Hood v. M. F. A. Mut. Ins. Co.

• Citation: 379 S.W.2d 806
• Decision Date: 28 May 1964
• Docket Number: No. 8235,8235
• Parties: Claude J. HOOD, Plaintiff-Respondent, v. M. F. A. MUTUAL INSURANCE COMPANY, a corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 806

379 S.W.2d 806

Claude J. HOOD, Plaintiff-Respondent, v. M. F. A. MUTUAL INSURANCE COMPANY, a corporation, Defendant-Appellant.

No. 8235.

Springfield Court of Appeals, Missouri.

May 28, 1964.

Motion for Rehearing or to Transfer Stricken on June 23, 1964.

William H. Burden, Joplin, for defendant-appellant.

Combs & Denney, Kansas City, Max H. Glover, Webb City, for plaintiff-respondent.

STONE, Judge.

In this jury-tried action for recovery under the collision coverage alleged to have been afforded by an automobile insurance policy issued by M.F.A. Mutual Insurance Company, the defendant herein, plaintiff Claude J. Hood initially had judgment for $1,500 upon the jury verdict in that amount. Upon plaintiff's remittitur of $550, defendant's motion for new trial was overruled, and this appeal by defendant from the reduced judgment of $950 has followed.

By defendant's Policy No. 1-248028 (hereinafter referred to as the policy) issued to plaintiff, whose occupation was shown as carpenter and whose address was given as Sarcoxie, Jasper County, Missouri, defendant afforded various coverages, including $50 deductible collision coverage, to plaintiff upon a 1955 Ford tudor for the policy period 'from February 20, 1956 at 9:00 A.M. to April 2, 1956 at 12:01 A.M. standard time * * * and for terms of such duration each thereafter as the required renewal premium is paid by the insured [plaintiff] on or before expiration of the current term and received by the company.' (All emphasis herein is ours.) On April 5, 1956, plaintiff's Ford automobile was damaged in a collision in Kansas City, Missouri, where plaintiff then was (and for some time had been) working.

The basic factual issue litigated upon trial was whether 'the required renewal premium' of $40.84 for the next succeeding policy term of six months had been paid by plaintiff prior to expiration of 'the current term,' i. e., prior to 12:01 A.M. on April 2, 1956, 'and received by the company.' Plaintiff testified that 'along around five o'clock' in the afternoon of Friday, March 30, 1956, he 'went down to Smith Drug Store' at 35th and Prospect in Kansas City, where he purchased an American Express money order for $40.84. 'I [plaintiff] filled out the money order to Lloyd Rush [defendant's agent], Carthage, for this premium. I put it in an envelope and taken the envelope out and dropped it in the mailbox * * *.' The envelope was addressed to 'Lloyd Rush, M.F.A. Agency, South Side of the Square, Carthage, Missouri,' and bore a three-cent stamp and plaintiff's return address. When asked about when the mail was collected at that box, plaintiff's puzzling, obfuscous answer was: 'I had mailed several letters on there at that mailbox and I had mailed them at home and the mail was always picked up before six A.M. or six P.M. in the evening. It was picked up before six is the reason I would mail the letters before six so they would be picked up.' No other evidence even remotely pertained to the time or frequency of collections at that mailbox, and there was no evidence as to the usual course of mail from that point to Cathage, Missouri, or as to the time ordinarily required for transmission to and delivery in Carthage.

Upon trial, plaintiff introduced in evidence the 'sender's receipt' for American Express money order No. KC--10,587,821 (hereinafter referred to as the money order). One side of the 'sender's receipt' bore the printed money order serial number, the (dimly) stamped date of 'MAR 30 1956,' and the handwritten (in ink) amount of $40.84. The other side showed 'Sent to Lloyd Rush 3-30-56 For 1955 Ford Ins. Date 3-30-56.' (The italicized words and figures were handwritten in ink, and some of the figures following 'Date' appear to have been written over other figures.) The record does not identify the person who wrote $40.84 on the 'sender's receipt,' but admittedly plaintiff inserted the handwritten words and figures on the other side. Strangely (so it seems to us) neither party offered any evidence as to what the records of the American Express Company or its issuing agent, Smith Drug Store, showed concerning the money order. There was no suggestion that the money order ever had been presented for payment or paid, but the only specific evidence on this subject was that, in response to an inquiry, the American Express Company advised under date of June 19, 1956, that the money order had not been paid. Prior to trial on February 8, 1963, plaintiff had made no effort to obtain a refund of the face amount of the money order.

