Forrest v. Sovereign Camp, W. O. W.
| Decision Date | 21 June 1935 |
| Docket Number | 42894. |
| Citation | 261 N.W. 802,220 Iowa 478 |
| Parties | FORREST et al. v. SOVEREIGN CAMP, W. O. W. |
| Court | Iowa Supreme Court |
Appeal from District Court, Wapello County; Elmer K. Daugherty Judge.
Action at law to recover upon a certificate issued by defendant association, insuring the life of one Thomas A. Bell. There was a judgment against defendant, from which it has taken this appeal.
Affirmed.
William A. Hunt, of Ottumwa, for appellant.
Jaques, Tisdale & Jaques, of Ottumwa, for appellees.
In this action at law, plaintiffs allege that the defendant issued a certificate insuring the life of Thomas A. Bell, and claiming that the certificate was in full force at the time of his death, seek to recover the amount of the certificate as beneficiaries therein named. The defendant filed an answer containing a general denial and alleging that the decedent, Bell, had permitted the certificate set out in plaintiff's petition to lapse for nonpayment of dues and by reason thereof the certificate was of no force or effect at the time of the death of Bell. There was a trial, a verdict for plaintiff, and judgment thereon against defendant, from which it appeals.
Appellant first assigns that the court erred in sustaining plaintiff's motion to withdraw from the jury Defendant's Exhibit D-2, claimed by defendant to be a carbon copy of a letter written and mailed on April 27, 1932, to decedent Bell by Evan J. Morris, defendant's then state manager for the state of Illinois. The purpose of the offer of this exhibit was to prove that the decedent had knowledge of the contents of the letter of which the exhibit was a copy. Because of the probability that the officers of the government will perform their duties in the transmission and delivery of mail, this court has beld that it will be presumed that a communication intrusted to the mails, in such manner that these duties are imposed on the officers of the government, will reach its destination. Watson v. Richardson, 110 Iowa, 673, 80 N.W. 407.But to avail one's self of the presumption mentioned it is essential that it first be established, as a matter of fact, that all things have been done and accomplished that are a necessary part of imposing on the government officers and employees the duty of transmitting and delivering the letter. These things, the doing of which must be proven, are set out in Central Trust Co. v. City of Des Moines, 205 Iowa, 742, 218 N.W. 580, 582, in following language: " In order to raise a presumption of delivery of a paper through the mail, there must be: (1) The necessary evidence of the contents and execution of the paper; (2) that it was inclosed in a wrapper or otherwise prepared for transmission through the mail; (3) there must be evidence of the correct post office address of the person to be charged with receiving it; (4) evidence that the package containing the document was properly addressed; (5) that postage was prepaid; and (6) that it was deposited in the mail for transmission." See, also, Watson v. Richardson, supra.The plaintiff's motion to withdraw this exhibit was grounded on the proposition that the defendant had not established by proper and sufficient evidence these things which are prerequisites to the presumption that the mail reached its destination. A review of the testimony leads us to the conclusion that the defendant failed in the respect claimed by plaintiff in his motion, and that the court did not err. The only evidence regarding the ultimate facts constituting the elements of transmission by mail of the letter to decedent was the testimony of Evan J. Morris. He stated he had personal knowledge of signing the letter, and that Exhibit D-2 is a true copy thereof. Cross-examination revealed that he was without any personal knowledge as to whether the letter was later inclosed in an envelope or wrapper for transmission in the mail, and as to whether any envelope or wrapper containing the letter was properly addressed to Bell, and as to whether any stamp was affixed to prepay the postage, and as to whether such letter or wrapper inclosing the letter was deposited in the mails for transmission. The witness says he depends on the accuracy of his secretary in the regular routine of his office in saying that these things, of which he admittedly had no personal knowledge, were done and accomplished. In his statement last mentioned it is quite apparent that the witness attempted to testify to what were his own conclusions. His conclusions are based on what he may have known concerning the office routine. If defendant was attempting to show the essential facts constituting transmission by mail by showing the course of business, it failed because there is no evidence in the record as to what this office routine may have been. It may also be added that appellant has not pointed out, nor have we found in the record, and evidence establishing what was the correct post office address of Bell, the person sought to be charged with receiving the letter at such address, if indeed he had a post office address. Nor do we find any evidence that the purported letter was directed to such address. Defendant did not establish the essential facts on which to base the presumption that the decedent received the letter.
In the second and third assignments, appellant urges that the court erred in instructions 1, 4, and 5 because the court merely copied the allegations of plaintiff's petition in their entirety and called the attention of the jury to allegations which were not sustained by the evidence, thereby giving emphasis to plaintiff's allegations to which plaintiff was not entitled, and because the instructions were improper, and confusing, and mislead the jury. We find the instructions mentioned, in stating the issues, do contain verbatim and somewhat extended excerpts from the pleadings. But a careful examination of the instructions does not convince us of any reversible error in so doing, in this case, because the portions of the pleadings copied into the instructions were concise and clear statements of the issues, free from anything of an inflammatory nature. The instructions which followed clearly defined the issues to be considered by the jury. See McDonald v. Robinson, 207 Iowa, 1293, 224 N.W. 820, 62 A.L.R. 1419.The nature of the excerpts from the pleadings is such we cannot see that defendant was prejudiced by the failure of the court to state in other language the portions of the instructions to which exceptions are taken, nor do we find that there was anything confusing in the nature of these instructions, saving, however, one matter in the statement of the issues discussed in the following division of this opinion.
In the fourth assignment, appellant predicates error upon the court's including in instruction 1, the following: " That no notice was served upon Thomas A. Bell of any lapse of said policy." This portion of the instruction is a part of the statement by the court of the matters constituting plaintiff's cause of action. Appellant contends that this statement concerned irrelevant and immaterial matter. Appellant also contends that no notice was required to be given by defendant to plaintiff in order to bring about a lapse of the policy, if assessments were not paid, all of which may be conceded. So it is conceivable that confusion of the jury, or a misconception by them of the...
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