Southland Life Ins. Co. v. Greenwade

• Decision Date: 11 February 1942
• Docket Number: No. 1886-7807.,1886-7807.
• Parties: SOUTHLAND LIFE INS. CO. v. GREENWADE.
• Court: Texas Supreme Court

159 S.W.2d 854

SOUTHLAND LIFE INS. CO. v. GREENWADE.

No. 1886-7807.

Commission of Appeals of Texas, Section B.

February 11, 1942.

Rehearing Denied March 18, 1942.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by Mrs. Nina Marie Greenwade against the Southland Life Insurance Company to recover on two life policies in which the plaintiff was named as beneficiary. From a judgment in favor of the plaintiff, the defendant appealed to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 143 S.W.2d 648, the defendant brings error.

Judgment of the Court of Civil Appeals affirmed.

Wm. Lipscomb, Carpenter & Carpenter, and Andrew V. Allison, all of Dallas, for plaintiff in error.

Morrow & Calvert and Martin & Allred, all of Hillsboro, for defendant in error.

TAYLOR, Commissioner.

Mrs. Nina Marie Greenwade, plaintiff, sued the Southland Life Insurance Company to recover upon two policies issued on September 9, 1936, on the life of John Leonard Greenwade for the sum of $1,000 each, naming plaintiff, his wife, as beneficiary. Trial was before the court without a jury. Plaintiff recovered and the judgment was affirmed by the Waco Court of Civil Appeals. 143 S.W.2d 648.

The policies were delivered on September 9, 1936. The premiums were payable quarterly ($4.46 on each policy) on the 9th day of March, June, September and December of each year. The insured died from injury on July 18, 1938. The grace period in question expired on July 11, 1938, due to the fact that July 10th that year was Sunday. Plaintiff alleges that the insured duly mailed to the company a letter on July 9, 1938, enclosing a check drawn by him on the First National Bank of Whitney, Texas, in the amount of the two premiums, that the company received it in due course of mail the following day, and that such receipt was in time to prevent forfeiture of the policies. The company denied liability on the ground the policies lapsed for nonpayment of premium.

The testimony stated most strongly for plaintiff is that the insured, on Saturday afternoon, July 9, 1938, left the work he and his brother were engaged in at the home of insured to go to Whitney for the sole purpose of paying his insurance, and an account to Gates Rubber Company. To that end he went to his desk took out the notices from the insurance company and wrote two checks, one of which was to the Southland Life Insurance Company for $8.92, and the other for $5 to the rubber company; that he addressed two envelopes stamped them with three cent stamps, put the two checks in the two envelopes. Witness Mallory was waiting outside in his car to take the insured to Whitney. While still in the car, and before the insured got out, he saw two letters in the insured's hand and remembered that one of them was addressed to Southland Life Insurance Company at Dallas. At Whitney Bob Walker, who was employed at a grocery store just across the street from the post office, saw insured come into the store with two letters in his hand and walk on through and out the front door toward the post office. Witness Barnes saw him in front of the post office where he had come from the grocery; that "he passed by and said he was going to the post office first and came back out and stopped"; that he had what "looked like a couple of letters in his hand" as he went into the post office and had nothing in his hand when he came out. Witness Behringer saw the insured on that occasion in the street in front of the grocery store and walked with him from there to the post office; that the insured "dropped two letters in the mail box"; that he (Behringer) had some mail and after seeing the insured "mail two letters" dropped his in right behind him. Whitney, it was shown, is a railroad town 75 miles from Dallas. The vice president and cashier of the First National Bank of Whitney stated that letters mailed at Whitney addressed to Dallas would, in the usual course of mail, be there the next day. He testified further that by virtue of a deposit made on July 12, 1938, the insured had $22.74 to his credit in the bank and that such date was the earliest upon which a check duly mailed at Whitney on July 9 to an addressee at Dallas would have reached the bank in the ordinary course of business.

