The following language contained in the opinion in the above-entitled case will be stricken therefrom:
"It will be readily perceived that the above notice is not a notice of cancellation. It was merely a notice of intention to cancel the policy unless within a designated time the premium is paid. It did not operate ipso facto to cancel the policy, but merely notified the defendant that unless he complied with the condition therein stated within the time specified in the notice the policy would be canceled."
In lieu of said language the following will be inserted in the opinion:
"It will be perceived that the above notice was a conditional notice of cancellation. It notified the defendant that unless he complied with the condition therein stated within the time specified in the notice the policy would stand canceled. If in such case the insured defaults in the payment of the premium within the time specified, then, upon the expiration of said time, the notice operates, ipso facto et eo instanti, to cancel the policy. In other words, in such case, the insured having failed to pay the premium within the prescribed time, the notice then operates to cancel the policy and no other or further notice or other action by the insurer is necessary to effect a cancellation of the policy. If, on the other hand, the premium be paid by the insured within the time specified in the notice, then the notice is of no further force and effect and the policy will remain a valid contract between the insurer and the insured."
The following language will also be stricken from the opinion:
"Thus it is readily to be perceived that there is a marked distinction between that case and the one at bar. Here the notice did not operate, ex propria vigore, to cancel the policy, but, as above stated, amounted only to one of intention to cancel it."
In lieu of this language the following will be inserted in the opinion:
"There is, obviously, a marked distinction between that case and the one at bar."
[9] It should be explained that the above modification is made because of a suggestion to the writer of the opinion, after its publication in the California Appellate Decisions, that the language stricken from the opinion seemed to imply *Page 366 that, in the event that the insured failed to pay the premium within the time specified in the notice, the said notice would not then operate, ipso facto, to cancel the policy. We did not intend by the use of the language hereby expunged from the opinion so to declare. We never for a moment supposed that the notice, upon default by the insured in the payment of the premium within the time designated therein, would not stand as an absolute cancellation of the policy. Counsel for the appellant in their briefs seemed to hold to the view that, even though the premium were paid within the prescribed time, the insured could, nevertheless, treat the notice as one of unconditional cancellation, to take effect upon the expiration of the five days within which the premium was required to be paid, or as amounting, in effect, to the cancellation which either the insurer or insured was at liberty to effect under the provision of the policy giving the parties to the contract of insurance the mutual right to cancel or surrender the policy arbitrarily or without stating any reason therefor. This contention we had in mind when we used the language stricken out. We merely attempted to say that a notice specifically stating a condition upon which alone the policy would be canceled would not have that effect unless the condition were not complied with by the insured within the time fixed by the notice for its performance. But we can see the force of the criticism that the language hereby stricken from the opinion might justify the implication that, if the premium was not paid within the prescribed time, a cancellation of the policy would not then be effected, but that there would be required further notice to that effect. Clearly, the said language so construed would not correctly state the rule as to that matter; and, to make our position clearer upon the proposition, we are glad of the opportunity to make the above modification.
*Page 367Burnett, J., and Finch, P. J., concurred.