*1 drainage problems because of the roof’s design.

Damages repair awarded for the approximate

roof one-third of the cost of building. Considering that Reindl re- $2,730

covers for damages baby for lost

pigs, up Reindl ends with a 24' 72' build-

ing on his farm for I virtually nothing.

consider this manifestly unjust. An owner

who inexpensively instructs that an de-

signed improvement real estate be made bargain

does not for and is not entitled to

receive an optimal improvement such as designed

would be experienced engi- an

neer, therefore, the owner is not entitled to

recover from the anything contractor be-

yond for, what the contract called a less

than optimum structure. Oakwood Villa Gulu,

Apartments, Inc. v. Mich.App.

157 N.W.2d 816 Whatever hap-

pened adage to the old get you “You what

pay for”?

Raymond COX, Appellant, Plaintiff

BROOKINGS LIFE INTERNATIONAL COMPANY,

INSURANCE Defendant Appellee.

No. 13777. Dakota. Court South

Argued Nov.

Decided March

the family bills which premiums included thirteen types various policies. insurance Cox testified that he depended upon receiv- ing notice in the mail from the insurance companies were due in order to know when pay premiums. On 10, 1978, June Steven was killed in a car accident. After Cox notified Company of death, he Steven’s received a letter from Company him advising coverage under policy lapsed due to nonpayment of the premium which was due on April 1978. Cox initiated this action to recover and, on the policy at the close of all the evidence on motion of the Company the trial court directed a verdict for Company. appeal This follows.

In reviewing verdict, a directed court views the evidence in a light most favorable to the nonmoving party gives that party the benefit all reasonable Reed C. Richards, Richards of Richards & inferences; if enough there is evidence to Deadwood, for plaintiff appellant. allow differ, reasonable minds to then the Danforth, G.J. Danforth, Jr. of Danforth directed verdict was inappropriate. Smith Johnson, Falls, & Sioux for defendant and (S.D.1978); 273 N.W.2d 146 appellee; Robert L. Mabee Danforth, Lytle v. Morgan, (S.D. 270 N.W.2d 359 Johnson, Danforth Falls, & Sioux on the 1978); Wessel, Beck v. (S.D. brief. 1976). MORGAN, Justice. The threshold issue on this appeal is whether necessary notice is and if so what This appeal arises from an action to re- adequate constitutes notice to an insured cover the proceeds of an insurance contract premium that an insurance is due. Compa- brought by the beneficiary, Raymond Cox ny first argues that since the policy of appellant (Cox), against Brookings Interna- insurance, which premium contains the tional Life Insurance Company, appellee dates, amounts and the due (Company). makes no fur- After both rested, sides had provision require the trial court ther poli- directed a notice to the verdict in favor of Company appeals. cyholders, and Cox no notice We affirm is due because the poli- part, part, reverse in cy remand. owner has actual knowledge of both the amount and due date thereof. argu- This April applied Cox’s wife ment unsupportable. compa- Insurance and received a life policy insurance on their nies generally are interested in collecting son, Steven, had, from Company. Mrs. Cox premiums. They notices, send out usually regular as a practice, responsi- assumed the well in advance of the due date. Such bility gather the monthly bills and write notices universally almost furnish policy- checks payment the family expenses, holders not only “tickler” reminder of the premiums. insurance Upon her death in upcoming envelope October of due date Cox succeeded to but a return ownership properly addressed and a policy coupon as he was the or other sole surviving beneficiary. From that time he memo to be returned with payment also assumed responsibility for payment of proper accounting. insure dict. it general