It appears from the foregoing brief statement of the testimony from plaintiff's viewpoint that there was substantial evidence to raise and support the conclusion, prima facie, that the check was received by the company within the grace period. In other words, as will presently be shown according to the established law of this state, the letter, being properly addressed, stamped and mailed, a rebuttable presumption of fact arose that it was received by the company in the usual course of the mails. (All italics herein are ours.)

The San Antonio Court of Civil Appeals so stated nearly fifty years ago (1894) in Manhattan Life Insurance Company v. Fields, 26 S.W. 280. See opinion of same court in Opet v. Denzer, Goodhart & Schener, 93 S.W. 527. The Galveston Court, in Pink Front Bankrupt Store v. G. A. Mistrot & Company, 40 Tex.Civ. App. 375, 90 S.W. 75, a case having peculiar pertinency under the present facts, so held after pointing out that plaintiffs denied the check had ever reached the store, saying "defendant's evidence presents the issue, and it should have been properly submitted to the jury." The Waco Court, in Davis v. Petroleum Casualty Company, Tex.Civ.App. 13 S.W.2d 981, reached the same conclusion, citing the cases above referred to, together with others to the same effect. In Smith v. F. W. Heitman Co., 44 Tex.Civ.App. 358, 98 S.W. 1074, 1077, writ refused, the Galveston Court points out that the fact of the proper mailing of a duly addressed and stamped letter "may be shown by circumstances," and that the custom of a business house with regard to the disposition of letters sent out by it through the mail should be admissible as such a circumstance, "and sufficient to uphold an inference by the jury that such letter * * * was received by the addressee." This court refused defendant's application for writ of error in that case. In Curtis & Co. Mfg. Co. v. Douglas et al., 79 Tex. 167, 15 S.W. 154, 155, another case peculiarly applicable to the facts of the present case, and which turned upon whether a letter was received prior to December 22nd, this court points out that it was for the jury to determine when the check was actually received, notwithstanding the evidence tending to show it was received before December 22nd, was circumstantial; and further that the jury must have come to the conclusion appellant received the check in the usual "course of mail," and that if it did it could not be held it "used proper diligence to collect it."

The latest letter-mailing case by this court upon the question immediately under consideration is American Nat. Ins. Co. v. Callahan, 125 Tex. 222, 81 S.W.2d 504, 505. The court speaking through an adopted opinion by the Commission of Appeals points out that early in January, 1930, the insured "wrote and duly mailed, at Dallas, a letter to the company, duly addressed to the company at its home office," and that "company officials testified that it was never received by them;" and that liability under the policy depended on "whether or not, at the time the insured died, the policy had lapsed on account of the nonpayment of the premium." In directing an affirmance of the judgments below in favor of plaintiff the opinion states that the due mailing of the letter at Dallas "affords a legal basis for a fact finding that it was received by the company at the company's home office in Galveston, in due course of mail."

There is practical unanimity in the decisions that a presumption of some character arises upon such a state of facts that the letter was duly received in the course of the mails, variously designated as an "inference," or a "presumption of fact," or a "legal presumption," or a "real presumption," or an "administrative assumption"; and frequently as merely a "presumption." It is settled in this state, however, that when a letter properly addressed and with postage prepaid is mailed, a presumption of fact (rebuttable of course) arises that it was duly received by the addressee. See cases quoted from above; also 17 Tex. Jur. p. 273, sec. 74; Supp.1937, p. 1238, sec. 74; Supp.1940, p. 301, sec. 74; McCormick & Ray's Texas Law of Evidence, pp. 126-7, sec. 70; Wichita Valley R. Co. v. Davis, Tex.Civ.App., 275 S.W. 169; and Farmers' State Bank & Trust Co. of Gorman et al. v. Central State Bank of Dallas, Tex. Civ.App., 281 S.W. 632, writ refused.

It is the law of this state also that under a state of facts similar to that just stated, in the absence of evidence to the contrary, the presumption has the force of a rule of law. See cas...