author: STONE, Judge. PER CURIAM.

text:
    Claude J. HOOD, Plaintiff-Respondent, v. M. F. A. MUTUAL INSURANCE COMPANY, a corporation, Defendant-Appellant.
    No. 8235.
    Springfield Court of Appeals. Missouri.
    May 28, 1964.
    Motion for Rehearing or to Transfer Stricken on June 23, 1964.

      William H. Burden, Joplin, for defendant-appellant.
    Combs & Denney, Kansas City, Max H. Glover, Webb City, for plaintiff-respondent.
   STONE, Judge.

In this jury-tried action for recovery under the collision coverage alleged to have been afforded by an automobile insurance policy issued by M.F.A. Mutual Insurance Company, the defendant herein, plaintiff Claude J. Hood initially had judgment for $1,500 upon the jury verdict in that amount. Upon plaintiff’s remittitur of $550, defendant’s motion for new trial was overruled, and this appeal by defendant from the reduced judgment of $950 has followed.

By defendant’s Policy No. 1-248028 (hereinafter referred to as the policy) issued to plaintiff, whose occupation was shown as carpenter and whose address was given as Sarcoxie, Jasper County, Missouri, defendant afforded various coverages, including $50 deductible collision coverage, to plaintiff upon a 1955 Ford tudor for the policy period “from February 20, 1956 at 9:00 AM. to April 2, 1956 at 12:01 AM. standard time * * * and for terms of such duration each thereafter as the required renewal premium is paid by the insured [plaintiff] on or before expiration of the current term and received by the company.” (All emphasis herein is ours.) On April 5, 1956, plaintiff’s Ford automobile was damaged in a collision in Kansas City, Missouri, where plaintiff then was (and for some time had been) working.

The basic factual issue litigated upon trial was whether “the required renewal premium” of $40.84 for the next succeeding policy term of six months had been paid by plaintiff prior to expiration of “the current term,” i. e., prior to 12:01 A.M. on April 2, 1956, “and received by the company.” Plaintiff testified that “along around five o’clock” in the afternoon of Friday, March 30, 1956, he “went down to Smith Drug Store” at 35th and Prospect in Kansas City, where he purchased an American Express money order for $40.84. “I [plaintiff] filled out the money order to Lloyd Rush [defendant’s agent], Carthage, for this premium. 1 put it in an envelope and taken the envelope out and dropped it in the mailbox * * The envelope was ad-dréssed to “Lloyd Rush, M.F.A. Agency, South Side of the Square, Carthage, Missouri,” and bore a three-cent stamp and plaintiff’s return address. When asked about when the mail was collected at that box, plaintiff’s puzzling, obfuscous answer was: “I had mailed several letters on there at that mailbox and I had mailed them at home and the mail was always picked up before six A.M. or six P.M. in the evening. It was picked up before six is the reason I would mail the letters before six so they would be picked up.” No other evidence even remotely pertained to the time or frequency of collections at that mailbox, and there was no evidence as to the usual course ■of mail from that point to Carthage, Missouri, or as to the time ordinarily required for transmission to and delivery in Carthage.

Upon trial, plaintiff introduced in evidence the “sender’s receipt” for American Express money order No. KC-10,587,821 (hereinafter referred to as the money order). One side of the “sender’s receipt” bore the printed money order serial number, the (dimly) stamped date of “MAR 30 1956," and the handwritten (in ink) amount of $40.84. The other side showed “Sent to Lloyd Rush 3-30-56 For 1955 Ford Ins. Date 3-30-56.” (The italicized words and figures were handwritten in ink, and some of the figures following “Date” appear to have been written over other figures.) The record does not identify the person who wrote $40.84 on the “sender’s receipt,” but admittedly plaintiff inserted the handwritten words and figures on the other side. Strangely (so it seems to us) neither party offered any evidence as to what the records of the American Express Company or its issuing agent, Smith Drug Store, showed concerning the money order. There was no suggestion that the money order ever had been presented for payment or paid, but the only specific evidence on this subject was that, in response to an inquiry, the American Express Company advised under date of June 19, 19S6, that the money order _ had not been paid. Prior to trial on February 8, 1963, plaintiff had made no effort to obtain a refund of the face amount of the money order.

Simply stated, defendant’s position has been and is that the money order was never received by agent Rush, that the renewal premium was not paid prior to 12:01 A.M. on April 2, 1956, and that the policy then terminated. During a period of about two years prior to April 1956, plaintiff had procured through Lloyd Rush of Carthage, as local agent, not only the policy affording coverage on plaintiff’s 1955 Ford tudor but also other insurance coverage. Defendant’s evidence was to the effect that renewal premium statements on its insurance policies (excepting those affording group hospitalization coverage) were mailed from its home office at Columbia, Missouri; and that, with each such statement, a self-addressed envelope was enclosed in which the policyholder might mail the premium payment to defendant’s home office. However, plaintiff said that he never had mailed a premium payment to defendant’s home office, but that all such payments had been made to agent Rush, some in person at Rush’s office and (when plaintiff was working “out of town”) some by mail addressed to Rush. And, although Rush testified that he was simply “a sales agent,” we have no doubt but that, on the evidence in its entirety, the jury reasonably might have found (as was required by plaintiff’s verdict-directing instruction 1) that Rush was “acting within the course and scope of his agency” for defendant in receiving premiums paid on policies issued through him as local agent. Cf. M.F.A. Mutual Ins. Co. v. Quinn, Mo.App., 259 S.W.2d 854, 857, 860.

Plaintiff reported the accident of April 5, 1956, to Rush at his office in Carthage on Saturday, April 7, and Rush then gave plaintiff a report form to be completed and returned. On the following Saturday, April 14, plaintiff personally delivered the completed report to Rush, in the meantime having obtained from the Kansas City police department detailed information about the accident. Rush (so he said) first discovered on April 14, “when I went to the file to finish up my report,” that the policy had terminated for nonpayment of the renewal premium. In a subsequent long distance telephone call from Kansas City on the evening of Monday, April 16, plaintiff gave Rush the serial number of the money order alleged to have been mailed on March 30, but Rush (still insisting that he had received no such remittance) definitely stated that “I [plaintiff] didn’t have no insurance, that it would be up to me and the company.”

Defendant’s first point on appeal is that plaintiff did not make a submissible case. Plaintiff relies on the general principle that evidence showing that mail matter has been properly addressed and mailed with postage prepaid raises a rebuttable presumption of fact (perhaps more correctly stated, permits an inference to be drawn) that such mail matter was received by the addressee in due course. It is true that, as defendant points out, the only direct evidence in these areas was to the effect that the money order was not paid and, in fact, was never received either at defendant’s home office or by agent Rush. But such evidence of nonreceipt and nonpayment did not nullify and destroy the so-called presumption of receipt, and the question of receipt remained in the case as one of fact to be determined by the jury under all of the evidence, with the burden of proving receipt still resting upon plaintiff. 31A C.J.S., Evidence, § 136e, loe. cit. 300-301.

However, in considering submissibility, we remain mindful that the basic factual issue was whether “the required renewal premium” of $40.84 had been paid by plaintiff prior to expiration of “the current term,” i. e., prior to 12:01 A.M. on April 2, 1956, “and received by the company.” If not, the policy then terminated. Plaintiff pleaded in his petition “that on or about the 30th day of March, 1956, the plaintiff paid * * * said premium” to Rush as defendant’s agent. And plaintiff’s verdict-directing instruction 1 required a finding, inter alia, “that on March 30, 1956 and before the expiration date of April 2, 1956 * * * plaintiff properly mailed the premium * * * of $40.84” in a postage prepaid envelope addressed to Rush and deposited in the United States mails in Kansas City, but no finding was required that the premium had been mailed in time to reach Rush in due course prior to expiration of “the current term” of the policy. Accordingly, it appears that plaintiff’s trial theory was that the renewal premium had been paid on March 30, 1956, by the act of depositing the money order in the United States mails in Kansas City. It was plaintiff’s burden to show that defendant had manifested, expressly or impliedly, an intention to accept the renewal premium, as of the time of mailing. Tippett v. Farmers’ Mut. Fire Ins. Co., Mo.App., 47 S.W.2d 225, 227(4). Nothing in the record so indicated. Quite to the contrary, the policy provided for continuation of coverage only if the required- renewal premium was paid prior to expiration of “the current term,” 1. e., prior to 12:01 A.M. on April 2, 1956, “and received by the company.”

In effect, defendant’s enclosure of a self-addressed envelope with the renewal premium statement invited plaintiff to mail the premium to defendant’s home office; and, if the finders of the facts had found that defendant theretofore had followed the practice of accepting premiums paid to Rush both in person and by mail, plaintiff’s alleged act of mailing the renewal premium to Rush, rather than to defendant’s home office, might have been found to have been within the scope of the invitation to pay by mail. Tippett, supra, 47 S.W.2d loc. cit. 227(1); Kenyon v. Knights Templar, etc., 122 N.Y. 247, 25 N.E. 299, 302. Even so, the permissible inference would have been that defendant intended to accept, as payment of the renewal premium, funds mailed in time to reach Rush in diie course prior to expiration of “the current term,” i. e., prior to 12:01 A.M. on April 2, 1956. Tippett, supra, 47 S.W.2d loc. cit. 227(2); Schlotzhauer v. Central Mut. Ins. Ass’n., 233 Mo.App. 1132, 1142, 128 S.W.2d 1061, 1065(3). See Illinois Life Ins. Co. v. McKay, 6 Ga.App. 285, 64 S.E. 1131, 1133(2, 3) ; Hartford Life & Annuity Ins. Co. v. Eastman, 54 Neb. 90, 74 N.W. 394, 395(4).

