Williams v. Northeast Mut. Ins. Ass'n

• Decision Date: 05 June 1934
• Docket Number: No. 22662.,22662.
• Citation: 72 S.W.2d 166
• Parties: WILLIAMS v. NORTHEAST MUT. INS. ASS'N.
• Court: Missouri Court of Appeals

72 S.W.2d 166

WILLIAMS v. NORTHEAST MUT. INS. ASS'N.

No. 22662.

St. Louis Court of Appeals. Missouri.

June 5, 1934.

Rehearing Denied June 19, 1934.

Appeal from Circuit Court, Audrain County; William C. Hughes, Judge.

"Not to be published in State Reports."

Action by Lucy Williams, an infant, by J. A. Williams, next friend, against the Northeast Mutual Insurance Association. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Rodgers & Buffington, of Mexico, Mo., for appellant.

Fry, Hillingsworth & Francis, of Mexico, Mo., for respondent.

BECKER, Judge.

This is an action on an insurance policy issued to one George Williams, deceased, wherein his sister, Lucy Williams, is the named beneficiary, and she, being a minor, brought action upon the policy upon the death of the insured through her father as her next friend.

This case is here on second appeal; our former opinion is to be found in 51 S.W.(2d) 142.

The defendant, Northeast Mutual Insurance Association, is an insurance company doing business on the assessment plan and organized under chapter 37, art. 3, § 5745 et seq., Rev. St. Mo. 1929, Mo. St. Ann. c. 37, art. 3, § 5745 et seq., p. 4398 et seq., and is therefore not subject to the general insurance laws of the state.

The answer of the defendant sets up two defenses: (1) Lapse of the policy by reason of a failure to pay an assessment; (2) that the plaintiff, Lucy Williams, the named beneficiary therein, had no insurable interest in the life of the insured.

The full detail of the pleadings and facts of the case is to be found in our former opinion in this case. It is sufficient statement of facts for the purposes of this appeal to note that the insurer adduced testimony tending to show that an assessment had been duly made upon each member holding a certificate of insurance in the association, and that a notice of such assessment, as well as a second or follow up notice of such assessment, had been duly mailed to the insured, and that the insured had failed to pay such assessment.

On behalf of the beneficiary there was testimony adduced which if believed tended to show that the insured had not received any notice of such an assessment.

Sections 2 and 3 of article 4 of the by-laws of the company provide that each member shall be notified of each assessment, and that any member failing to pay his assessment within 30 days after receipt of notice shall be deemed suspended. Therefore while the by-laws permit notice of assessment to be mailed to the insured, yet no member shall be suspended until he has failed to pay his assessment within 30 days "after receipt" of such notice.

Appellant here urges on appeal that the trial court erred in the giving of each of four instructions to the jury which deal with the question of receipt vel non by mail by the insured of notice of an assessment.

When a letter or other mail matter is properly addressed and mailed with postage prepaid, there is a rebuttable presumption of fact that it was received by the addressee as soon as it could have been transmitted to him in the ordinary course of the mail. 22 C. J. § 36, p. 96; Williams v. Ins. Ass'n (Mo. App.) 51 S.W.(2d) 142; Price Brokerage Co. v. Ry. Co., 207 Mo. App. 8, 230 S. W. 374, loc. cit. 377; Rolla State Bank v. Pezoldt, 95 Mo. App. 404, loc. cit. 411, 69 S. W. 51; Ward v. Transfer & Storage Co., 119 Mo. App. 83, loc. cit. 88, 95 S. W. 964; Twohig v. Ry. Co. (Mo. App.) 218 S. W. 897.

The presumption so raised is not a conclusive presumption of law, but a mere inference of fact based upon the regularity and certainty with which, according to common experience, the mail is carried. Dunlop v. U. S., 165 U. S. 486, 17 S. Ct. 375, 41 L. Ed. 799; Henderson v. Coal & Coke Co., 140 U. S. 25, 11 S. Ct. 691, 35 L. Ed. 332; Rosenthal v. Walker, 111 U. S. 185, 4 S. Ct. 382, 28 L. Ed. 395. The presumption of due receipt of the letter may be rebutted by evidence, as in the instant case, that it was not in fact received. Scheidel Western X-Ray Co. v. Bacon (Mo. App.) 201 S. W. 916. Such testimony of non-receipt, however, does not nullify the presumption but leaves the question for the determination of the jury under all of the facts and circumstances in the case, with such weight given to the presumption as the jury find it may be entitled to. Cromwell v. Ins. Co., 47 Mo. App. 109; Edwards v. Ins. Co., 1 Mo. App. 192.

We, therefore, take up appellant's assignment of error leveled at the said instructions in light of the rule of law announced supra. The instructions complained of are modified instructions numbered 1 and 2, and instructions B and C given at the request of plaintiff.

The alleged errors in instructions numbered 1 and 2, which are modifications of instructions requested by defendant, cannot be reviewed here, in that the defendant's motion for new trial does not set up the giving of these modified instructions by the trial court as a ground for new trial. We take up, therefore, the question of the assignment of error so far as it relates to plaintiff's given instructions B and C, which read as follows:

"The Court...