.2 I would therefore affirm the judgment.
. See, e. g., Allstate Insurance Co. v. Fannie Pacific, 2 Cir., 228 F.2d 399; Broidy v. State Mutual Life Assurance Co., 2 Cir., 186 F.2d 490; Gaunt v. John Hancock Mutual Life Insurance Co., 2 Cir., 160 F.2d 599.
. Such is the rule in the case of parties to ordinary contracts. See, e. g., 3 Cor-bin, Contracts, pp. 941-942; Railway Co. v. McCarthy, 96 U.S. 258, 267-268, 24 L.Ed. 693; Griffin Grocery Co. v. Richardson, 8 Cir., 10 F.2d 467, 472-473; Fielding v. Robertson, 141 Va. 323, 333, 126 S.E. 231.
A fortiorari should it be true of an insurance company.