So, for the money order allegedly mailed in Kansas City “along around five o’clock” in the afternoon of Friday, March 30, 1956, to have constituted timely payment of the renewal premium, it would have been necessary to have adduced evidence from which it fairly and reasonably might have been inferred that, in due course of the mails, the envelope (containing the money order) would have been transmitted from the mail box at 35th and Prospect in Kansas City to Carthage in time to have been delivered to Rush on the following day, to wit, on Saturday, March 31, 1956, since there were no mail deliveries on Sunday, April 1, Rush was not shown to have received his mail in a post office lock box, and “the current term” of the policy expired at one minute after Sunday midnight, i. e., at 12:01 A.M. on April 2.

As we have observed, the only evidence pertaining to the time or frequency of collections from the mail box at 35th and Prospect in Kansas City was plaintiff’s testimony that: “ * * * the mail was always picked up before six A.M. or six P.M. in the evening. It was picked up before six is the reason I would mail the letters before six so they would be picked up.” There was no evidence indicating (a) when, in ordinary course, the envelope alleged to have been mailed at 35th and Prospect would have reached the Kansas City post office, (b) whether mail was transported from Kansas City to Carthage by train, highway post office, or star route contractor, (c) whatever the means of conveyance might have been, the frequency or hours of departure from Kansas City by the carrier, (d) the time required for carriage to Carthage, which we judicially know to be some 145 miles distant from Kansas City [Klotsch v. P. F. Collier & Son Corp., 349 Mo. 40, 159 S.W.2d 589, 592(1); State ex rel. Alton R. Co. v. Shain, 346 Mo. 681, 143 S.W.2d 233, 238(8)], (e) the hours of arrival in Carthage, or (f) when, in ordinary course, the envelope would have been delivered there. Contrast In re Farmers & Merchants Bank of Center, Mo., Mo.App., 83 S.W.2d 198, 199. See Wiggins v. Burkham, 77 U.S. (10 Wall.) 129, 19 L.Ed. 884, 886.

In some circumstances, it may be permissible for the finders of the facts to draw an inference, even though there be no direct evidence on the subject, as to whether mail matter properly addressed with postage prepaid would have been delivered within a given period of time, particularly where the sender and the addressee reside in the same city. However, the" general rule is that the time of receipt of mail in another city ordinarily cannot be presumed in the absence of any proof as to the usual course, time or frequency of the mails. 31A C.J.S., Evidence, § 136d, loc. cit. 298; 20 Am.Jur., Evidence, § 202, p. 202. And, in the noted circumstances of the case at bar, we are of the considered opinion that, with no evidence having been adduced as to any of the matters herein-before listed, the triers of the facts reasonably could not have inferred and found, and certainly we cannot know judicially, that the envelope (containing the money order) would, in due course of the mails, have been transmitted from the mail box at 35th and Prospect in Kansas City to Carthage in time to have been delivered to Rush on the following day, to wit, on Saturday, March 31, 1956.

In this respect, we think that plaintiff failed to make a submissible case. But, regardless of whether the evidence would have permitted a finding that the money order had been mailed in time to have reached Rush in due course prior to expiration of “the current term,” i. e., prior to 12:01 A.M. on April 2, 1956, it is clear that the judgment for plaintiff could not stand anyway because his verdict-directing instruction 1 was prejudicially deficient and erroneous, in that it required no such finding. An instruction authorizing the jury to return a verdict must require the finding of all essential fact issues necessary to establish the legal proposition on which the right to the verdict is based.

Furthermore, instruction 1 was erroneous in abstractly instructing the jury “that it is presumed that a letter properly addressed with postage prepaid, deposited in the United States mail reaches its addressee, and when there is evidence that such a letter was mailed but never received, the question of whether or not a letter was mailed and whether or not the said letter was received becomes one for you jurors to decide.” In a civil case, it is improper to instruct as to any presumption where there is evidence on the subject. Nuckols v. Andrews Investment Co., Mo.App., 364 S.W.2d 128, 141(19), and cases there cited; Neve v. Reliance Insurance Co. of Philadelphia, Mo.App., 357 S.W.2d 247, 250-251, and cases there cited; Gibson v. Metropolitan Life Ins. Co., Mo.App., 147 S.W.2d 193, 198(7). Moreover, the so-called presumption of due receipt of mail matter is no more than a rebuttable presumption of fact [Gilbert v. Malan, 231 Mo.App. 469, 483, 100 S.W.2d 606, 615], if any “real presumption is meant to be predicated.” 9 Wigmore on Evidence, § 2519, p. 430. It is both more appropriate and more accurate to say that evidence that mail matter has been properly addressed and mailed with postage prepaid permits, but does not require, the jury to draw an inference of fact that such mail matter was received by the addressee in due course. Williams v. Northeast Mut. Ins. Ass’n., Mo.App., 72 S.W.2d 166, 167; Morgan, Basic Problems of Evidence (1962), p. 31; 31A C.J.S., Evidence, § 136a, loe. cit. 291. If, upon retrial, plaintiff desires to instruct (under our present system,) concerning the matter under discussion, it is suggested that the basic facts pertaining to the mailing should be hypothesized and that the jury then should be told that such facts (if found to be true) would permit a finding that the envelope (containing the money order) had been delivered to addressee Rush in due course of the mails. See the suggestions in Harke v. Haase, 335 Mo. 1104, 1110-1111, 75 S.W.2d 1001, 1004, concerning instructions in res ipsa loquitur cases.

In the interest of minimizing the possibility of error upon retrial, we add these brief comments concerning defendant’s contention that there was a complete failure of proof as to damages. The proper measure of damages in an action for injury to personalty is the difference between the reasonable market value of the personalty immediately before the accident and immediately thereafter.1 The only testimony concerning damages came from plaintiff himself, and this was the only “question” specifically directed to the measure of damages; “The question was the difference in value of your automobile immediately before and immediately after the collision of April 5, 1956.” Plaintiff answered: “Well, I’d say a thousand or fifteen hundred dollars.” We are cognizant of the rule that the owner of personalty usually is permitted to testify as to its reasonable market value, although he may not have sufficient knowledge to qualify as an expert. Even so, it obviously is better practice to develop in evidence such testimonial qualifications as the owner may have [e. g., Grath v. Wilson Motor Car Co., Mo.App., 253 S.W. 776, 777; Taylor v. St. Louis & H. R. Co., Mo.App., 256 S.W. 499, 500] ; the evidence should be as to reasonable market value immediately before and immediately after the injury; and judicial liberality in permitting an owner of personalty to testify as to its reasonable market value should not be treated as an unrestricted license to engage in sheer speculation and unbridled guesswork. Instant plaintiff’s answer smacks of that. Whether it should be treated as of no probative value is a question which we need not resolve. Suffice it to say that upon retrial plaintiff’s evidence as to damages should be developed with the foregoing suggestions in mind.

It being apparent that all pertinent factual information was not presented upon trial, substantial justice dictates that plaintiff should not be foreclosed from an opportunity to prove his cause of action upon another trial. Kickham v. Carter, Mo., 314 S.W.2d 902, 907; Barnhart v. Ripka, Mo.App., 297 S.W.2d 787, 792(11); Hertel Electric Co. v. Gabriel, Mo.App., 292 S.W.2d 95, 102(15). Accordingly, the judgment for plaintiff is set aside, and the cause is remanded for retrial.

RUARK, P. J., and HOGAN, J., concur.

(On Motion for Rehearing or to Transfer)

PER CURIAM.

Plaintiff’s motion for rehearing or to transfer was received and filed by our clerk on June 13, 1964, the sixteenth day after our opinion in this case had been filed and handed down on May 28, 1964. Among the “RULES RELATING TO ALL APPELLATE COURTS” in Part II of the Rules of Civil Procedure promulgated by our Supreme Court is Rule 83.16, V.A.M.R., pertaining to “Motions for Rehearing,” which plainly imposes the mandatory time limitation that a motion for rehearing “must be filed within fifteen days after the opinion of the court shall be filed” (Emphasis ours) Both circuit and appellate courts are vested with broad discretionary power to extend time, in the interest of substantial justice, for the doing of many acts. But there are some time limitations which must be respected and observed and which may not be altered or waived by the courts. E. g., the time limitations for the filing of a motion for new trial [V.A.M.R. Rules 78.02 and 44.01(b); Fagan v. Hamilton Bank, Mo., 327 S.W.2d 201, 202(1, 2); Hoppe v. St. Louis Public Service Co., 361 Mo. 402, 404, 235 S.W.2d 347, 349(5), 23 A.L.R.2d 846; Robb v. Casteel, Mo.App., 340 S.W.2d 180, 183(1, 2)] and for the filing of a notice of appeal. V.A.M.R. Rules 82.04 and 82.07; Nattering v. Franz, 360 Mo. 854, 856, 231 S.W.2d 148, 149; Heard v. Frye, Mo.App., 319 S.W.2d 685, 686(2) ; Hance v. Johnson, Stephens & Shinkle Shoe Co., Mo.App., 306 S.W.2d 80, 82(2); Bank of Thayer v. Kuebler, 240 Mo.App. 776, 781, 219 S.W.2d 297, 299. The fifteen-day time limitation on the filing of a motion for rehearing is cast in mandatory language, and neither counsel nor the court is at liberty to ignore or wink at that limitation. The order of this court should be and is that plaintiff’s purported motion for rehearing or to transfer be stricken. Cf. Hoppe v. St. Louis Public Service Co., supra, 361 Mo. loc. cit. 404, 235 S.W.2d loc. cit. 349(5). However, in view of the “tear” and “temper” of that motion (to borrow the words of counsel), we have, ex gratia, examined it carefully and add the following comments.

