Harless v. Ins. Co. , 119 W. Va. 102 ( 1937 )

When one who pleads the statute of limitations against a right of action has obstructed the prosecution of the right, Code 55-2-17, tolls the statute during the period of obstruction. See generally Thompson v. Iron Co., 41 W. Va. 574,585-6, 23 S.E. 795. Under plaintiff's theory, defendant's silence in regard to lapsing her policies together with its alleged acceptance of further premiums thereon, obstructed the bringing of this action. Consequently, I would not apply the statute as a matter of law.

The verdict depends entirely on plaintiff's own testimony and her premium receipt books. Of her testimony, the majority opinion rightly observes that it is "in a great number of cases * * * either confused, evasive or incorrect." Of her receipt books, the majority opinion rightly observes that they bear "undoubted indications of alteration." It is beyond credence that over a long period of years, fourteen consecutive agents of defendant should deliberately filch the small premiums on her policies and in each instance, in evidence, should enter the first figure of the amount receipted for, upon an erasure. Those alterations are not explained, and to my mind render the books suspicious, and in fact incompetent. Freeman notes a hopeless division of authority on the presumptions of law arising when the alteration of an instrument is apparent. 86 Am. St. Rep. 129. The Virginias, however, long since adopted the common law rule that in such case an explanation is requisite. "If on the production of the instrument, it appears to have been altered, it is incumbent on the party offering it in evidence to explain this appearance. Every alteration on the face of a written instrument detracts from its credit, and renders it suspicious; and this suspicion the party claiming under it is ordinarily held bound to remove." Greenleaf on Evidence (16th Ed.), sec. 564. Accord: Piercy's Heirs v.Piercy, 5 W. Va. 199, 202; Carey Mfg. Co. v. Watson, 58 W. Va. 189,195-6, 52 S.E. 515; Priest v. Whitacre, 78 Va. 151;Slater v. Moore, 86 Va. 26, 9 S.E. 419. We have said that evidence to sustain a verdict "must be credible, reasonable and consistent with probabilities." Cannaday v. Chestonia, 106 W. Va. 254,258, 145 S.E. 390, 392. In the face of that statement, I cannot reconcile myself to this verdict supported as it is only by evidence which is confused, evasive, incorrect,suspicious or inconsistent with probabilities.