Garnishment under execution on $27,000 default judgment in favor of Ralph O. Bartleman against Richard King Humphrey in personal injury action. Garnishee-appellant was the liability insurer of defendant Humphrey and seeks relief from jury verdict and judgment in the garnishment proceeding for $33,471.89, principal and interest.
On September 8, 1962, Ralph O. Bartle-man sued Richard King Humphrey for damages for personal injuries and property loss in an automobile collision which occurred about 6:10 a.m., January 9, 1961. Garnishee refused to defend the suit. On January 21, 1964, default judgment was entered in favor of Bartleman and against Humphrey for $27,000 and costs. Execution, issued April 13, 1964, was served on M.F.A. Mutual Insurance Company by garnishment of proceeds of insurance policy No. 24-1-354346-01 with policy period from 10 a.m., November 29, 1960, to 12:01 a.m., February 29, 1961, issued by M.F.A. to Richard King Humphrey. Interrogatories exhibited to M.F.A. by Bartleman inquired whether M.F.A. was indebted to Humphrey ; whether Humphrey had a policy of automobile liability insurance in force at 6 a.m., January 9, 1961, and whether M.F.A. was obligated to pay judgments against Humphrey under policy no. 24-1-354346-01 during its period. Garnishee’s answers were a denial of these inquiries, asserting as its reason, failure on the part of Humphrey to pay the premium. Bartleman’s denial of M.F.A.’s answers to his interrogatories alleged that although an $11.45 check tendered for the premium was not honored due to insufficient funds in the account, the policy in issue was in effect at the time of the accident because M.F.A. is estopped to deny the coverage in that it waived punctual payment of the premium, it induced Humphrey to believe the policy was in force, and it accepted the check as unconditional payment of the premium. M.F.A.’s reply admitted the collision, denied the alleged coverage, and reiterated its reason for denial, nonpayment of premium.
Respondent’s case was submitted by Instruction 2:
“Your verdict must be for plaintiff Ralph Bartleman and against Garnishee M. F.A. Mutual Insurance Company if you believe :
“First, Garnishee M.F.A. Mutual Insurance Company treated the check as payment of the premium on the policy issued December 9,1960, or
*339 “Second, Garnishee M.F.A. Mutual Insurance Company delayed unreasonably in presenting the check to the Bucklin State Bank and such delay was prejudicial to defendant Humphrey.”
Appellant’s theory of the case was submitted by Instruction 3:
“Your verdict must be for Garnishee, MFA Mutual Insurance Company, and against Plaintiff, Ralph O. Bartleman, if you believe:
“First, the check dated November 29, 1960, in the amount of $11.45, made payable to MFA Mutual Insurance Company was never honored or paid by the Bucklin State Bank, and
“Second, Garnishee, MFA Mutual Insurance Company, did not accept the dishonored and unpaid $11.45 check as payment of the premium regarding said policy mailed to R. K. Humphrey and/or Nadine Humphrey at Bucklin, Missouri, on December 13,1960, and
“Third, Garnishee M.F.A. Mutual Insurance Company notified R. K. Humphrey and/or Nadine Humphrey before 6:00 o’clock a.m. on January 9, 1961, that said policy mailed to them on December 13, 1960, had lapsed because the premium on said policy had not been paid.”
Appellant contends that its motion for directed verdict should have been sustained because respondent failed to make a sub-missible case. The argument is that respondent failed to prove that defendant Humphrey paid any consideration for the policy in issue; that appellant accepted the check for $11.45 as unconditional payment of the premium; that appellant waived conditional acceptance of the check; that appellant was estopped from asserting that the check was not received as unconditional payment; that appellant induced defendant to believe the policy was in force at the time in question.
These cases usually have bizarre circumstances, and this is no exception. In September, 1960, Richard Humphrey and his wife, Nadine, moved from Prairie Home to Bucklin, Missouri, where Richard had a job with Leathers Grain Company. They lived on a farm about four miles from Bucklin, and he worked for Leathers for about a month. They owned a 1958 Plymouth which was insured by M.F.A. under a policy, Exhibit 1, which had a policy period from 12:01 a.m., May 29, 1959, to 12:01 a.m., November 29, 1959, and which had been kept in force by payment of specified renewal premiums to expire at 12:01 a.m., November 29, 1960. In November, 1960, the Humphreys received, Exhibit A, appellant’s “Renewal Certificate” with notice of renewal premium due on or before 12:01 a.m., November 29, 1960. The renewal certificate would, upon payment of premium, extend coverage to 12:01 a.m., May 29, 1961, and provided that it was void if the renewal premium were not received by 12:01 a.m., November 29, 1960, or if a check for premium were dishonored. The Humphreys did not pay the premium described in the renewal certificate and, as a result, the policy to which it related expired at 12:01 a.m., November 29,1960.