In that motion, plaintiff (a) points out that his verdict-directing instruction 1 required a general finding that the “policy was in full force and effect at the time of the said collision and loss,” i. e., on April 5, 1956, by which date the renewal premium should have reached Carthage “whether [transported] by train, highway post office, star route carrier, or saddled gopher,” (b) suggests that, since April 1 was a Sunday and at 12:01 A.M. on April 2 “the company had no facility to accept premiums tendered in any fashion,” receipt of the renewal premium at a later time would have constituted timely payment (although plaintiff avoids any definite statement on this subject, the import of his motion and supporting suggestions seems to be that receipt at any time prior to the loss on April 5 would have been timely), and (c) asserts that defendant did not preserve the point that instruction 1 was erroneous for failure to require a finding that the money order had been mailed in time to have reached Rush prior to expiration of “the current term” or, in other words, while the policy was still in force and effect.

Of (a). As stated in the original opinion, plaintiff’s trial theory was that there had been timely payment of the renewal premium on March 30, 1956, by the act of depositing the money order in the United States mails in Kansas City, and nothing during trial either directed attention to the time when in due course the money order would have reached Rush or suggested that such time of receipt was of any importance or significance. Against the backdrop of this trial theory, the evidence adduced thereon, and the specific finding required by instruction 1 “that on March 30, 1956 and before the expiration date of April 2, 1956 * * * plaintiff properly mailed the premium * * * of $40.84” in a postage prepaid envelope addressed to Rush and deposited in the United States mails in Kansas City, we are of the opinion that it could not be fairly and reasonably believed or assumed on this judicial review either (1) that a finding that the money order had been mailed in time to have reached Rush in due course prior to expiration of “the current term” (hereinafter referred to as a time of receipt finding) was an essential prerequisite to the quoted general finding, or (2) that a time of receipt finding was implicit in or encompassed by the quoted general finding. And this is particularly true in view of the further fact that, as we also have observed, there was no evidence which properly would have justified or permitted a time of receipt finding. Accordingly, that issue was neither submissible under the evidence nor submitted by instruction 1.

Of (&). In his petition, plaintiff alleged that, under the policy, the renewal premium of $40.84 “became due and owing not later than 12:01 A.M. on April 2, 1956” and that he had paid that amount to Rush “on or about the 30th day of March, 1956.” Plaintiff’s suggestion that, since April 1 was a Sunday, receipt of the renewal premium at a later time would have constituted timely payment comes to us for the first time in his unseasonable motion for rehearing or to transfer. This, no doubt, because under plaintiff’s trial theory (i. e., that there had been timely payment of the renewal premium on March 30, 1956, by the act of depositing the money order in the United States mails in Kansas City) the time when in due course the renewal premium would have reached Rush would have been wholly meaningless and irrelevant. Nothing is better settled than that an appellate court will review a case only upon the theory upon which it was tried [Olsten v. Susman, Mo., 362 S.W.2d 612, 614(3); Voelker v. St. Louis Mercantile Library Ass’n., Mo., 359 S.W.2d 689, 693(2); Welch v. McNeely, Mo., 269 S.W.2d 871, 875(2); Griffin v. Anderson, Mo.App., 369 S.W.2d 889, 892 (7) ] and that a party will be held on appeal to his theory upon trial. King v. Guy, Mo.App., 297 S.W.2d 617, 625(16); Hill v. Seaboard Fire & Marine Ins. Co., Mo.App., 374 S.W.2d 606, 610(6); Greathouse v. Wolff, Mo.App., 360 S.W.2d 297, 301(2); Wardin v. Quinn, Mo.App., 324 S.W.2d 151, 154(3). We do not rule the legal validity of plaintiff’s tardy suggestion, irrelevant to his trial theory and not presented or briefed by either party prior to submission here [cf. Thompson v. B & G Wrecking & Supply Co., Mo., 346 S.W.2d 65, 68], that, since April 1 was a Sunday, later receipt of the renewal premium would have constituted timely payment; and, of course, our disposition of this appeal is without prejudice to definitive embodiment of this suggestion, here unpleaded and amorphous, in an amended petition (if plaintiff be so advised) and to subsequent presentation of plaintiff’s then theory to, and determination thereof by, the circuit court.

Of (c). Plaintiff’s counsel are mistaken in their assertion that defendant did not preserve the point that instruction 1 was erroneous for failure to require a finding that the money order had been mailed in time to have reached Rush prior to expiration of “the current term” or, in other words, while the policy was still in force and effect. Among the numerous specific complaints leveled at instruction 1 in defendant’s motion for new trial in the circuit court was the complaint that “instruction [1] is further erroneous in not requiring the jury to find that the alleged remittance [money order] reached the defendant while the insurance policy was still in force and effect, but directs the jury to find the verdict for the plaintiff if the renewal premium was mailed on March 30, 1956 and before the expiration date of April 2, 1956 thereby predicating liability on the mere mailing of said remittance.” Point III of the “points relied on” in defendant’s appellate brief assigned reversible error in the giving of plaintiff’s instruction 1 for the reason, among others, “that the instruction did not require the jury to find that the remittance reached the defendant while the insurance policy was still in force and effect.” And the same complaint was carried forward into the “argument” section of the brief, first in the caption under which Point III was argued and again in this language in the body of the argument, to wit, “the instruction is further erroneous in not requiring the jury to find that the alleged remittance reached the defendant while the insurance policy was still in force and effect, ■etc.” True, defendant’s brief left us with the substantial burden of doing most of the legal research on this point, but that did not provide a rare, singular or unique experience for us.

If permitted to review plaintiff’s motion •for rehearing or to transfer on its merits, we would be constrained to overrule it; but, since it was not filed within the permitted time, our order is that the motion be .stricken.

      . Williams v. Northeast Mut. Ins. Ass’n., Mo.App., 72 S.W.2d 166, 167(2); Roland v. Gassman, Mo.App., 44 S.W.2d 658, 660 (4); J. L. Price Brokerage Co. v. Chicago, R. I. & P. Ry. Co., 207 Mo.App. 8, 230 S.W. 374, 377(3); Scheidel Western X-Ray Co. v. Bacon, Mo.App., 201 S.W. 916, 918(5). See also Armour & Co. v. American Automobile Ins. Co., 336 Mo. 551, 80 S.W.2d 685, 689(1); State v. Euge, Mo.App., 349 SW.2d 502, 506 (9).

      . In re Farmers & Merchants Bank of Center, Mo., Mo.App., 83 S.W.2d 198, 200(3); Williams v. Northeast Mut. Ins. Ass’n., supra, 72 S.W.2d loc. cit. 167(3) ; McCaskey Register Co. v. Erffmeyer, Mo.App., 46 S.W.2d 256, 258(5, 6); Hawes v. American Central Ins. Co., 222 Mo.App. 1057, 7 S.W.2d 479, 484(9); McCormick on Evidence (1954), § 311, p. 650. See also Clark v. Cole County, 272 Mo. 135, 197 S.W. 905, 906; J. L. Price Brokerage Co., supra, 230 S.W. loc. cit. 377 (4); Senaca Co. v. Ellison, Mo.App., 184 SW. 1177, 1178(4).

      . E.g., in McCaskey Register Co. v. Erffmeyer, Mo.App., 46 S.W.2d 256, 258(7), it was said that “[f]rom common knowledge and experience, tlie jury reasonably could find that a letter mailed at IVeston, Mo., on July 16tli, would reach Alliance, Ohio, by July 20th, in regular course.” And in German-American Bank v. Cramery, 184 Mo.App. 481, 171 S.W. 31, 32, the appellate court thought that it could “judicially notice” that a written notice mailed by plaintiff’s counsel at Macon on February 5 “should have been in the bands of defendant’s attorney” at Bowling Green, some 75 miles distant, “on the next day, the 6th, or * * * on the 7th, which would have been in time for the legal notice, with three days to spare.” But in McCaskey Register Co. v. Redd, 145 Mo.App. 185, 187, 130 S.W. 109, 110, the opinion includes the statement that “we assume that a letter mailed at Dover, Mo., on the evening of the ICth of March, could not be received by plaintiff at Alliance, Ohio, during the business part of the day of the 17th,” defendants not contending to the contrary.

      .In Rolla State Bank v. Pezoldt, 95 Mo.App. 404, 411, 69 SW. 51, 53(5), it was held that the trial judge, sitting as a jury, “had the right to take judicial notice of the customary operations of the federal mail service, so far as to infer that defendant received the notice August 24th, the next day following that on which the notary mailed it to him in the same city,” there being no denial of receipt.

      . Hoth v. Incorporated Village of Garden City, 26 Misc.2d 1064, 208 N.Y.S.2d 345, 347(2, 3); Starr v. Holck, 318 Mick. 452, 28 N.W.2d 289, 291(2), 172 A.L.R. 413; Chapman v. State, 129 Okl. 83, 263 P. 453, 454(2). See also Illinois Life Ins. Co. v. McKay, 6 Ga.App. 285, 64 S.E. 1131, 1133; McCaskey Register Co., supra, 145 Mo.App. loc. cit. 187, 130 S. W. loc. cit. 110.

