(dissenting) — Being unable to agree with the majority opinion in this case, we respectfully dissent.
I. The insurance policy contains the following, provision: “Cancelation: * * *. This policy may be canceled by the company by ma/ilmg to the insured at the address shown in this ‘polity written notice stating when not less than ten days thereafter such cancelation shall be effective. The mailing of notice *1057as aforesaid shall be sufficient proof of notice * * *. Delivery of such written notice either by the insured or by the company shall be equivalent to mailing.” (Italics added.)
Under the record there can be no question but that the notice of cancellation was mailed by the company to the insured at the address shown in the policy. The jury found that the policy had been canceled as alleged by the defendant-company. The majority opinion rests chiefly upon the proposition that the cancellation provision in the policy is contrary to the statute governing cancellations, as the statute requires that for a notice of cancellation to be effective, actual receipt of such notice by the insured must be shown. It overrules Sorensen v. Farmers Mutual Hail Ins. Assn., 226 Iowa 1316, 286 N.W. 494, 123 A. L. R. 1000, which, under a statute identical in terms, specifically held actual notice was not necessary.
Passing for the moment the question of the alleged conflict between the statute and the terms of the policy, it seems to us that the court completely ignores rule 334, R. C. P., and bases its reversal upon an alleged error not assigned by appellant, but advanced by the court itself.
Appellant assigns three alleged errors. (1) Court should have sustained motion to dismiss and for judgment notwithstanding the verdict and should have withdrawn the affirmative defense of cancellation in the light of the facts as shown. (2) Testimony should have been excluded under section 622.4, Code of 1954. (3) The burden of proving cancellation being on appellee, the proof as to the mailing of the cancellation notice and another inconsistent piece of mail in the same to Selken was not sufficient to sustain such burden.
Error No. 1 is omnibus in nature and presents nothing for the court to pass upon, rule 344(4), R. C. P., but even conceding it to be a properly assigned error, it concerns only the question (as shown by the argument) as to knowledge of an agent of the company that insured had changed his address from Altoona to Vinton.
Error No. 2 by no stretch of the imagination can be said to present the question determined in the majority opinion.
Error No. 3 clearly refers only to testimony relative to the mailing of the cancellation notice and its sufficiency to sustain *1058tbe burden of mailing; and as to whether the ten-day notice required by the policy was given (the notice was mailed March 12, effective date March 22). In fact appellant, in argument, states, “A casualty insurance carrier cannot cancel out an insured except, by strict compliance with policy terms and the consent of, or notice to, the assured.” (Citing Artificial Ice Co. v. Reciprocal Exchange, 192 Iowa 1133, 184 N.W. 756.)
Certainly it cannot be said that any or all of the assigned errors taken together even hint at the question of whether or not there was a cancellation, in the absence of proof of actual receipt of the notice thereof.
In support of its holding that actual receipt of notice is necessary for an effective cancellation, the majority opinion seeks to ¡support its injection of this proposition into the case by stating, “He [appellant] mentioned the case, and quoted from dissenting opinions in Sorensen v. Farmers Mutual Hail Ins. Assn., supra, in Reply Brief. Appellant’s first and third assignments of error attacking the sufficiency of the cancellation notice ;are broad enough to sustain consideration of method of serving the notice, and reversal of the case.”
Again we state that the assigned errors, Nos. (1), (2) and (3), do not even hint at the question of conflict between the statutes and the provisions of the policy as to cancellation. It may ibe that in a law action errors relied upon for a reversal may for the first time appear in appellant’s reply brief and argument, an entirely new procedure to us, and assuming such to be the case, .just how does it appear in the reply brief 1
Appellee states in brief and argument that it mailed the notice to the address appearing in the policy, as required by •the terms of the policy, rather than to where insured was then living, and then cites the Sorensen case to the effect that proof 'of receipt of such notice is not required. Appellant in reply brief states that appellee fails to point out that the Sorensen opinion was by a divided court and failed to decide whether the terms of the policy conflicted with the provisions of the statute. The appellant then states, “The plaintiff-appellant discussed this facet of the case as a matter of interest because there is strong doubt that the notice of cancellation was ever mailed.” We are unable to find in this statement, as the majority of the *1059members of the court appear to do, a claimed error to the effect that, since it does not appear the notice was actually received, the burden of showing cancellation has not been sustained. Such a contention was not made in the trial court and is not asserted here. We said in Van Donselaar v. Van Donselaar, 249 Iowa 504, 508, 87 N.W.2d 311, 313, that we have never defined what constitutes “arguing” a question. But it must be apparent it is not argued when the brief affirmatively shows the argument is directed to an entirely different point.