In lieu of the renewal of that policy, Mrs. Humphrey went to the office of appellant’s agent in Bucklin, J. W. Ralston, to arrange for new insurance with different coverage. Mr. Ralston prepared Exhibit 2, “Application For Change — Automobile — MFA Mutual” which, with respect to premium payment, said, “Attach check,” and which Mrs. Humphrey, with Richard’s authority, signed, and which contained a 30-day binder executed on behalf of M.F. A. by Mr. Ralston. Mrs. Humphrey gave Mr. Ralston a check, Exhibit 3, on the Bucklin State Bank, dated November 29, 1960, for $11.45, to cover premium for 3-months’ coverage from 10 a.m., November 29, 1961. The Humphrey's bank statement, Exhibit B, showed a balance November 26, 1960, of $13.20, with no withdrawal until sometime November 29, 1960, when a check for $2.20 was paid. On December 1, 1960, withdrawals left a balance of $0.34; balance December 2, 1960, was $0.09; and on January 23, 1961, it was $0.00. A $65.- *340 00 deposit was made February 11, 1961. The binder portion of the application provided for the binder to be effective upon execution by an authorized agent and to be void if any check tendered in payment of premium were not honored. Mr. Ralston mailed the check and application to appellant’s office in Columbia, Missouri; they arrived there Thursday, December 1, 1960. The usual course of processing such check and application (one of approximately 5,000 per day) was to send them to the filing department for the policy folder and then forward the three items to the policy service department for review and preparation of a work sheet showing changes. All items went next to the I.B.M. department for punch cards which result in the printing of the policy and arrangement of premium reserve. The policy in issue, Exhibit 4, described in the application, was thus printed December 9, 1960. It had a policy period from 10 a.m., November 29, 1960, to 12:01 a.m., February 29, 1961. The policy was mailed by appellant to the Humphreys at Bucklin December 13, 1960, and they accepted it upon receipt. No other item was in the mailing envelope. On the same date, December 13, appellant deposited the $11.45 check in its account and the endorsement stamp indicates “for deposit only.”
The policy in question does not contain the language of the renewal certificate and binder, i.e., it does not say that it is effective only upon condition the premium was paid. Its recital in this respect is: “In reliance upon the Declarations * * *, and for payment of the premium * * *, MFA Mutual Insurance Company * * * agrees with the named insured * * Cancellation right is given to the insurer by the policy upon giving written notice to insured not less than ten days prior to the effective date of cancellation. No such notice was ever sent or received. The policy stated that it embodied all of the agreements between insurer and insured.
Boone County National Bank, upon receiving appellant’s deposit, sent the $11.45 check in the usual and customary channel for collection to Mercantile Trust Company in St. Louis which processed it through the Federal Reserve Bank in St. Louis which sent it to Bucklin State Bank which refused to pay it December 16, 1960, for lack of sufficient funds. The check was returned through the channel to Mercantile which sent it on December 18, 1960, to Bucklin State for collection resulting in a second refusal. Mercantile received the check after second refusal December 22, 1960, and Boone County received it December 23, 1960. Boone County, on Friday, December 23, 1960, notified M.F.A. that the check had not been paid and M.F. A. retrieved the check that date. Between December 13 and December 23, 1960, when it was charged for the check, M.F.A. had credit with Boone County for the $11.45. Boone County had never instructed Mercantile to process the check twice. When the check was returned, the amount was deducted from premium reserve by M.F.A.
December 23, 1960, was Friday and, due to Christmas, appellant’s next working day was Tuesday, December 27, 1960. Around December 24, the Humphreys and their children went to Silex, Missouri, to spend the Christmas holidays. They did not return to the Bucklin farm until the night of January 1, 1961, the night before the children were to return to school. Mrs. Humphrey collected all accumulated mail from the mailbox that night and opened it the next morning.
M.F.A. returned the dishonored check to the Humphreys at Bucklin by letter, Exhibit 6, dated December 27, 1960, which stated, among other things:
“Since the check was not honored on presentation, the premium is not paid and your policy has lapsed or will lapse as of 10:00 A.M. on the date the premium was or is due.
“Consideration will be given to the reinstatement of your policy upon payment of the premium.” Only the November 29, *341 I960, to February 29, 1961, policy had a period with a 10:00 a.m. time provision.