      . Fitzpatrick v. Ford, Mo., 372 S.W.2d 844, 849(2); Myers v. Buchanan, Mo., 333 S.W.2d 18, 21; Gaffner v. Alexander, Mo., 331 S.W.2d 622, 627(3); Petty v. Huber, Mo.App., 360 S.W.2d 393, 394(1). See also State ex rel. Hartford Fire Ins. Co. v. Trimble, 298 Mo. 418, 424, 250 S.W. 393, 395; Koury v. Home Ins. Co. of New York, Mo.App., 57 S.W.2d 750, 751(2).

      . Hall v. Clark, Mo., 298 S.W.2d 344, 350 (13); Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 533, 66 S.W.2d 903, 910 (23); Wilson v. Motors Ins. Corp., Mo.App., 349 S.W.2d 250, 255(6); Wrinkle v. Imperial Casualty & Indemnity Co., Mo.App., 343 S.W.2d 90, 92; Thomson v. Bast, Mo.App., 309 S.W.2d 667, 670(5).

      . State ex rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68, 72(10); Hellums v. Randol, 225 Mo.App. 1092, 40 S.W.2d 500, 502(6); Finn v. Indemnity Co. of America, Mo.App., 297 S.W. 175, 176(1); Grath v. Wilson Motor Car Co., Mo.App., 253 S.W. 776, 777(2); Klein v. St. Louis Motor Car Co., Mo.App., 237 S.W. 848. See also State v. Brewer, Mo., 286 S.W.2d 782, 783(1); Keeton v. Sloan’s Moving & Storage Co., Mo.App., 282 S.W.2d 194, 199(11); Baird v. Ellsworth Realty Co., Mo.App., 265 S.W.2d 770, 774(11).


source: Caselaw Access Project

author: RUARK, Presiding Judge. HOGAN, Judge STONE, Judge

license: Public Domain

text:
    Nelda V. IRELAN, Plaintiff-Respondent, v. STANDARD MUTUAL ASSOCIATION OF CASSVILLE, Missouri, a corporation, Defendant-Appellant.
    No. 8264.
    Springfield Court of Appeals. Missouri.
    May 28, 1964.

      Joe R. Ellis, Royle Ellis, Cassville, for defendant-appellant.
    Myers & Birk, Joplin, for plaintiff-respondent.
   RUARK, Presiding Judge.

Plaintiff sued on a life insurance certificate which provided a death benefit of five hundred dollars. Trial was by the court. Plaintiff recovered judgment, and defendant has appealed.

The contract provided that “within Three Months from the date of the receipt of approved Proof of Death of the Certificate Holder herein named, it will pay IN CASH to the Beneficiary herein named, the benefits shown herein except as provided below.

“GRADUATED BENEFITS
“It is understood and agreed that the Benefits provided in this Certificate shall graduate in amount as follows: 10% if death occurs within the first month, 25% if death occurs within the second month, and 50% if death occurs within the third month (after the date of the Certificate).
“In the event of the death of the Member named herein, within two years from the date hereof from TUBERCULOSIS, CANCER, HEART DISEASE, or APOPLEXY, or from any chronic disease with which said Member is afflicted AT THE TIME THIS CERTIFICATE IS ISSUED, either as a direct or contributory cause, then the amount due and payable hereunder shall be limited to One-Half the amount otherwise due and payable, provided however, that if any material representations in the application are untrue then the entire Certificate shall become null and void, except as to the return of assessments paid thereon. ^ ^ ^

The certificate was issued on April 8, 1960. The insured died on March 19, 1962, and thus within two years. The death certificate listed “IMMEDIATE CAUSE * * * Coronary occlusion INTERVAL BETWEEN ONSET AND DEATH 8 hours.” Plaintiff’s proof of death listed as “CAUSE OF DEATH Coronary occlusion.” There is no dispute as to cause of death. The widow beneficiary testified that the insured had no heart trouble or heart disease prior to the day of his death; and the defendant-appellant did not and does not contend that insured suffered from heart disease at the time the policy was issued.

Appellant contended below and here contends that under the limiting clause above set forth it owes only one-half the death benefit, or two hundred fifty dollars, which it tendered. Respondent contends, as the trial court found, that the full benefit of five hundred dollars was payable.

The first question we have is raised by the respondent: Is death caused by a coronary occlusion, death by “heart disease”? At trial defendant’s witness Dr. Newman testified unqualifiedly that a coronary occlusion is a heart disease. Her statement was that heart disease is “any abnormal pathology affecting the heart.” On cross-examination she testified in elaboration that if an “artery into the heart was cut in such a manner that the blood supply to the heart was cut off” death would result from “heart disease.” Further in her examination she qualified her definition to some extent by saying that there is “some difference between disease and what can happen as an injury.” She concluded by stating that a person with a perfectly healthy heart cannot die of a coronary occlusion; that a coronary occlusion is a stopping of a coronary artery. It was stipulated that another physician, if present, would testify that coronary occlusion is a heart disease.

The general rule is that in construing an insurance policy, if there is a conflict between a technical medical definition and a meaning which would normally be accepted by the average layman, then unless it plainly appears that the technical meaning is intended, the courts will accept and apply the layman’s viewpoint. 27 C.J.S. Disease, pp. 302, 303; Robinson v. Commonwealth Casualty Co., 224 Mo.App. 969, 27 S.W.2d 49, 51; Farmer v. Railway Mail Ass’n, 227 Mo.App. 1082, 57 S.W.2d 744, 745. For the test of understanding is that “revealed in the common speech of men.” State ex rel. Prudential Ins. Co. of America v. Shain, 344 Mo. 623, 127 S.W.2d 675, 678; Feldmann v. Connecticut Mut. Life Ins. Co. of Hartford, Conn., 8th Cir., 142 F.2d 628, 631.

Turning then to the common understanding: We find that the definitions of “dis.ease” are quite broad. Brinkoetter v. Pyramid Life Ins. Co., Mo.App., 377 S.W.2d 560. Referring to the dictionaries we find many specific definitions but one general throughout, to wit: disease is a condition of the body or some part or organ in which the functions are disturbed or deranged. This is usually followed by a more definitive declaration that the derangement is understood to be of settled duration and one which is due to causes as distinguished from a wound.

In Frank v. Atlanta Life Ins. Co., Mo.App., 211 S.W.2d 940, 942, it is said that “heart failure” or “cardiac failure” is commonly accepted as describing death by heart trouble or disease. An occlusion is a shutting off, or the closing- or obstruction, of a passage. (See dictionary definition.) Anatomically the coronary arteries are a part of the heart, and any pathology within the coronary arteries is an injury to the heart .and, therefore, “heart trouble.” Frank v. United Ben. Life Ins. Co., Mo.App., 231 S.W.2d 234, 239. It is our conclusion that, by .the understanding of average man, a death by coronary occlusion is death by “heart disease”; and we rule against the respondent as to this contention.

The principal argument is over the •construction of the limiting and qualifying ■clauses first above set forth. Appellant says that the meaning is plain that, if the insured ■died from heart disease within two years ■after issuance of certificate, then the benefit was to be one-half. Respondent contends that it plainly means and should be read so that “heart disease” (and the other named causes) is to be taken along with the words “any chronic disease” and governed by the following words, “with which said Member is afflicted AT THE TIME THIS CERTIFICATE IS ISSUED.” In other words, the affliction at the time the certificate is issued relates back to all the diseases set forth in capital letters, and the sense of the meaning is as though the word “other” was inserted before the word “chronic.” It is the view of the writer (not however concurred in unanimously by the other members of the court) that, by giving effect to the word “or” in front of the word “APOPLEXY” and to the comma after such word, the policy is to be construed as the insurer-appellant contends. But that does not solve our problem. An insurance policy is not necessarily to be construed in the manner of a (hopefully) painstaking lawyer, sitting at his desk and attempting to apply all the proper rules of punctuation and grammatical niceties. We must consider the meaning which would reasonably be attached by the ordinary person of average intelligence or common understanding. Crenshaw v. United States Fidelity & Guaranty Co., Mo.App., 193 S.W.2d 343, 344; Liberty Storage Co. v. Kansas City Terminal Warehouse Co., Mo.App., 340 S.W.2d 189 [4], It has been said that punctuation is “a most fallible guide” and that “[t]he sense of a contract is gathered from its words and their relation to each other, and, after that has been done, punctuation may be used to more readily point out the division in the sentences and parts of sentences. But the words control the punctuation marks, and not the punctuation marks the words.” See discussion in Commonwealth Casualty Co. v. Aichner, 8th Cir., 18 F.2d 879, 881.