II. But, if we assume that reality can be stretched so far that we can say the point upon which the majority reverses was assigned as error and argued, we are still unable to agree that there must be proof the notice of cancellation was actually received. This is the important holding of the majority opinion, and the one upon which it overrules Sorensen v. Farmers Mutual Hail Ins. Assn., 226 Iowa 1316, 286 N.W. 494, 123 A. L. R. 1000. It is also one upon which we take issue.
The majority states that “the great weight of authority, nation-wide, is that the insured must receive actual notice as to the cancellation.” Then it cites Galkin v. Lincoln Mutual Casualty Co., 279 Mich. 327, 272 N.W. 694, upon which it leans heavily. In fact, the cases cited by it following the Galkin case are nearly all taken from the Michigan court’s opinion therein. They are found in Division III of the majority opinion. But they hardly add up to “the great weight of authority” claimed for them. First are cited Farnum v. Phoenix Ins. Co., 83 Cal. 246, 23 P. 869, 17 Am. St. Rep. 233, and American Bldg. Main. Co. v. Indemnity Ins. Co., 214 Cal. 608, 7 P.2d 305. Yet in Naify v. Pacific Indemnity Co., 11 Cal.2d 5, 10, 76 P.2d 663, 666, 115 A. L. R. 476, 480, a later case than the first two cited, we find the California Supreme Gourt saying of the question whether notice of cancellation may be given, if so stipulated in the policy, by mailing to the address stated in the policy: “In this simple form, the question may perhaps be answered in the affirmative * * * though it has not yet been directly ruled upon in this jurisdiction [state].” Yet the two California cases first cited were relied upon by the Michigan Supreme Court in reaching its decision in the Galkin case, and are cited and relied upon by the majority here.
*1060Rose Inn Corp. v. National Union Fire Ins. Co,, 258 N. Y. 51, 179 N.E. 256, 83 A. L. R. 293, likewise relied upon both by the Michigan court and the majority here, seems to have no relation to the point involved. It holds that where the insured permitted an insurance agency to write its policies in whatever company the agency selected and to accept cancellation notices, the agency was in fact the agent of the insured as to acceptance of such notices. In Long v. Home Indemnity Co., La. App., 169 So. 154, a case decided by an intermediate appellate court, the decision rested largely upon the fact that the notice was attempted to be given by registered mail to be delivered to addressee only. The court said this was not proper, since such a letter would not be forwarded; that ordinary mail would have been much more likely to reach the insured. There was no holding that the notice must actually be delivered.
In view of the actual situation outlined above, it seems difficult to say that the great weight of authority supports the position of the majority. The authorities relied upon in fact narrow down to the Michigan case of Galkin v. Lincoln Mutual Casualty Co., supra, and perhaps two or three very early decided cases in other jurisdictions. On the other hand, there are a great number of recently decided eases to the contrary. The narrow question before us is whether a provision in an insurance policy providing for giving notice of cancellation by mailing to the insured’s address as set out in the policy is in contravention of our statute, section 515.81 of the Code of 1958. This provides the policy may be canceled by the company “by giving five days notice of such cancellation * * It is the apparent holding of the majority that the contract provision in the policy that the notice might be given by mailing to the address of the insured shown in the policy is invalid as not in compliance with the statute; that there must be shown an actual delivery.
With this we must disagree. There is no provision of public policy that prevents an insured agreeing that mailing a notice to him at the address given in the policy will constitute “giving” him notice. The statute does not say how the notice shall be given; and we think it is open to the contracting parties to agree *1061as to bow it shall be done. The overwhelming trend of authority in recent years upholds this thought. In overruling our own case of Sorensen v. Farmers Mutual Hail Ins. Assn., supra, we are making progress in reverse. Let us look at some of the many recent authorities which are in line with the Sorensen case.
