Reliance Life Ins. Co. v. Russell , 208 Ala. 559 ( 1922 )

Upon reconsideration the court is convinced of its error in affirming that under rule 34 of circuit court practice (175 Ala. xxi) special request for instruction lettered C (copied in the statement of the case ante) was an appropriate method to present the matter of variance therein described. The rule requires and the decisions to be cited affirm that the sole means by which advantage of a variance may be taken is to object to the evidence whereby the variance would be introduced. U.S. Health Ins. Co. v. Savage, 185 Ala. 232, 235,64 So. 340; Morrison v. Clark, 196 Ala. 670, 674, 72 So. 305; Carter v. Shugarman, 197 Ala. 577, 578, 73 So. 119; U.S. Health Ins. Co. v. Goin, 197 Ala. 584, 73 So. 117; Allen v. Standard Ins. Co., 198 Ala. 522, 526, 527, 73 So. 897. The phase of the opinion, delivered on original submission, expressing the view that the matter of variance between the description of the policy in the complaintand the policy as introduced in evidence, without objection on that account, is eliminated; the conclusion now prevailing being that the trial court did not err in refusing request C. Rule 34, Cir. Ct. Prac., supra; author. supra.

Upon original consideration the court concluded that the defendant (appellant) was erroneously refused general affirmative instruction in its behalf because the undisputed evidence disclosed the cancellation of the policy by consent of the parties; the circumstances being outlined in the opinion ante. A factor vital to this inquiry was the reply letter, purporting to be signed by Russell, dated December 15, 1920, inclosing the policy in suit, as more fully described and treated in the original opinion ante. It was then held, in accordance with the good authority there cited, that a reply letter, received in due course through the mails, was prima facie authentic, was admissible in evidence, and put upon the party to be affected by such reply letter the obligation to rebut the presumption that the reply letter was authentic; and that proof that the purported signator of the reply letter did not sign it was not sufficient or efficient to rebut the stated presumption of authenticity, it being necessary for the party to go further and adduce evidence designed and tending to show that the reply letter was signed by another without authority. This conclusion is supported by Capital City Supply Co. v. Beury, 69 W. Va. 612, 72 S.E. 657, 658, noted in 22 C. J. pp. 908, 909. There was no evidence for the plaintiff (appellee) tending in any degree to show that Russell did not authorize another to sign in his name the reply letter of December 15, 1920, in which the policy in suit was inclosed; and hence the thus presumed authenticity of that reply letter, accompanying the policy, was not in any degree reflected upon or refuted, leaving the plaintiff, on this phase of the case, in a posture similar to that of any other litigant who has not discharged, in any degree, his obligation to offer evidence tending, at least, to reflect upon or to refute the prima facie presumption predicated of established facts that invite and support the presumption. The here pertinent doctrine of the Beury Case, supra, is sound and applicable in the present circumstances. The circumstances recited in the opinion in the Beury Case, supra, do not discriminate its principle from just application to the case under review.

In support of the appellee's view Cobb v. Malone, 91 Ala. 388,8 So. 693, and 22 C. J. p. 908, are cited to the proposition that, to quote Corpus Juris —

"If the genuineness of a reply is denied, it then becomes a question of fact for the jury to determine whether or not the letter is genuine."

This text is referred to Barham v. Bank, 94 Ark. 158,126 S.W. 394, 27 L.R.A. (N.S.) 439, 442. The case of Cobb-Malone did not involve a reply letter. Neither the conclusion in the Beury Case, supra, nor that prevailing here, is opposed to the quoted text or to the deliverance of the Arkansas court. There the predicate was an express denial by the party of the "genuineness" of the reply letter, whereas here the only evidence is that the purported signator (Russell) did not himself affix his signature to the reply letter. In the absence of evidence tending to deny genuineness, importing necessarily the exclusion of utterance of the reply letter by the purported signator's authority, the text at 3 Wigmore, § 2153, illuminates the subject with that author's customary analytical completeness.

It is in effect insisted in brief for the appellee that the death of Russell 11 days after this reply letter's date (December 15, 1920), in which the policy in suit was inclosed, should avert the application of the rule. The elements of fact and circumstance that invite this rebuttable presumption and cast on the other party the stated obligation to bring forward evidence tending, at least, to rebut the presumption through evidence of no authority from the purported signer for another to utter the reply letter are predicated of the facts and circumstances related to the receipt, through due course of mail, of the reply letter, and not of those subsequently intervening through the absence or decease of the purported author of the reply letter. It appears from the evidence, without dispute, that the defendant (appellant) acted on Russell's avowals in this reply letter, inclosing the policy in suit, several days before the death of Russell.

In effect, though not in terms, it is insisted that there is evidence tending to show that this reply letter (not signed in the handwriting of Russell, his name being signed thereto by another) was not uttered by Russell's authority or under his sanction. We find in the record no evidence to that effect or tending to invite that conclusion. That Russell received Shannon's letter, to which this letter expressly stated it was in reply, was proven by the plaintiff's own testimony. That Russell had in his possession the policy in suit about the date of the reply letter inclosing the policy to Shannon, viz. December 15, 1920, was proven without dispute both by the plaintiff's own testimony and that of Dr. Welch, who testified that about two weeks before Russell's death on December 26, 1920, he examined Russell for a policy in the New England Mutual Insurance Company (the company mentioned in this reply letter); that Russell said, substantially, to him that he (Russell) "was taking the New England Mutual policy to take the place of the policy" in the Reliance Life Insurance Company, the policy in suit; and, also, that he (Russell) said "he thought he was taking New England Mutual at the time he took the Reliance"; and that Russell, in talking to witness, gave this circumstance as the "reason that he was then taking the New England." These statements by Dr. Welch are substantially the same as material statements contained in the reply letter of December 15, 1920.

The plaintiff, testifying, said:

"If Mr. Russell turned this policy that is sued on over to Mr. Reese, I didn't know of it."

There was no evidence or inference from evidence inviting the conclusion that Russell ever delivered the policy in suit to Reese. The plaintiff's own testimony in this connection is this:

"I didn't hear any of the conversation between Mr. Russell and Mr. Reese on that occasion, only I heard Mr. Russell say to Mr. Reese that he would not cancel his insurance in the Reliance until he had other insurance. He [Russell] didn't apply to the New England Mutual for insurance right then, but he did apply to the New England Mutual for insurance. * * * No, sir; Mr. Russell didn't say to me that he didn't intend to cancel this policy until the New England Mutual issued his policy. I didn't hear him say it to any one else in my presence."

The plaintiff also testified:

"The last time I saw this policy was in December, about the middle of December, I think. Mr. Russell had it at that time."

The application for rehearing is accordingly denied.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.