We must, of course, read the policy as a whole and consider all of its portions together. Appleman, Insurance Law and Practice, Vol. 13, §§ 7383, 7425, pp. 10, 125; State ex rel. Mutual Ben. Health & Accident Ass’n v. Shain, 350 Mo. 422, 166 S.W.2d 484, 487. It should be interpreted according to its plain terms, and if the language is plain there is not room for construction. We cannot, under the guise of construction, alter, rewrite, or modify a policy so as to pervert its meaning by adopting a strained construction (Pierce v. Business Men’s Assur. Co. of America, Mo., 333 S.W.2d 97, 100; Ward v. Gregory, Mo.App., 305 S.W.2d 499, 503; Winston v. Hartford Fire Ins. Co., Mo.App., 317 S.W.2d 23) or invent an ambiguity. Central Sur. & Ins. Corp. v. New Amsterdam Cas. Co, 359 Mo. 430, 222 S.W.2d 76, 78; Glenn v. Missouri Ins. Co., 238 Mo.App. 236, 179 S.W.2d 644, 646. But if the policy is in fact reasonably susceptible of being understood in two or more senses or is “dulled by ambiguity,” then it will be construed most strongly against the insurer. In other words, we will take that meaning which favors the insured. Simpson v. American Auto. Ins. Co., Mo. App., 327 S.W.2d 519[2] ; Chamberlain v. Mutual Ben. Health & Acc. Ass’n, Mo.App., 260 S.W.2d 790[6]; Walker, to Use of Foristel, v. American Automobile Ins. Co, 229 Mo.App. 1202, 70 S.W.2d 82, 89.

This rule is especially applicable where insurance is first “granted” and is then followed by provisions limiting or avoiding liability. Such limiting provisions are strictly construed against the insurer. It is said that if the insurer intends to place limitations upon the liability it is required to set these limitations forth clearly, definitely, and explicitly (Appleman, Vol. 13, § 7403, p. 97; Schmohl v. Travelers’ Ins. Co., Mo.App, 189 S.W. 597, 600, aff. Mo., 197 S.W. 60; see Chamberlain v. Mutual Ben. Health & Acc. Ass’n, supra), for ambiguous phrases are not to be permitted to serve as traps for policyholders. Davis v. Mutual Life Ins. Co., 234 Mo.App. 748, 119 S.W.2d 488; see Boillot v. Income Guaranty Co., 231 Mo.App. 531, 102 S.W.2d 132, 145. And if the meaning of the limiting language is the least doubtful, it will be taken against the insurer (Souders v. Commonwealth Casualty Co., Mo.App., 246 S.W. 613), even though the insurer actually intended otherwise. State ex rel. Security Mut. Life Ins. Co. v. Allen, 305 Mo. 607, 267 S.W. 379.

Referring again to the certificate r It first stated that the benefit was five hundred dollars and provided that such would be paid within three months after proof of death. The next clause provided that the-benefit would be paid in graduated amounts, ranging from- ten per cent if death occurs, within one month to fifty per cent if death occurs within the third month. Then followed the limiting (reducing) clause in dispute. The ordinary person, having read the graduated benefits in the second clause and having the eyes attracted by the bold, faced type TUBERCULOSIS, CANCER, HEART DISEASE or APOPLEXY * * *- AT THE TIME THIS CERTIFICATE IS-ISSUED in the next clause, might be less, inclined to examine the punctuation of that limiting clause and assume that, the amount having already been graduated to one-half the benefit if death occurred within three months, the limitation on heart disease was. applicable to that suffered at the time the certificate was issued. We note that in Commonwealth Casualty Co. v. Aichner, supra (followed in Ransdell v. North American Accident Ins. Co, 275 Ky. 507, 122 S.W.2d 114), attention was paid to the fact that certain words were printed in large type as an aid in sustaining the insurer’s contention that the policy was not ambiguous. If this aid to construction is to be applied in favor of the insurer, it should work in both directions. We conclude that the policy when taken as a whole was reasonably susceptible of different interpretations. We are therefore required to accept that most favorable to the plaintiff and hold that the limitation is to be construed as applicable to heart disease suffered at the time the certificate was issued.

The judgment of the trial court was for the (full) amount of five hundred dollars, “with interest on $250.00 from June 19, 1962, with ten per cent penalty on $250.00 or in amount of $25.00 and attorney fee in amount of $150.00.”

The facts are that on June 9, 1962, the insurer tendered the widow beneficiary a check for two hundred fifty dollars. The words on the check were: “THIS CHECK IS IN PAYMENT OF ITEMS AS PER STATEMENT FOLLOWING. ENDORSEMENT OF PAYEE WILL CONSTITUTE A RECEIPT IN FULL WHEN CHECK IS PAID Claim #114, Cert #55622 Daris L. Irelan Yi benefit $250.00.” It could well be argued that this was an unconditional tender; but the parties construed it as calling for an unconditional release. The defendant pleaded that it had tendered (and plaintiff had refused) the sum of two hundred fifty dollars as “the amount due upon said Certificate.” The offer was renewed, but “as full payment of the amount due in accordance with the terms and conditions of the Certificate of Membership, and does now tender said sum into this court.” We think we must accept the construction the parties put on the offer and treat it as a conditional tender calling for release of plaintiff’s claim for the full amount.

We have no doubt that defendant was not guilty of vexatious refusal (§ 375.420 RSMo, V.A.M.S.) in seeking determination of its obligation in respect to the full five hundred dollars. The insurer has the right without penalty, if in good faith, to litigate a question of fact or an open question of law concerning which there is reasonable or probable cause for belief; and, if the dispute is bona fide, liability for the penalty cannot be deduced from the mere fact plaintiff got a verdict. This applies to questions involving construction of the policy. Schaeffer v. Northern Assur. Co., Mo.App., 179 S.W.2d 923; Fletcher v. Metropolitan Life Ins. Co., Mo.App., 137 S.W.2d 621. Considering the difficulty which we have had in determining the construction to be applied, we think the insurer was entirely justified in standing upon its interpretation and litigating the question. It should not be charged with vexatious refusal on such account.

But we have more difficulty with the failure to pay, without strings, the two hundred fifty dollars which it admittedly owed. It may be true that the beneficiary could have cashed the check and defeated a claim of accord and satisfaction or release on the ground of no consideration; but it has been held that this fact is not available to the insurer on a claim for the statutory “penalty.” Burneson v. Massachusetts Bonding & Ins. Co., Mo.App., 205 S.W.2d 239 [6]. We think we must treat the offer as no tender.

Where there is a bona fide dispute, based on reasonable belief, the insurer is not required to pay, or offer to pay, a portion of an excessive, unliquidated claim. 46 C.J.S. Insurance § 1408, p. 725; Glover v. Liverpool & London & Globe Ins. Co., 193 Mo.App. 489, 186 S.W. 583; Chernus v. Kennedy-Coats Const. Co., 227 Mo.App. 582, 55 S.W.2d 744, cert. quashed State ex rel. Union Indemnity Co. v. Shain, 334 Mo. 153, 66 S.W.2d 102. It is stated generally that there can be no vexatious refusal where the plaintiff seeks a recovery for more than he is entitled (Loulos v. United Sec. Ins. Co., Mo.App., 350 S.W.2d 87; Cross v. Peerless Ins. Co., Mo.App., 351 S.W.2d 826, and cases at 829), at least when the admitted portion is insignificant in comparison with the total amount which is wrongfully claimed. (See Boenzle v. United States Fidelity & Guaranty Co., Mo.App., 258 S.W.2d 938; Brown v. Mutual Life Ins. Co. of New York, Mo.App., 140 S.W.2d 91.) But if the dispute is as to both the amount due and the liability under the policy, the fact that the plaintiff recovered less than that sued for does not exclude vexatious recovery. Wood v. General Ins. Co. of America, 229 Mo.App. 296, 77 S.W.2d 167 [9], It is also said that where it is undisputed that a certain amount is due, but the insurer’s liability for a sum in excess thereof is disputed, payment of the conceded amount is obligatory. Appleman, Vol. 3, § 1691, p. 281. And, if there are separable or distinct items and there is no reasonable basis for the refusal of payment of one, the insurer will be charged with the vexatious penalty for failure to pay that portion of the benefits even though it may have good cause for disputing the other. Burneson v. Massachusetts Bonding & Ins. Co., supra; Block v. United States Fidelity & Guaranty Co. of Baltimore, Md., 316 Mo. 278, 290 S.W. 429.

Each case under the vexatious penalty statute must be decided on its own facts. Jones v. Reeves, Mo.App., 41 S.W.2d 605. The case we have here is somewhere between the instances above mentioned. There is only one claim and one item, but there are two different amounts involved, depending upon which interpretation is correct. These amounts are “liquidated” in the sense that the figure for each is fixed. The insurer has never denied the death or the cause of death but has consistently admitted that two hundred fifty dollars (and no more) was due on account of said death. Litigation might determine liability for the additional two hundred fifty dollars, but it would not reduce the amount of the two hundred fifty dollars concerning which there was no dispute. The insurer was obligated for this sum regardless of the outcome of any dispute or the litigation on the remaining two hundred fifty dollars, and there was no “bona fide dispute” as to the first amount. In this situation we believe that there was no reasonable cause to withhold payment of such admitted sum, or to make its payment conditioned upon the release of the disputed amount. Payment of the admitted sum would not have inhibited a good faith defense on the real question involved.

The judgment is affirmed.

HOGAN, J., concurs in separate opinion.

STONE, J., dissents in separate opinion.

HOGAN, Judge

(concurring).

I concur, although I am bound to say that were the case to be resolved wholly and solely upon my personal judgment, I would accept the finding of ambiguity with some reserve. With deference to the opinion of others, I would construe the “Graduated Benefits” provision flatly against the insurer, upon the record presented. I believe that the phrase “or from any chronic disease” qualifies the meaning of the words “TUBERCULOSIS, CANCER, HEART DISEASE, OR APOPLEXY,” so that the fair intendment of the “Graduated Benefits” provision is to reduce payment only to those who were afflicted with some chronic form of the diseases mentioned at the time the risk attached. The Supreme Court of Illinois came to a similar conclusion in Swann v. National Union Ben. Ass’n, 357 Ill. 78, 191 N.E. 224, 225 [1-3], in a similar situation, and I would adopt the reasoning applied there.