It was stipulated that mail deposited in the United States post office in Columbia, in December and January, 1960 and 1961, would be delivered to an addressee in Bucklin the following day; however, according to Mrs. Humphrey, Exhibit 6 was received by the Humphreys “around the 6th” of January, 1961. She was “positive” that the letter was not in their mailbox upon their return home from Christmas vacation at Silex.
On Friday, January 6, 1961, in response to the M.F.A. letter, Mrs. Humphrey went to the Bucklin post office and purchased a money order for $11.45. She took it home and wrote, as of January 6, 1961, on the back of Exhibit 6:
“Dear Sirs:
“Am so sorry that the check I sent to you in November of 1960 did not clear at the bank.
“Enclosed find money-order to cover the amount.” She mailed the check and Exhibit 6 containing her note to appellant from Bucklin at 7:30 a.m., January 7, 1961. Mr. Humphrey could not recall when he read Exhibit 6 but he then knew he owed “M.F.A. money for insurance.”
The money order arrived at appellant’s office in Columbia after 8 a.m., Monday, January 9, 1961, and it and Exhibit 6 were sent to the automobile underwriting department with a notation made on Exhibit 6: “Nancy, reinstate effective 1-9-61-9 :A.M.”
Mr. Humphrey’s first day on a new job with National Car Loading in Kansas City, Missouri, was to be January 9, 1961, and, while driving from Bucklin to Kansas City at about 6:10 a.m., that date, he had the collision with Mr. Bartleman. On that or the following day, Mr. Humphrey was in Mr. Ralston’s office and advised him of the collision and that his 1958 Plymouth had been towed to a junkyard as a total loss. While in Ralston’s office, M.F.A.’s adjuster came in and he, too, was told of the collision and total loss of the Plymouth. By letter of January 12, 1961, to the Humphreys, M.F.A. acknowledged being “advised that your automobile was involved in an accident on January 9, 1961, at 6:10 A.M. * * *” and stated that their policy had lapsed November 29, 1960, and “was reinstated upon receipt of the premium on January 9, 1961, at 9:00 A.M.” The letter then denied coverage of claims arising from the accident.
The money order sent with the note on Exhibit 6 January 7, 1961, was cashed by M.F.A. by deposit in Boone County National Bank January 13, 1961, and it has kept the money. Also on January 13, 1961, after total wreck of the 1958 Plymouth, M.F.A. issued a new policy of insurance purporting to cover the 1958 Plymouth with a policy period from 9 a.m., January 9, 1961, to 12:01 a.m., April 9, 1961. This policy was mailed January 17, 1961, and was received by the Humphreys in Bucklin January 18, 1961. Sometime in late January they substituted a 1957 Plymouth and renewed the policy at least twice. The Humphreys had made no further application for new insurance after the November 29, 1960, application in Mr. Ralston’s office which resulted in the policy in question, Exhibit 4, for which Mrs. Humphrey gave the check which she paid by money order mailed January 7, 1961. They had never failed to pay any previous premium, and they had never paid by a check subsequently dishonored.
Under Section 491.030, V.A.M.S., respondent called Phil Dysart who, at trial, had been with M.F.A. over 19 years and who, in November and December 1960, and January 1961, was manager of M.F.A.’s policy service department in the automobile division. He was policy services manager for 14 years with duties of supervising employees in issuance of new policies and changes affecting coverage, periods, and application for new policies for previous insureds. He was assistant director of training at trial time. Mr. Dysart’s deposi *342 tion, along with those of Mr. Moseley from accounting and Mr. Barnes from automobile underwriting, were taken January 7, 1967. He conceded he had had ample time to confer with counsel and consider his answers. On the night before trial, Mr. Dy-sart changed some of his answers with “reason given by witness for changes was to make the answers complete and accurate.” The deposition was signed by the witness prior to trial.
Respondent used original answers in the deposition to adduce evidence that the $11.-45 check had been entered as a paid premium; that the policy was not issued until a premium was paid; that the records showed premium paid prior to issue of Exhibit 4, the policy in question; that M.F.A. issued the policy only when the premium was paid; and that premium reserves were set up as though cash had been paid. Upon direction by the court, respondent also read the answers as corrected which contained added language that “if a check is involved the policy is issued (and premium reserves are credited) subject to the check being honored and paid.”