In addition to Home Insurance Co. v. Jones, 192 Ark. 916, 95 S.W.2d 894 (June 29, 1936), there is Wisconsin Natural Gas Co. v. Employers Mutual Liability Ins. Co., 1953, 263 Wis. 633, 640, 58 N.W.2d 424, 428, from which is quoted: “* * * Wisconsin adheres to the rule that where the provision for notice is stated in the contract and cancellation is to be accomplished by proof of mailing, this meets the demand.” (Citing Heimbecher v. Johnson, 258 Wis. 200, 45 N.W.2d 610.)
In Medford v. Pacific Nat. F. Ins. Co., 1950, 189 Ore. 617, 642, 219 P.2d 142, 153, 222 P.2d 407, 16 A. R. L.2d 1181, the Oregon Supreme Court pointed out a distinction between clauses in some of the earlier policies and the one relied upon in the case before it. It said: “The provision here is that the policy may be canceled by mailing to the insured at the address shown in the policy a written notice. * * # We hold that the defendant’s answer was not demurrable by reason of the omission therefrom of an allegation that the mailed notice was also actually received.” It will be noted that the provision for cancellation in the policy under consideration in the Oregon case was identical with that in the case at bar.
Gendron v. Calvert Fire Ins. Co., 1943, 47 N. M. 348, 353, 143 P.2d 462, 464, 149 A. L. R. 1310, 1313, is a ease in which the same question was before the New Mexico Supreme Court. It said: “Under the terms of the policy it is not necessary that the insured actually receive notice. * * * Where the insurer has strictly complied with the terms of the policy with reference thereto, failure to receive notice will not render the attempted cancellation ineffective.” To the same effect is Seaboard Mutual Casualty Co. v. Profit, 1940, 4 Cir., 108 F.2d 597, 126 A. L. R. 1105.
The question was considered by the Virginia Supreme Court in Wolonter v. United States Casualty Co., 1919, 126 Va. 156, 166, 101 S. E. 58, 61, with this result: “The contract was a valid contract, and the company had the right to cancel it in the man*1062ner therein provided.” Likewise the Texas Court of Civil Appeals in Duff v. Secured Fire & Marine Ins. Co., 1949, Tex. Civ. App., 227 S. W.2d 257, 258, said: “* * * it has been held in this State that when a policy provides for cancellation by the insurer by mailing notice thereof in compliance with the terms of the contract, cancellation is effected by such mailing whether the notice is ever received by the insured or not.” (Citing authorities.)
The Supreme Court of Oklahoma has determined the question, with a discussion as to its reasonableness and validity, in Midwestern Insurance Co. v. Cathey, Okla., 1953, 262 P.2d 434, 436, in these words: “Neither can it be said that the provision is unreasonable or unjust. Under the provision, the assured assumed the risk of receiving the notice when properly mailed to him at the address given in the policy. Under a policy containing the provision involved herein, it would place an unreasonable and unfair burden on the company to say that notice of the cancellation must be actually delivered to the assured. To make such a requirement would be placing additional words in the policy far beyond the actual terms of the policy agreed to by the parties.”
Thorough attention was given to the same point by the Washington Supreme Court in Trinity Universal Ins. Co. v. Willrich, 1942, 13 Wash.2d 263, 273, 124 P.2d 950, 955, 142 A. L. R. 1, with this conclusion: “* * * the more recent and, we think, the better reasoned cases from other jurisdictions sustain the validity of such cancellation clauses and hold that the mailing of written notice, in accordance with the provisions of such a clause, is sufficient, whether or not such notice is actually received by the insured.” (Citing authorities)
To the same effect are St. Paul Fire & Marine Ins. Co. v. C. I. T. Corporation, 55 6a. App. 101, 189 S.E. 390; Dent v. Monarch Life Ins. Co., 231 Mo. App. 283, 98 S.W.2d 123; Raiken v. Commercial Casualty Ins. Co., 1926, N. J. Sup., 135 A. 479; McBride v. New Amsterdam Casualty Co., 12 N. J. Misc. 617, 173 A. 346, 347; Kamille v. Home Fire and Marine Ins. Co., 129 Misc. 536, 221 N. Y. S. 38, 39; and Appleman on Automobile Insurance, 476. A case supporting the majority position, not cited in its opinion, is Merrill v. Farmers’ Alliance Ins. Co., 155 *1063Kan. 31, 122 P.2d 776. This case with the Michigan case of Gal-kin v. Lincoln Mutual Casualty Co. referred to above are the only modern cases upholding the majority opinion, or decided under provisions of the policies similar to the one involved here. They represent a distinct minority view and are out of line with sound reasoning and the strong modern trend.