STONE, Judge

(dissenting).

I agree with the author of the principal opinion that the language of the insurance certificate “is to be construed” as having the meaning upon which defendant-appellant stands, but I cannot agree that such language is reasonably or fairly susceptible of a different meaning.

The language, on the construction of which the case turns, is: “In the event of the death of the Member named herein, within two years from the date hereof from TUBERCULOSIS, CANCER, HEART DISEASE, or APOPLEXY, or from any chronic disease with which said Member is afflicted AT THE TIME THIS CERTIFICATE IS ISSUED,” the death benefit shall be one-half of that otherwise payable. The construction for which plaintiff-beneficiary contends (hereinafter referred to as plaintiff’s construction) is that the clause “with which said Member is afflicted AT THE TIME THIS CERTIFICATE IS ISSUED” relates back to, and thus modifies, not only “any chronic disease” but also “TUBERCULOSIS, CANCER, HEART DISEASE, or APOPLEXY,” and that (in the words of the principal opinion) “the sense of the meaning is as though the word ‘other’ was inserted before the word ‘chronic.’ ” Defendant-insurer asserts that the quoted language is plain and unambiguous and that its meaning (hereinafter referred to as defendant’s construction) is as i f the parallel modifiers of the opening language (i. e., of “[i]n the event of the death of the Member named herein, within two years from the date hereof”) had been numbered thusly: “(1) from TUBERCULOSIS, CANCER, HEART DISEASE, or APOPLEXY, or (2) from any chronic disease with which said Member is afflicted AT THE TIME THIS CERTIFICATE IS ISSUED.” (All emphasis herein is mine.)

The basic rules to be followed in construction of this certificate are well-settled. “The policy [certificate] is a contract. Plain and unambiguous language must be given its plain meaning. The contract should be construed as a whole; but, in so-far as open to different constructions, that most favorable to the insured must be adopted. State ex rel. Security Mutual Life Ins. Co. v. Allen, 305 Mo. 607, 614, et seq., 267 S.W. 379, 381, 382. However, as said in 14 R.C.L. § 103, p. 931 [see 29 Am.Jur., Insurance, § 260, p. 644], the rule ‘does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists.’ ” Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 370, 1 S.W.2d 99, 101-102(4, 5), 57 A.L.R. 615; Central Surety & Ins. Corp. v. New Amsterdam Cas. Co., 359 Mo. 430, 435, 222 S.W.2d 76, 78(1); Aetna Life Ins. Co. of Hartford, Conn. v. Durwood, Mo., 278 S.W.2d 782, 786(2, 3). And, in determining whether a policy contract is ambiguous, we should view it through the same eyeglasses that we use in reading other contracts. Central Surety & Ins. Corp., supra, 359 Mo. loc. cit. 438, 222 S.W.2d loc. cit. 80(4,5); Henderson v. Massachusetts Bonding & Ins. Co., 337 Mo. 1, 6, 84 S.W.2d 922, 924(1) ; Sulzbacher v. Travelers Ins. Co., 8 Cir., 137 F.2d 386, 391 (10).

The choice of words, syntax, and punctuation alike point to defendant’s construction and, by the same token, militate against plaintiff’s construction. To accept plaintiff’s construction, it becomes necessary to ignore the fact that the opening language is modified by two parallel phrases (i. e., “from TUBERCULOSIS, CANCER, HEART DISEASE, or APOPLEXY” or “from any chronic disease * * * ”) and, in so doing, disregard and accord no effect (a) to the “or” immediately preceding “APOPLEXY” and (b) to the “from” immediately preceding “any chronic disease.” Moreover, plaintiff’s construction, “the sense of which is as though the word ‘other’ was inserted before the word ‘chronic,’ ” literally makes-no “sense.” For, of the four diseases named in the first modifying phrase (i. e., “TUBERCULOSIS, CANCER, HEART DISEASE, or APOPLEXY”), “apoplexy” is not a chronic disease and “heart disease” may not be. Granting that “an insurance policy is not necessarily to be construed in the manner of a (hopefully) painstaking lawyer,” nevertheless I am unwilling to join in a holding that is designed, in effect, not only to discourage, dispirit and dismay that modicum of the legal profession who are “hopefully painstaking” in use of the English language but also to penalize, punish and mulct a client who seeks out counsel in that category.

Ambiguity is not to be predicated solely on a judicial belief that the same thought might have been “better or more accurately expressed” in other language [Terry v. New York Life Ins. Co., 8 Cir., 104 F.2d 498, 504(13)], or on the complexity of the sentence structure, for “complexity need not equate with ambiguity.” State Bank of Poplar Bluff v. Maryland Casualty Co., 8 Cir., 289 F.2d 544, 547. And a contract is not rendered ambiguous by disagreement of the parties as to its meaning [Mickelberry’s Food Products Co. v. Haeussermann, Mo., 247 S.W.2d 731, 738(6); Andrews v. St. Louis Joint Stock Land Bank, 8 Cir., 107 F.2d 462, 468(10), certiorari denied Cantley v. Andrews, 309 U.S. 667, 60 S.Ct. 592, 84 L.Ed. 1014, rehearing denied 309 U.S. 697, 60 S.Ct. 711, 84 L.Ed. 1036; National Pigments & Chemical Co. v. C. K. Williams & Co., 8 Cir., 94 F.2d 792, 795(1)], or by the fact that others, whether lawyers or laymen, may have construed the same language differently. Orr v. Mutual Life Ins. Co. of New York, D.C.Mo., 57 F.2d 901, 903(4), affirmed 8 Cir., 64 F.2d 561; Terry, supra, 104 F.2d loc. cit. 503-504. In the language of the late Judge Merrill E. Otis, a perspicacious scholar and courageous jurist; “If we say that language becomes ambiguous because some one contends it is ambiguous or some other concludes it is ambiguous, we save ourselves much labor, but we have applied a test that scarcely will stand examination. Unless we can point out in language we are considering wherein it has a double meaning, we are not justified in saying it is ambiguous, however many learned judges and unlearned laymen have voted ‘yes’ upon the question, ‘Is it ambiguous ?’ ” Orr, supra, 57 F.2d loc. cit. 903.

It would be well-nigh impossible to draft any contract of insurance in such language as would afford protection to all insureds against their own carelessness or incompetence in construction thereof and as would not be of uncertain meaning to some of them. But “ ‘[w]ords cannot be said to be ambiguous because they are unintelligible to a man who cannot read; nor is a written instrument ambiguous or uncertain merely because an ignorant or uninformed person may be unable to interpret it. It is ambiguous only when found to be of uncertain meaning by persons of competent skill and information.’ ” Commonwealth Casualty Co. v. Aichner, 8 Cir., 18 F.2d 879, 883; Ransdell v. North American Accident Ins. Co., 275 Ky. 507, 122 S.W.2d 114, 117; 1 Greenleaf on Evidence, § 298, p. 478. Believing that the average reader should have no serious difficulty in arriving at the meaning of the language under discussion, if it be perused with the ordinary care which the law requires [Commonwealth Casualty Co., supra, 18 F.2d loc. cit. 883], I am of the opinion that the certificate is not “reasonably or fairly susceptible of different constructions” and that therefore it is not ambiguous. State ex rel. National Life Ins. Co. v. Allen, 301 Mo. 631, 638, 256 S.W. 737, 739(3).

Entertaining proper respect for the views of others, I nevertheless am impelled to give voice to my own persuasion that the principal opinion strains mightily to find (to me nonexistent) ambiguity. I would accord to the language of the unidentified but painstaking draftsman of the certificate what I believe to be its plain and intended meaning, which would result in reversal of the judgment nisi.

      . See Shorter Oxford English Dictionary; Webster's New International Dictionary, 2d ed.; Webster’s Dictionary of Synonyms; 27 C.J.S. Disoaso, p. 302, et seq.; 12A Words and Phrases, “Disenso,” p. 339.

      . Rieger v. Mutual Life Ins. Co. of New York, 234 Mo.App. 93, 110 S.W.2d 878 [7] ; Thrower v. Life & Casualty Ins. Co. of Tennessee, Mo.App., 141 S.W.2d 192, 196; Kimbrough v. National Protective Ins. Ass’n, 225 Mo.App. 913, 35 S.W.2d 654 [8]; Koch v. Menaugh, 231 Mo.App. 1036, 84 S.W.2d 383 [2]; Bonzon v. Metropolitan Life Ins. Co., Mo.App., 143 S.W.2d 336 [4]; Bituminous Casualty Corporation v. Walsh & Wells, Mo.App., 170 S.W.2d 117 [3] ; Ransom v. Potomac Ins. Co. of District of Columbia, 226 Mo.App. 664, 45 S.W.2d 95, 98; Caine v. Physicians’ Indemnity Co. of America,. Mo.App., 45 S.W.2d 904, 908.

      .46 C.J.S. Insurance § 1406a, p. 719; Couch, Cyclopedia of Insurance Law, Vol. 7, § 1866, p. 6198; Dixon v. Business Men’s Assur. Co. of America, 365 Mo. 580, 285 S.W.2d 619 [10]; Jones v. Atlanta Life Ins. Co., Mo.App., 289 S.W.2d 438; Jones v. Farm Bureau Mut. Ins. Co., Mo.App., 284 S.W.2d 11, 16; Young v. Now York Life Ins. Co., Mo.App., 221 S.W.2d 843, aff. 360 Mo. 460, 228 S.W.2d 670.