Mr. Dysart also testified that the IBM cards were punched as though the premium had been paid in cash; that the declaration page and premium reserve were handled as though the premium had been in cash; that the agent’s commission was handled as a cash premium situation; that from December 1 until December 22, 1960, this transaction was handled by MFA in every respect as if the premium had been paid in cash. According to him, the reference to “renewal premium” in the policy declarations was the premium to become due prior to February 29, 1961, and that when the policy was issued December 9, 1960, the binder was no longer effective and that its reference to coverage being void if a check were not honored was not in the policy.
Resolution of appellant’s contention that it was entitled to a directed verdict on the ground respondent failed to make a sub-missible case suggests, at the outset, recognition of certain familiar propositions and authorities cited by the parties:
The law of contracts applies to an insurance policy; any claim or suit by either party must be based on the policy issued, Hartford Acc. & Indem. Co. v. Farmington Auction, Inc., Mo.App.,
In absence of agreement to the contrary, delivery of a check to a creditor and his acceptance of it is not payment of the debt or obligation until the check has itself been paid, and when the check is not paid, it may not be said to have constituted payment of the debt or obligation for which given. G. F. C. Corp. v. Nesser, Mo.,
“Waiver” has been defined as an intentional relinquishment of a known right, on the question of which intention of the party charged with waiver is controlling and, if not shown by express declarations but implied by conduct, there must be a clear, unequivocal, and decisive act of party showing such purpose, and so consistent with intention to waive that no other reasonable explanation is possible. Lucas Hunt Village Co. v. Klein,
On the issue of unreasonable delay in presentment of a check, the rule is that when a check is delivered by drawer to payee in the same place where the drawee bank is located, a reasonable time for presentment, absent cause for delay, is within banking hours on the day of, or the day after, its delivery; when drawn on a distant bank or on a local bank to be sent to the payee at a distant point, it should be forwarded for presentment and collection on or before the day after delivery, and when facts to excuse delay are disputed, the question is for the jury. Farm & Home Savings & Loan Ass’n of Missouri v. Stubbs, Mo.App.,
Under these authorities, the fact statement demonstrates a submissible case on behalf of respondent on either of the grounds of Instruction 2.
The issuance on December 9, 1960, and the delivery on December 13, 1960, of Exhibit 4 by appellant, and its acceptance on December 14, 1960, by the Humphreys, consummated the contract of liability insurance between the Humphreys and appellant. That policy, by its provisions, embodied the entire agreement between those parties and it contained no condition such as effectiveness only if the premium is paid or if a check is honored. It it was the intention of M.F.A. to limit its liability by such conditions, it could have used such language or the language of its binder or renewal certificate, both of which, according to Mr. Dysart, were no longer effective after issuance of the policy. The letter of December 27, 1960, spoke of the policy in terms, “has lapsed or will lapse,” which imply that the policy had been in force because a policy could lapse only if once in force. The letter is also supportive of a finding that it was simply a request for payment of the dishonored check in that it induced Mrs. Humphrey to write a note of apology for failure of her check to be honored and to enclose a money order “to cover” it and to pay for existing coverage for which they knew they *344 “owed” as opposed to purchasing new coverage. The payment “to cover” was cashed by appellant and only upon appellant’s refusal to defend the Bartleman suit were the Humphreys conclusively advised that the money order had been applied to a policy they did not order and issued as coverage on an automobile no longer in service, a fact known to the issuing insurer.
The authorities cited leave no question that M.F.A. had the right to treat the check as a conditional payment of the policy premium, and M.F.A., by expressing the reservation of the right in its binder, indicated its knowledge of the right. The right to treat a check given for an insurance premium as conditional payment can be waived, however, within ihe meaning of the cases defining “waiver.” In Sjoberg v. State Auto Ins. Ass’n of Des Moines, N. D.,
Under such circumstances, the policy was the equivalent of an unconditional receipt, at least to the extent of raising a jury question on unconditional receipt of premium, thereby placing insurance in force with a period extending through the date of casualty. In point with respondent’s case is Mitchell v. Farm
*345
ers Ins. Exchange, Mo.,
Certain of appellant’s citations are subject to further distinction: In Gill v. Mercantile Trust Co., supra, the only evidence tending to show waiver of conditional payment or unconditional acceptance was an indication on a ledger sheet of payment received; in Le Page v. Metropolitan Life Ins. Co., supra, there was no evidence of an agreement to accept a check in payment of the premium and a conditional receipt had been given for the check; and in Hickerson v. Con Frazier Buick Co., supra, the bill of sale issued to the purchaser of an automobile was no evidence of acceptance of a check in lieu of cash because the bill of sale was only a compliance with the mandate of Section 301.200(2), V.A.M.S., that a dealer shall deliver a bill of sale to the purchaser of a new car. National Union Fire Ins. Co. v. Want,
Particularly with respect to the submission of unreasonable delay in processing the check and resultant prejudice, note from the fact statement that appellant’s agent in Bucklin, at 10 a. m., November 29, took possession of a check drawn on the Bucklin bank payable to M. F.A. Presentment was not undertaken until December 13, and it was not presented to the drawee bank until December 16. Appellant does not undertake any showing or argument of cause for delay within the rule of Farm & Home Savings & Loan Ass’n v. Stubbs, supra, except that the check and application were part of a normal transaction and that the matter was handled in the normal course of business. There was no evidence that the delay in presentment was custom and usage in the insurance industry. It is not shown that appellant’s agent (who had enough authority to execute binders) could not have cashed the check in Bucklin on the morning he received it or that he could not have at least ascertained the status of the drawer’s account there. Nor is there any showing that appellant, upon receipt of the check on December 1, could not have started it immediately through collection channels. The authorities quoted would rule against an 18-day delay being a reasonable presentment as a matter of law, and the question of unreasonable delay was, therefore, for the jury.