III. It cannot be contended that the decisions cited in the immediately foregoing division of this dissent were made under statutes dissimilar to our section 518.81, or in the absence of any statute. Provisions identical with section 518.81, in substance, are found in the laws of nearly all the states. As an example, the Oklahoma statute provides: “Any policy * * * may be cancelled at any time * * s by the company by giving five days’ notice of such cancellation.” The statute is in general, almost universal, use. The cases cited hold that the parties may contract as to how the notice may be given, and that an agreement that this may be done by mailing to the address given in the policy is not in contravention of the statute.
IV. The majority points out that the agents of the company should have had notice that the address of the insured had been changed and that he no longer resided at the place stipulated in the policy. This contention is well answered in Gendron v. Calvert Fire Ins. Co., supra, pages 353, 354 of 47 N.M., page 465 of 143 P.2d, page 1314 of 149 A. L. R. It appeared there that, while a California address was given in the policy, and the notice of cancellation was sent there, an agent of the company knew that the present address of the insured was Albuquerque, N. M. The New Mexico court pointed out that there was nothing to show that the insured desired the company to recognize such a change of address or had requested it to amend the policy in accordance therewith. It said:
“There is much reason to be advanced in support of a practice of embodying in the policy of insurance a permanent address to which all necessary mail and notices may be sent [forwarded] to the insured. It is common knowledge that the insured, although having a permanent address in a place where the policy is issued, may travel widely and that he may be in*1064volved in accidents in places far'removed from tbe place of bis residence. * * *
“What wonld have been the result if notice of cancellation had been sent to the insured at his present Albuquerque address and he had not received it? He could very properly have complained that the cancellation was not effective because it was not attempted in strict compliance with the terms of the policy.”
To the same effect is Raiken v. Commercial Casualty Ins. Co., supra, at page 480 of 135 A. In the case at bar it seems quite evident that if the company had relied upon hearsay or other indirect evidence that plaintiff was living in Vinton rather than Altoona and had sent the notice of cancellation to the former place it would have been vulnerable to the claim that it. had not complied with the stipulation in the policy. It is not claimed that the insured had ever given any notice that he wished the address in the policy changed. He was a schoolteacher, subject to change of address from year to year in accordance with his employment; the reason for having a fixed address stipulated in the policy is clear. He could well have protected himself by a notice to the company to change the address, or, as it seems likely he would, by leaving a forwarding address at Altoona.
V. It must be evident that if we strike down this provision which is found in all such policies, by holding that the notice must be actually delivered, we are placing an unreasonable burden upon insurers. Much of our population in these times is not permanently fixed in any one abode, but is transitory to a considerable extent. Employees are required by their duties to move from place to place; unemployed persons move about seeking work. Retired persons often move from the colder regions to warmer climates. So, if an address cannot be agreed upon in the insurance contract, the company will in many cases be without means of making actual delivery of notice. And, it is suggested, the more irresponsible financially, or the more accident prone an insured is, the more likely he is to move about. The insured can always protect himself so as to insure receiving the the notice in one of two ways: by giving the company formal notice that he wishes the contract changed to show a new address, or by leaving a forwarding address when he departs from *1065tbe stipulated place. He can control this; the insurer cannot. We cannot think the legislature intended any such oppressive result. If it did, it did not say so.
The majority opinion must be based upon the theory that the statute requires actual delivery of the notice. We have held that a requirement that notice be “given” does not mean that it must be “served.” North v. Kinney, 281 Iowa 951, 952, 953, 2 N.W.2d 407, 408. And notice may be “given” by publication or posting, under various statutes, in which instances the notice is often never actually received.
VI. The majority does not stress the contention that the notice of cancellation did not conform to the policy requirement in that it fixed the termination date one day less than the number required by the policy; no doubt for the reason that the rule is well established that under such circumstances the policy is held to be canceled when the full time has expired. Seaboard Mutual Casualty Co. v. Profit, supra, at page 599 of 108 F.2d. Nor do we find merit in the other contentions made by the appellant.
We would affirm the judgment entered in the trial court.
Larson, J., concurs in Divisions II, III, IV, V, and VI of dissenting opinion.