      .Couch, Vol. 7, § 1867, p. 6211; Brady v. New Jersey Fidelity Ins. Co., 180 Mo.App. 214, 167 S.W. 1171; Stricker v. Metropolitan Life Ins. Co., Mo.App., 237 S.W. 894; see West’s Missouri Digest, Accord and Satisfaction,

      . “Apoplexy” is defined as: “A sudden diminution or loss of consciousness, sensation, and voluntary motion, caused by hemorrhage into the brain from rupture of an artery, or by sudden anemia of a part of the brain from obstruction of its artery, either by the formation of a clot or by the lodgment of an embolus;— commonly called stroke." Webster’s New International Dictionary (2nd Ed.), p. 127. “ ‘Apoplexy’ is a non-medical term which is usually used to describe what is popularly known as a ‘stroke.’ It implies a sudden attack of occlusion or hemorrhage involving an artery in the brain, with marked neurological deficits (predominantly paralysis).” Gray, Attorneys’ Textbook of Medicine (3rd Ed.), Vol. 2, § 91.01. See Maloy, Medical Dictionary for Lawyers (1942), p. 42; Dorland, The American Illustrated Medical Dictionary (21st Ed.), p. 130; Cecil, Textbook of Medicine (7th Ed.), p. 1575.

      . This is demonstrated in the principal opinion, where it is held that the insured, who (according to plaintiff-beneficiary) “had no heart trouble or heart disease prior to the day of his death” and who died of a “coronary occlusion” with only “8 hours” intervening “between onset and death,” died of “heart disease.”


author: SPERRY, Commissioner. PER CURIAM.

text:
    STATE of Missouri ex rel. PUBLIC SERVICE COMMISSION of Missouri, Plaintiff-Appellant, v. Glen Earl THOMPSON, d/b/a Thompson Moving & Storage, and Thompson Transfer, Defendant-Respondent.
    No. 23891.
    Kansas City Court of Appeals. Missouri.
    June 1, 1964.
    Glenn D. Evans, Gen. Counsel, Thos. J. Downey, Asst. Gen. Counsel, Jefferson City, for appellant.
    Robert C. Frith, Chillicothe, for respondent.
   SPERRY, Commissioner.

This suit was instituted by the State of Missouri (plaintiff) at the relation of the Public Service Commission, hereafter referred to as relator, against defendant, for the recovery of statutory penalties because of defendant’s alleged illegal transportation of merchandise in intra-state commerce. Defendant moved to dismiss for lack of venue, and filed answer. The motion to dismiss was sustained. The order of dismissal recited: “ * * * and grants defendant’s motion to dismiss for lack of venue”. Plaintiff appeals.

Relator issued its order of investigation into the activities of defendant and cited him to appear and answer charges that he violated section 390.051, RSMo 1959, V.A. M.S., in engaging for hire, in the transportation business, intra-state, without having received a certificate of convenience and necessity issued by relator, and to show cause why action should not be instituted to recover penalties therefor, as provided in chapter 390, RSMo 1959, V.A.M.S. Defendant was present at the hearing but offered no evidence and refused to testify.

From the evidence heard by the Commission in its “investigation”, it found that defendant was guilty of two specific violations, as charged, and ordered that its general counsel institute proceedings “ * * in a Court of competent jurisdiction, seeking recovery from respondent of penalties as provided in chapter 390, R.S.Mo. 1959, for the violation of provisions of said chapter.” This suit followed.

Plaintiff states its position in its brief as follows:

“Thompson’s Motion to Dismiss in the Circuit Court was apparently based on that part of section 508.010, R.S.Mo. 1959 [V.A.M.S.], which provides as follows:
“ ‘508.010. Suits by summons, where brought * * * Suits instituted by summons shall, except as otherwise provided by law, be brought:
“‘(1) When the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may be found.’

“Thompson’s residence and principal place of business is in Livingston County. The Commission’s Petition for Statutory Penalties was filed in Cole County, and Thompson was served with a copy of the Petition in Livingston County. Therefore, if the cited statute controls, the action was improperly instituted in Cole County and should have been dismissed.

“However, it should be noted that the. cited statute provides for venue * * except as otherwise provided by law * * * ’. The Penalty Petition was filed pursuant to Sections 386.600 and 390.156. The venue provisions of these statutes are identical and read as follows:

“ ‘386.600. Actions to recover penalties or forfeitures. * * * An action to recover a penalty or a forfeiture under this chapter or to enforce the powers of the commission under this or any other law may be brought in any circuit court in this state in the name of the state of Missouri and shall be commenced and prosecuted to final judgment by the general counsel to the commission, * * (emphasis added; 390.156 the same).

“It is therefore clear that venue in statutory penalty cases is not determined by Section 508.010 because venue is otherwise provided by law”.

Defendant contends that the general service statute, Section 506.150 R.S.Mo. 1959, V.A.M.S., controls this case, regardless of the effect of the special venue sections. That contention must be sustained because no provision is made in either of the special venue sections relied on for service of process. No mention is made of that subject.

In State ex rel. Minihan v. Aronson, 350 Mo. 309, 165 S.W.2d 404, the court considered a situation similar to that here presented. There, a damage suit was instituted in St. Louis and summons was issued. Service was had on defendants in Wright County. There was venue in St. Louis, under a special statute, but the method of service prescribed therein was not followed. It was held that the court acquired no jurisdiction to render a personal judgment against defendants for lack of service. In arriving at that conclusion the court (page 406 and paragraphs 12 and 13, of page 408) specifically rejected the theory that, (which is suggested here by plaintiff) while service was not had pursuant to any specific statutory authorization, when a statute fixes the venue of a cause, regardless of the residence of the parties, the statute either expressly or by necessary implication authorizes the issuance and service of summons upon such defendant in any county in the state.

The Court, (407 of 165 S.W.2d) also said:

“[5-8] Furthermore, it has become a principle in this jurisdiction that even though a statute may be held to be a special venue statute, creating a new right and, perhaps, a new remedy, yet if the statute fails to provide the manner in which process is to be served the general service statutes apply and personal service, within the meaning of the general statutes, is an absolute prerequisite to the issuing court’s authority to proceed with the cause. State ex rel. Mueller Baking Co. v. Calvird, [338 Mo. 601, 92 S.W.2d 184], supra; Yates v. Casteel, [329 Mo. 1101, 49 S.W.2d 68], supra; Stanton v. Thompson, 234 Mo. 7, 136 S.W. 698”.
# * * * *
“ ‘Reading these statutes (the service sections) and the venue statute together, do they not mean that it is essential to jurisdiction, to enter a personal judgment, for service of summons to be had upon a defendant or defendants (except when defendants reside in different counties) in the county (where plaintiff resides and defendant is found or where defendant resides) in which suit is begun? This court has expressly so held in Yates v. Casteel’. Hankins v. Smarr, 345 Mo. 973, 975, 137 S.W.2d 499, 500.
“[9, 10] It is also generally true that a court’s jurisdiction ‘in personam is confined to persons within the territorial jurisdiction of the court’ and ‘it follows that service of process made beyond such limits is entirely ineffective to confer jurisdiction over the persons against or on whom it is so made.’ 21 R.C.L., Sec. 15; 50 C.J., Secs. 24, 25, 57, 68; Hankins v. Smarr, supra; Yates v. Casteel, supra. This is not an immutable rule, however, but any change in the rule depends upon valid legislative action. 50 C.J., Sec. 69; 42 Am.Jur., Sec. 49.”

The court’s rulings in State ex rel. Mueller Baking Co. v. Calvird, 338 Mo. 601, 92 S.W.2d 184 and Yates v. Casteel, 329 Mo. 1101, 49 S.W.2d 68, constitute authority for the rule declared in State ex rel. Minihan v. Aronson, supra. That decision was cited in State ex rel. Ballew v. Hawkins, Mo.App., 361 S.W.2d 852 and in State ex rel. Kissinger v. Allison, Mo.App., 328 S.W.2d 952, these being the most recent cases we have found wherein the decision in the Aronson case was discussed and considered. Nothing was said in either of those decisions which tends to weaken the force and effect of the rule stated.

The judgment is affirmed.

MAUGHMER, C, concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court.

All concur.


author: BROADDUS, Presiding Judge.

text:
    L. C. RICHARDSON, Plaintiff-Respondent, v. SAFEWAY STORES, INC., Defendant-Appellant.
    No. 23979.
    Kansas City Court of Appeals. Missouri.
    June 1, 1964.
    James W. Benjamin, Rogers, Field & Gentry, Kansas City, for appellant.
    Bernard Eveloff, Kansas City, for respondent.
   BROADDUS, Presiding Judge.

This is an action for damages for personal injuries. The case was originally filed in the Magistrate Court, appealed and tried in the Circuit Court without a jury. Judgment was entered in favor of plaintiff for the sum of $345. Defendant appealed.

Plaintiff Richardson was shopping at the Safeway Store at 31st Street and Myrtle, Kansas City, Missouri, between 7:00 and 7:30 P.M. on January 31, 1962. As he was walking by the meat counter, he suddenly fell backwards. He got up and saw a bone on the floor. He stated that this bone which caused his fall was “about two inches, two by two”, was round, and had marrow in the center and “meat around it”. He reported the fall to a lady at.the cashier’s office and showed her the bone that he had fallen on. On cross-examination plaintiff admitted that he did not know how long the bone had been on the floor before he fell.