We note the rule that contends that mailed a Cox; however, necessity give for an insurance notice to Cox testi- notice to an insured of a due even fied that not receive it. he did provision policy absent a be based that proof It is well established practice of the particular insurer. in a mailing by depositing proper letter *3 (1960); Couch on Insurance at 661 30:128 mail receptacle, properly addressed and (1982); 43 Am.Jur.2d Insurance 849 Seav stamped, of presumption delivery raises to Erickson, ey 232, v. 244 Minn. 69 N.W.2d addressed; however, person the it is only a (1955); 889 Pester v. Family American Mu Ebert presumption. rebuttable See v. Fort Co., 793, tual Insurance 186 Neb. 186 1813, 312 N.W.2d Lodge # Pierre Moose v. Carfagnini Service v. (S.D.1981); Ipswich Harding Bank of 119 Omaha, Life Insurance Co. of 113 N.J.Su 261, Co., Etc., Ins. 225 N.W. 55 S.D. County, 469, per. (1971). 274 A.2d 303 Cf. Presenta trial, Company the went to 721 Sisters, tion Inc. v. Mutual Ben. Life Ins. mailing. great proper to establish lengths Co., 678, 85 (1971) (no S.D. 452 N.W.2d offi testimony There was notice required assignee policies to an of as to the employee cial and a mailroom assigned collateral security as for liabili demonstrate logs mail that procedure, and ties). As stated the Minnesota in particular question. mailing piece Seavey, Court in supra, this rule is: say we cannot From the record before us has Where it been that it established is finding court in that that the trial erred the practice custom and of the insurer to delivery. there of presumption was give notice of the payment time for he had not however, only testified that not renewal premium knowledge and of such went notice but further received the acquired by custom is an in insured deal- own house demonstrate his lengths some ings insurer, the with the insurer has a mail, incoming handling hold right rely notice, and, on such in the notices. Cox premium bills thereof, absence the policy may not be during period the also demonstrated terminated without giving forfeited June, during to late early February from some insured notice that such custom occurred, he had sent lapse time the has been abandoned. on thirteen of payment checks in Minn, 243-44, at 69 N.W.2d at 897 paid were in five of which policies; other (footnote omitted). concededly the May. While the month of would not be receipt alone mere denial of life The insurance policy insuring substan presented Cox other enough, since Steven was entered into April on this court agree we with what tial evidence when Steven was years fourteen of age. Ipswich: stated in Bank The policy provided for quarterly premiums presumption, sup- This rebuttable quarter each Company notified the porting [Company] on behalf Cox’ in advance that $10.50 receipt supporting and denial of with its would be due. Cox at testified trial that he such, part [Cox], was testimony on relied on such notice that a due opinion, question in our as to make the date was forthcoming in order to pay the subject receipt a for the determination of premium. Accordingly, because Company fact. the trier of notified quarter Cox each that the premium on policy due, this (citation was re 225 N.W. at S.D. quired to continue practice omitted). this unless it specifically notified Cox that it would dis verdict, reviewing this directed continue such notification. in a light this court view the evidence must

Company next asserts v. strongest its most to Cox. point, favorable Smith in proper fact Morgan, notice Beck v. premium supra; Lytle supra; due was given to Wessel, enough Cox. evi supra. This is the view Since there is differ, trial adopted court directing reasonable minds the ver- dence to allow the directed inappropriate. (1) may verdict was The evidence refer only The trial court permitted should have character for truthfulness or untruth- trier of fact to determine the issue of re- fulness, and ceipt. (2) of truthful character Evidence Although remanding we are this only admissible after character of case, since, we address the second issue the witness for truthfulness has been remand, the trial court have to recon by opinion reputation attacked evi- sider question. The second issue on dence or otherwise. appeal is the admissibility as to 3 Weinstein’s According Evidence to Cox’s reputation veracity. The trial (1981), purpose 608-3 of F.R.E. 608 court here permit refused to (SDCL 19-14-9) develop exception is to appeals Cox from refusal. 404(a) (SDCL 19-12-4) stated in F.R.E. Cox contends that he did not receive no- *4 only character as admissible tice that the insurance was due. bearing upon credibility the of a witness. Accordingly, he attempted to introduce tes- (SDCL 19-14-9), Under F.R.E. 608 charac- minister, banker, timony of neigh- and a ter evidence credibility only is admissible bor as good reputation to his in the commu- after the witness’ character has first been nity veracity. Cox contends the trial attacked. 3 Weinstein’s Evidence 608-5 court could have admitted the testimony (1981). This is as the case has been at under SDCL 19-16-25. That rule adopted 49, p. common law. McCormick from Federal (F.R.E.) § Rule of Evidence 803(21),provides: “Reputation person’s Wigmore (1972). of a § character among his associates or in the Consequently, for the trial court to admit community 19-16-4, is not excluded by § here, testimony the the evidence must show even though the declarant is available as a character Cox’s has first been at- witness.” 19-16-4 general SDCL is the tacked. To determine whether a witness’ rule providing hearsay evidence is in- reputation attacked, has been 3 Weinstein’s admissible.1 (1981) Evidence 608-5 states: that, the court ruled while the Opinion reputation or that the witness is evidence could be admitted under SDCL untruthful specifically qualifies as an at- 19-16-25, there are two limiting statutes rule, tack under the and evidence of mis- that provision, SDCL 19-12-4 and 19-14-9. conduct, crime, conviction of (F.R.E. SDCL 19-12-4 404(a)) provides, in corruption and of also fall within this pertinent part: category. Evidence of bias or interest person’s Evidence of a character or a 49; Wigmore does not. McCormick trait of his character is not admissible for 1106, 1107. Whether evidence in the §§ purpose the proving that he acted in upon form of contradiction is an attack conformity therewith particular on a oc- the character of the depend witness must casion, except:

