(dissenting).
The District Judge in his Memorandum and Order noted that the material facts are not in issue. He found that the appellee issued to the appellant an automobile insurance policy which became effective on July 9, 1964 and was to run for one year. The policy contained a clause 17 which provided that after the policy had been in effect for 60 days the insurer “shall not exercise its right to cancel the insurance” except for stated and specific reasons.
Before the policy had been in effect for 60 days the Company on August 31, 1964 mailed to the appellant a cancellation notice, as the trial judge found. Appended as an exhibit to the appellant’s amended complaint, that notice recited that the policy issued to the appellant “is hereby CANCELLED as of 12:01 A.M. the 10 day of September, 1964, from and after which day and hour the policy will no longer be in force.”
Clause 16 of the policy had provided “The mailing of notice as aforesaid shall be sufficient proof of notice.” Thus, we have here no question as to the mailing or the receipt of the notice. Cf. Sea*822board Mut. Casualty Co. v. Profit, 108 F.2d 597, 126 A.L.R. 1105 (4 Cir. 1940).
Clause 16 of the policy further provided:
“This policy may be canceled by the company by mailing to the insured * * * at the address shown in this policy written notice stating when not less than ten days thereafter such cancellation shall be effective.”
The District Code contains no prescribed form for cancellation of automobile liability policies, but, interestingly enough, D.C.Code § 35-712 (1961) prescribes basic provisions for individual accident and sickness policies. As to cancellation, the prescribed form provides that the insurer may cancel a policy by written notice mailed to the last address of the insured, “stating when, not less than five days thereafter, such cancellation shall be effective.”
I see no slightest ambiguity in that language, all but identical to that in the instant case. I gather that the Superintendent of Insurance discerned no ambiguity in such language.
In short, the contract set the period that the notice must run. If the insurer within sixty days of the effective date of the policy elected to cancel, it was privileged to do so upon its mailing the notice which fixed a cancellation date not less than ten days thereafter. That notice, mailed August 31, 1964, fixed September 10, 1964 as the date of termination. That
“meaningful act is not an empty gesture. To hold that the letter had no effect because it mistakenly set a period short of that required would make a modern application of the brittle fifteenth century common law. The rule which we adopt, that a notice, good in all other respects, such as being definite rather than a mere statement of future intention, is not made totally ineffective because it states a period shorter than the contract requires, is in accordance with the authorities.”1
With that statement by Mr. Justice Vinson, joined by Chief Justice Groner and Associate Justice Rutledge, I find myself in accord. I elaborate no further than to observe that the opinion by District Judge Walsh correctly discerned and gave application to the rules which should govern the disposition of this case.
I would affirm the judgment.
. All States Service Station v. Standard Oil Co. of New Jersey, 73 App.D.C. 342, 343, 120 F.2d 714, 715 (1941). And see Young v. State Farm Mut. Automobile Ins. Co., D.C.App., 213 A.2d 890 (1965). And compare Fed.R.Civ.P. 6(a).