Simply stated, defendant's position has been and is that the money order was never received by agent Rush, that the renewal premium was not paid prior to 12:01 A.M. on April 2, 1956, and that the policy then terminated. During a period of about two years prior to April 1956, plaintiff had procured through Lloyd Rush of Carthage, as local agent, not only the policy affording coverage on plaintiff's 1955 Ford tudor but also other insurance coverage. Defendant's evidence was to the effect that renewal premium statements on its insurance policies (excepting those affording group hospitalization coverage) were mailed from its home office at Columbia, Missouri; and that, with each such statement, a self-addressed envelope was enclosed in which the policyholder might mail the premium payment to defendant's home office. However, plaintiff said that he never had mailed a premium payment to defendant's home office, but that all such payments had been made to agent Rush, some in person at Rush's office and (when plaintiff was working 'out of town') some by mail addressed to Rush. And, although Rush testified that he was simply 'a sales agent,' we have no doubt but that, on the evidence in its entirety, the jury reasonably might have found (as was required by plaintiff's verdict-directing instruction 1) that Rush was 'acting within the course and scope of his agency' for defendant in receiving premiums paid on policies issued through him as local agent. Cf. M.F.A. Mutual Ins. Co. v. Quinn, Mo.App., 259 S.W.2d 854, 857, 860.

Plaintiff reported the accident of April 5, 1956, to Rush at his office in Carthage on Saturday, April 7, and Rush then gave plaintiff a report form to be completed and returned. On the following Saturday, April 14, plaintiff personally delivered the completed report to Rush, in the meantime having obtained from the Kansas City police department detailed information about the accident. Rush (so he said) first discovered on April 14, 'when I went to the file to finish up my report,' that the policy had terminated for nonpayment of the renewal premium. In a subsequent long distance telephone call from Kansas City on the evening of Monday, April 16, plaintiff gave Rush the serial number of the money order alleged to have been mailed on March 30, but Rush (still insisting that he had received no such remittance) definitely stated that 'I [plaintiff] didn't have no insurance, that it would be up to me and the company.'

Defendant's first point on appeal is that plaintiff did not make a submissible case. Plaintiff relies on the general principle that evidence showing that mail matter has been properly addressed and mailed with postage prepaid raises a rebuttable presumption of fact (perhaps more correctly stated, permits an inference to be drawn) that such mail matter was received by the addressee in due course. ¹ It is true that, as defendant points out, the only direct evidence in these areas was to the effect that the money order was not paid and, in fact, was never received either at defendant's home office or by agent Rush. But such evidence of nonreceipt and nonpayment did not nullify and destroy the so-called presumption of receipt, and the question of receipt remained in the case as one of fact to be determined by the jury under all of the evidence, ² with the burden of proving receipt still resting upon plaintiff. 31A C.J.S., Evidence, Sec. 136e, loc. cit. 300-301.

However, in considering submissibility, we remain mindful that the basic factual issue was whether 'the required renewal premium' of $40.84 had been paid by plaintiff prior to expiration of 'the current term,' i. e., prior to 12:01 A.M. on April 2, 1956, 'and received by the company.' If not, the policy then terminated. Plaintiff pleaded in his petition 'that on or about the 30th day of March, 1956, the plaintiff paid * * * said premium' to Rush as defendant's agent. And plaintiff's verdict-directing instruction 1 required a finding, inter alia, 'that on March 30, 1956 and before the expiration date of April 2, 1956 * * * plaintiff properly mailed the premium * * * of $40.84' in a postage prepaid envelope addressed to Rush and deposited in the United States mails in Kansas City, but no finding was required that the premium had been mailed in time to reach Rush in due course prior to expiration of 'the current term' of the policy. Accordingly, it appears that plaintiff's trial theory was that the renewal premium had been paid on March 30, 1956, by the act of depositing the money order in the United States mails in Kansas City. It was plaintiff's burden to show that defendant had manifested, expressly or impliedly, an intention to accept the renewal premium, as of the time of mailing. Tippett v. Farmers' Mut. Fire Ins. Co., Mo.App., 47 S.W.2d 225, 227(4). Nothing in the record so indicated. Quite to the contrary, the policy provided for continuation of coverage only if the required renewal premium was paid prior to expiration of 'the current term,' i. e., prior to 12:01 A.M. on April 2, 1956, 'and received by the company.'

In effect, defendant's enclosure of a self-addressed envelope with the renewal premium statement invited plaintiff to mail the premium to defendant's home office; and, if the finders of the facts had found that defendant theretofore had followed the practice of accepting premiums paid to Rush both in person and by mail, plaintiff's alleged...