In the matter of prejudice, “the drawer of a check is entitled to notice of its non-payment within a reasonable time, in order that he may take any steps which are available to him to protect his interest,” Selby v. McCullough,
Appellant attacks Instruction 2 on several grounds. It charges that it failed to hypothesize “all essential fact issues necessary to establish the legal proposition on which the right to the verdict is based,” Myers v. Buchanan, Mo.,
It has already been demonstrated that respondent adduced evidentiary support sufficient to make a submissible case on both theories of recovery in Instruction 2.
A verdict-directing instruction need not be as detailed as in the past and it should submit only the ultimate fact issues. Price v. Seidler, Mo.,
The attack on “treated” is unwarranted because it has a familiar usage in that “treat” commonly means "to deal with or bear oneself toward in some specified way: behave or act towards: assume an attitude or form of behavior to: * * * syn DEAL (with), HANDLE: TREAT in the sense of doing about, serving, or coping with is usu. accompanied by context indicating an attitude, temperament, point of view determining behavior or a manner of approach or execution * * *.” Webster’s Third New International Dictionary, pp. 2434-2435. In Mitchell v. Farmers Ins. Exchange, supra,
Since use of "treated” was proper under the authorities, no error of roving commission was committed on that ground.
As stated by appellant, verdict-directing instructions must negative affirmative defenses, Moore v. Ready Mixed Concrete Co., Mo.,
Neither is the second part of Instruction 2 subject to a charge of roving commission for failure to define its terms. It submitted the ultimate facts of unreasonable de *349 lay and prejudice, both of which are terms within the understanding of jurors. Tietjens v. General Motors Corp., supra.
Appellant complains of the refusal to give its offered Instruction A, hut no error could have been committed by such refusal because the instruction is virtually identical to Instruction 2 given on behalf of appellant and without objection on its part.
Appellant charges error in permitting respondent to call witness Dysart under Section 491.030, V.A.M.S., in allowing him to be cross-examined, and in permitting an attempt to impeach and attack the credibility of Mr. Dysart. The argument is that Mr. Dysart was not a party to permit his calling as a witness under Section 491.030; that he was not subject to impeachment; and that the court permitted respondent to insinuate to the jury that Mr. Dysart had done something wrong in correcting his answers.
Section 491.030 provides that any party to a civil suit may call any adverse party to testify as a witness in his behalf and “the party so called * * * may be examined * * * under the rules (of) cross-examination.” Under this provision it has been proper to call one employed as president and general manager of a defendant company, Neuhoff Bros. Packers v. Kansas City Dressed Beef Co., Mo.App.,
The charge of impeachment by inconsistent statements through improper use of deposition may be disposed of summarily because appellant recognizes the absence of such impeachment when it asserts in its brief that the testimony of Mr. Dy-sart, whether plaintiff’s own witness or adverse party, “was in complete harmony with his testimony on deposition after he had completed and corrected his answers,” and that “the corrected and completed testimony of Witness Dysart was consistent with other testimony originally given by him on his deposition.” Slaughter v. Sweet & Piper Horse and Mule Co., Mo. App.,
Appellant’s charge that respondent’s examination of witness Dysart was an attempt to make it appear to the jury that witness Dysart had done something wrong is based on Burnam v. Chicago Great Western R. Co.,
Judgment affirmed.
The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.