upon the circumstances. McCormick Wigmore 49. Cf. 4 §§ (3) Evidence of the character of a wit- ness, provided as 19-14-8 to 19- §§ Company testimony Id. introduced indicat- 14-16, inclusive. ing that have may Cox an interest in testi- (F.R.E. 608(a)) fying SDCL 19-14-9 that he did not receive the notice. provides: Weinstein, According testimony The credibility witness merely indicating corruption attacked bias or does supported or by evidence in the form of opinion or not reputation, subject qualify reputa- but as an attack on Cox’s to these limitations: tion. prescribed by SDCL 19-16-4 states: other rules the Hearsay Court. except provided is not admissible as by chapters 19-18, inclusive, law or 19-9 to

Additionally, only evidence of a ny, con- the insurance company shored its case tradictory nature up was the beautifully personnel from Ohio employees explaining proce- its overall were followed to proverbial dures mailing yes, “T.” And according notice of this defense testimony, computers due. This testimony may have been contra- safeguards for default dictory provisions, and any Cox’s that he did not malfunction would trigger computer receive the notice. The test to ascertain recycle print an entire whether batch of this contradictory evidence is an um notices. attack, per Conclusion: defense testi- depends upon the circumstances. 3 mony, computer and all mailing proce- Weinstein’s Evidence 608-5 Con- dures were faultless. sidering us, the record before including the testimony of Company’s witnesses and the essence, This insurance company, in relied cross-examination of the evidence does upon its computers, mailing logs, sup- not indicate that reputation Cox’s was at- posed procedures. faultless Based tacked. Accordingly, under the circum- faultless programming, trial court de- below, stances of the trial the court correct- termined that plaintiff-ap- evidence of ly denied admission of this testimony.2 pellant competent probative, was not determined, further by theory, We affirm in part, reverse in part, and agent South Dakota of the insurance com- remand. pany personal did not have knowledge of computer operations. the Ohio The DUNN, JJ., verdict WOLLMAN and *5 concur. was against directed the plaintiff-appellant HENDERSON, J., concurs specially. for, see, you how the infallibility could FOSHEIM, C.J., dissents. Alas, the procedures questioned? a hu- man element was in the case for some- HENDERSON, Justice, specially concur- where, somehow, agent as an of the insur- ring. company, ance Mr. Roth learned of the Computers organizational procedures trouble with the computer operation in in an insurance company, are they infalli- Oh, Ohio. woe unto the doctrine of com- ble? Do computers make mistakes? Are puter infallibility. A to this key is found in all in insurance companies for the testimony company’s of one of the ex- mailing out premium perfect? notices perts who admitted the company did that mortals, Are we who invented the com- not keep malfunction “as a secret.” puters, enslaved to supposed their correct- witness, expert From this same came the ness? Or do we still have the intellectual revelation that premiums there were which right question their propriety, authentici- the company received late and some were ty, reliability, and the possibility of mal- as late as approximately days. Grace function? periods During had to be considered. this Well, behold, lo and plaintiff-appellant phase company expert of the this at- testified herein concerning the reliability of tempted to restrict these late ato computer, which evidence went into time unrelated to the plaintiff-appellant’s record objection without and before premium. due To repeat: timetable jury, that defendant-appellee’s agent in germane plaintiff-appellant’s premi- was Dakota, Roth, South a Mr. expressed had um via company’s of the li- company’s his computers agent malfunc- censed in South Dakota. tioned “at that time.” “At that time” re- officials him as one of top described their ferred approximate to the time when pre- representatives and It developed salesmen. out, mium notices were sent Mr. during included Roth had a time-frame germane appellant’s to telephone access communication with the um Indeed, notice. in its defense testimo- being, and the malfunction no se- remand, testimony, On based new trial court have to reconsider this issue. cret, became knowledge (S.D.1980), to him. The mal- my opinion I expressed function of the computer which processed presumptions applicable of law and it is premiums was knowledge within the com- my thoughts herein: pany at Ohio and apparently spilled over A presumption just that: It is like a into its office Brookings, South Dakota. bird, night that flits about in the twilight Thus, in my