Provident Savings Life Assur. Soc. v. Nixon

73 F. 144 | 9th Cir. | 1896

McKENNA. Circuit Judge,

after stating the case as above, delivered the opinion of the court.

The statute is explicit as to when and where and how notice shall be sent to the assured that a premium is due. The provision and language is that it “shall be duly addressed and mailed to the person whose life is assured * * * at his or her last known post-office address, .postage paid by the company, or by an agent of such company, or person appointed by it to collect such premium.” 3 Rev. St. (8th Ed.) 1686. It is contended by plaintiff that his proof shows a compliance with the statute. It does not explicitly, but it is claimed as an inference from the word “mailed”; and that this word implies prepayment of postage is said to be supported by the following cases: Pier v. Heinrichshoffen, 67 Mo. 163; Bussard v. Levering, 6 Wheat. 102; Lindenberger v. Beall, 6 Wheat. 104; Sanderson’s Adm’r v. Reinstadler, 31 Mo. 483; Renshaw v. Triplett, 23 Mo. 213, at page 220; Rosenthal v. Walker, 111 U. S. 185, 4 Sup. Ct. 382; Schutz v. Jordan, 141 U. S. 213, 11 Sup. Ct. 906; Bank v. De Groot, 43 N. Y. Super. Ct. 341. But two of these are in point. The others only hold that notice, in the instances mentioned by them, could be given by mail. The fact or necessity of prepayment of postage was not raised. Both appear to have been taken for granted. Indeed, in one case (Rosenthal v. Walker) it appeared that postage was prepaid. Page 196, 111 U. S., and page 382, 4 Sup. Ct. In Pier v. Heinrichshoffen a notary public made affidavit that he “mailed” certain notices of protest. The testimony was objected to on the ground that he did not state that the postage on said notice was prepaid. The lower court sustained the objection, and excluded the evidence. The appellate court reversed the ruling. The language of the appellate court is as follows:

“Objections are also made to tbe notice which was given by the notary. The certificates of protest are as follows: ‘Due notices of the foregoing presentment, demand, refusal, and protest were put in the post-oflic.e at St. Paul, as aforesaid, and directed as follows: Notice for Katharina Ambs, directed St. Louis, Mo.; notice for W. and R. Heinrichshoffen, directed St. Louis, Mo.’ And the notary testified, ‘I personally mailed such notice in the post office on the 15th day of July, A. D. 1861.’ The objection is that he did not say that lie had prepaid the postage, and the court instructed the jury that this was necessary. This objection is rather hypercritical. The word ‘mailed,’ as applied to a letter, means that the letter was properly prepared for transmission by the servants of the postal department, and that it was put in the custody of the officer charged with the duty of forwarding the mail. Indeed, the words, ‘put into the post office,’ as used by the notary, have a technical significance which is well defined, and they are commonly employed to designate the duty of the holder .in giving notice. Since the enactment of the' laws requiring all mail matter to be prepaid, these words have been used by this court in the sense of ‘mailed.’ * * * It sufficiently appears in the present case that the notice was properly directed. The evident and only meaning of the notary’s certificate is that the notice was mailed to the defendants at St. Louis, Mo. The judgment will be reversed, 'and the cause remanded.”

In Bank v. De Groot, 43 N. Y. Super. Ct. 341, the same question was presented on the same state of facts as existed in the case of Pier v. Heinrichshoffen. The language of the court is as follows:

“In corroboration and explanation of the memoranda of the notary it was proved at the trial, and without objection, that the notices of protest were put in envelopes, and directed to the defendant at his place of business, No. 142 Fulton street, New York City, and delivered, thus inclosed and directed, by the notary, whose custom it was to mail such notices in the general post office of the city of New York. At the trial the defendant did not testify that lie failed to receive the notices of protest of tlie notes. The defendant, objected that there was no evidence that the notices were sealed up, and postage prepaid, and when and where they were put in the post office. The statute (3 Rev. St. [5th Ed.] p. 71, § 29) does not require tlie notices to be sealed up, and the memoranda of the notary in his official register sufficiently designate when and where they wore mailed. A question was raised on the argument as to the meaning of the term ‘mailed.’ The word is usually employed to designate the placing of letters or parcels in a post office, to be delivered under the public authority. The delivery of this class of mail matter is prohibited unless the postage thereon ts prepaid. Rev. St. U. S. §§ 3896, 3900. When the word ‘mailed’ appears as a note or memorandum in tlie official register of a deceased notary, it is consistent with reason and the actual meaning of tlie term to presume that it describes what that act in its common and ordinary performance calls for, and more especially is this the ease when there is other proof corroborating and explaining enfries.”

We should be disposed to follow these decisions if (he witnesses of plaintiff in error had testified that they had mailed tlie notices, without adding explanations; certainly to the extent of holding that the testimony should have been submitted to the jury. It is true that William E. Stevens, secretary of (he company, testifies that the notices were mailed; but this was hearsay, and properly excluded. The other two witnesses, Meeder and Prosser, testify, as to the point involved, very much alike; and while each, in reply to the .question if he had mailed the notices, answered “Yes,” each enumerated what lie did, and did not include in the enumeration payment of postage. To allow the testimony to be proof of the requirements of the statute; would be to relax it too much, and afford opportunity for its evasion. See Haskins v. Benefit Soc., 7 Ky. Law Rep. 371.

The judgment of the circuit court is therefore affirmed.