opinion, the trial court should dark, and into disappears but under toto, not have disregarded, in the testimony the light and sunshine of actual facts. of Mr. Roth relating to the computer mal- The sunshine probe of the facts and re- function. It was highly relevant as to the law; veal more than a presumption of we receipt notice by plaintiff-ap- this. sight must never lose pellant. A classic question of fact arose As the human justice dimension of cannot and it was for the jury to determine that be sacrificed for the purity ostensible question of fact and not the trial court. computer world, join I the majority opinion. Further, I add that it is altogether conceiv- able that there was human error for the FOSHEIM, Justice, dissenting. Chief facts additionally quar- disclose: terly notices, first generated by computer The trial court correctly directed a ver- Ohio, were then sent to Brookings, dict for South the insurance I company. cannot Dakota, there matched placed hand and agree presented that Cox “other substantial in an envelope, to be then policy- mailed to evidence,” denial, in addition to his mere holders such as plaintiff-appellant. that he did not receive notice. How Cox said he incoming handled his mail or that he These presumptions of law are based paid premiums on other policies is irrele- upon hypothesis. I refuse hypothesize proves vant and nothing beyond his self- that computers cannot err. That plaintiff- serving statement as to notice. On the appellant presumed to have received hand, other company proved, insurance notice, was surely a rebut- pursuant statute,1 to the business records table presumption. it notified Cox not only by mail but The presumption of receipt of a letter True, also by telephone. telephone call duly mailed is ordinarily indulged in only *6 by son, taken appellant’s Steven when there is an absence of evidence to then 17 years age. of proc- Our service of the contrary. Roshek Realty Company v. statutes, however, ess allow notice of the Roshek 349, Brothers Company, 249 Iowa suit, commencement of a law for an unlim- 87 Am.Jur.2d, 29 Evi- amount, by ited service year on a 14 old. dence 15-6-4(e). SDCL Can we properly demand Ebert v. Fort Pierre 1813, Lodge Moose # more regarding an insurance contract which 119, 312 N.W.2d (S.D.1981). aBy wisp doesn’t require even the giving of notice. of mental process, these presumptions of law are created. When facts The evidence come into does not leave room for negate presumption, reasonable these minds to differ about whether law, presumptions of flit about in Cox was notified. Smith v. theory like a butterfly, lose their credible N.W.2d (S.D.1978). To hold otherwise force, for they cannot contend against reali- would anyone allow who has let an insur- ty. In Matter Voorhees, 294 N.W.2d policy lapse ance for nonpayment 1. memorandum, SDCL 19-16-10 witness, reads: A qualified re- the custodian or other is not port, record, compilation, any form, 19-16-4, data though excluded even the declar- acts, events, conditions, opinions, diag- witness, ant is available as a unless the source noses, by, made at or near the time or from of information or the method or circumstances by, person information transmitted preparation indicate lack of trustworthiness. knowledge, kept if regularly in the course of a The term “business” as used in this section activity, conducted business and if business, it was the institution, association, pro- includes regular practice activity of that fession, business occupation, kind, calling every memorandum, record, report, make the or data profit. whether or not conducted compilation, all as shown

nm recovery nevertheless seek by simply

jury, saying, “I not recall do

getting a notice.” It would thus tend

encourage fraud and destabilize the insur- industry.

ance Dakota,

STATE of South Plaintiff Appellee,

Harry PRESTON, Jr., Andrew Appellant.

Defendant and

No. 13723.

Supreme Court of South Dakota.

Considered on Briefs Feb.

Decided March Wilson, Pierre, Gen.,

Curtis Asst. Atty. G. plaintiff appellee; Mark V. Meier- henry, Atty. Gen., Pierre, on the brief. Neiles, Joseph County Minnehaha Public Defender, Falls, Sioux for defendant and appellant.

DUNN, Justice. *7 appeal judgment

This is an burglary degree sentence for in the first pursuant rape SDCL 22-32-1 and in the 22-22-1(1). degree pursuant first to SDCL We affirm. morning July the early hours of

1981, the victim in this case was awakened opened. As- being sound of a door get suming boyfriend her had arrived to got something, victim out of bed point walked toward the kitchen. she saw a man whom she later identified as Preston, Harry Andrew (appellant) Jr. walking her. she toward She testified that keep was told and was then struck quiet