Defendant called as a witness Mrs. Mary B. Ogden who testified that on January 31, 1962, she was employed by defendant in its Myrtle Avenue store as a meat wrapper; that all meat before being placed in defendant’s display cases is wrapped in cellophane ; that the meat department employees never carry unwrapped pieces of meat or bones out in front of the counter. Mrs. Ogden stated that she left the store at 7:00 P.M.; that between 6:30 and 7:00 P.M. she checked the aisle in front of the meat counter and found no “meat bones or anything else” on the floor; that the butchers had left at 5 :00 P.M., and if they had given any dog bones before they left the bones would have been wrapped in paper.

Defendant’s cashier, Mrs. Dorothy Wil-lener, testified that plaintiff came to the booth window “and put the bone in, which was a dirty, dried -up steak bone, and said he had fallen on it.” She called Mr. Robert Coleman, who was in charge of the store, and gave the bone to him.

Mr. Coleman testified that “Mrs. Willener called me up to the booth and when I went up there she had this round bone that the man had fallen on. And I asked the man if he was hurt and he said he had bumped his elbow when he fell but he said that it wasn’t bothering him, so I took the bone, put it in the booth. The next morning I gave it to the head butcher.”

Defendant contends that the court erred in refusing its motion for judgment because the evidence failed to make a submissible issue of defendant’s negligence and did not establish notice to the defendant of any bone on defendant’s floor prior to the plaintiff’s alleged fall.

The law governing this case is well settled. It is stated in the case of Robinson v. Great Atlantic & Pacific Tea Co., 347 Mo. 421, 147 S.W.2d 648, as follows:

“ 'The applicable law, as announced by the courts of this state, is that a storekeeper is not liable to his invitee for injury resulting from a dangerous and unsafe condition of the store unless it is shown that the storekeeper had knowledge, actual or constructive, of such condition in time by the exercise of ordinary care to have remedied the condition before the occurrence of the injury. McKeighan v. Kline’s Inc., 339 Mo. 523, 98 S.W.2d 555; Broughton v. S. S. Kresge Co., Mo.App., 26 S.W.2d 838; Hogan v. S. S. Kresge Co., Mo.App., 93 S.W.2d 118; Varner v. Kroger Grocery & Baking Co., Mo.App., 75 S.W.2d 585; Hubenschmidt v. S. S. Kresge Co., Mo.App., 115 S.W.2d 211; Monsour v. Excelsior Tobacco Co., Mo.App., 115 S.W.2d 219; Scott v. Kline’s Inc., Mo.App., 284 S.W. 831.’ Smith v. Sears, Roebuck & Co., Mo.App., 117 S.W.2d 658, loc. cit. 661.”

In the case of Lance v. Van Winkle, 358 Mo. 143, 213 S.W.2d 401, 402, the following language appears:

“The rule is well settled that a customer who is injured by slipping upon some foreign substance at a store has the burden of producing evidence showing the presence of the foreign substance for a sufficient length of time to give notice of its presence to the storekeeper. After such notice the failure of the storekeeper to remove it constitutes negligence. See State v. Bland [357 Mo. 339], Mo.Sup., 208 S.W.2d 263.”

In the instant case there is no evidence that defendant had actual knowledge that the bone was on the floor, or of the length of time it had been there or how it got there. It is wholly a matter of speculation and conjecture.

Plaintiff cites two cases in support of his contention that a submissible case was made. They are Alvey v. Sears, Roebuck & Co., 360 S.W.2d 231, Mo.Sup., and Maybee v. Missouri Orpheum Corp., 238 Mo.App. 537, 181 S.W.2d 771. Both of those cases, on their facts, are distinguishable from the instant case.

In the Alvey case there was testimony on the part of plaintiff that there was an employee who immediately preceded the plaintiff down the aisle. The Supreme Court therefore concluded that the jury could find that a foreign object was on the floor at the time the employee went by and that he failed to see it.

In the Maybee case the plaintiff caught her foot under a “cupped-up” place in a carpet and fell. This court held that sufficient facts were shown for the jury to find that the “cupped-up” condition existed prior to the time the plaintiff entered the theatre and that the defendant’s employees by the exercise of care could have discovered the condition.

In the instant case, as we have said, there is not a particle of evidence tending to prove that defendant knew that the hone was on the floor, or how long it had been there or how it got there. Failure of proof on this vital issue bars plaintiff’s right to recover.

The judgment is reversed.

All concur.


text:
    Velma HANKINS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, and Elizabeth Hankins, Respondents.
    No. 23998.
    Kansas City Court of Appeals. Missouri.
    June 1, 1964.
    M. Randall Vanet, Shook, Hardy, Ottman, Mitchell & Bacon, Robert Morris Coleman, Kansas City, for appellant.
    Thos. E. Deacy, Deacy & Deacy, Kansas City, for respondents.
   BROADDUS, Presiding Judge.

In this case Velma Hankins as plaintiff under authority of Sect. 379.200 V.A.M.S. seeks to reach and apply the proceeds of a liability insurance policy issued by defendant State Farm Mutual Automobile Insurance Company to satisfy a money judgment against defendant Elizabeth Hankins in a former suit. The trial court entered judgment for defendant insurance company. Plaintiff appealed.

Plaintiff is the mother of Elizabeth Han-kins. On September 4, 1956, plaintiff was a passenger in an automobile operated by her daughter which was involved in an accident resulting in injuries to plaintiff. On said date State Farm had in force a liability insurance policy which provided certain coverage to its assured, Elizabeth Hankins. One of the legal liabilities of defendant Elizabeth Hankins which the State Farm policy did not cover is stated in the policy as follows:

“Exclusions * * *
“This policy does not apply under * * * Coverage A * * * for bodily injury to * * * any member of the family of insured residing in the same household as the insured.”

The accident was timely reported to State Farm. Thereafter plaintiff filed suit, seeking damages from her daughter Elizabeth who forwarded service copy of the summons .and petition to State Farm promptly after service. State Farm thereupon employed attorneys to defend the action and a jury trial resulted in judgment against defendant Hankins in the sum of $2500 on March 1, 1960.

Before the damage suit was filed Elizabeth Hankins advised State Farm representatives that her mother resided in the same household with her in Kansas City, Missouri. The plaintiff’s petition subsequently filed alleged plaintiff’s residence to be in Bradleyville, Missouri.

Upon receipt of the service copy of the summons and petition from Elizabeth Han-kins, State Farm advised her by letter of the coverage exclusion quoted above and informed her that its continued defense of the action should not be construed by her as a waiver of any policy defense State Farm then or thereafter might have. Elizabeth Hankins did not reply to these letters.

At the trial of the instant case plaintiff’s own evidence conclusively established that Velma Hankins was the mother of insured Elizabeth Hankins, and that at the time of the accident and for more than one year prior thereto they had continuously resided and lived together in the same apartment at 512 Bellefontaine, in Kansas City, Missouri. They both testified that they occupied the same bedroom and slept in the same bed.

Plaintiff contends that the trial court erred in finding the issues for defendant because “there was substantial evidence that defendant State Farm by its acts had waived and was estopped to assert its household exclusion coverage defense.” The burden of proving facts which would establish a waiver and estoppel was upon plaintiff. Cheatham v. Kansas City Life Ins. Co., 241 S.W.2d 47, 51, Mo.App. We agree with the trial court that plaintiff failed to carry that burden.

The three non-waiver letters which defendant wrote to insured and which were offered in evidence by the plaintiff clearly prevented any waiver or estoppel.

In the case of Linenschmidt v. Continental Casualty Company, 356 Mo. 914, 204 S.W.2d 295, the court held that in a case where there was a question as to whether or not a party not named in a policy was covered thereby the company did not waive the coverage question where it had explained the possibility that the insurance did not cover him personally and where the company entered into a defense of the case under a non-waiver letter signed by the third party. The court cited in its opinion 45 C.J.S. Insurance, § 714, pp. 686, 689. On pages 686-687 of 45 C.J.S. it is said:

“An insurance company, however, may defend insured and still reserve its defenses on the policy in respect of forfeiture or noncoverage, and where it does so no waiver or estoppel may be invoked to preclude the company from asserting nonliability, and where the company preserves its rights by a nonwaiver agreement, or by its timely disclaimer of liability, and clear reservation of its rights to assart nonliability is sufficient irrespective of the form of agreement, or the absence of a non-waiver agreement. Thus an insurance company defending an action against insured may by due and timely action preserve its right to assert nonliability on the ground that the injury was not within the coverage of the policy, as that the contract did not include the person injured, or the person causing the injury within its purview. (Italics ours.)

As authority for the foregoing statement the text cites many cases.

In the case of Royle Mining Co. v. Fidelity & Casualty Co., 161 Mo.App. 185, 142 S.W. 438, at page 444, the court said:

“If the plaintiff understood that the defendant reserved its rights under its indemnity policy at the time it assumed charge of the defense of the McDaniels action, then there never existed any estoppel against the defendant.”

In that case it was claimed that the insurance company had notified the insured by letter (before assuming defense of a case) wherein it expressly reserved its right under its contract to disclaim any liability for any judgment which might be recovered in the case and that the insured thereafter did not object to such procedure, and the court held that, if the foregoing facts be found to be true by a jury, then there was no waiver or estoppel.

In the case of Western Casualty and Surety Co. v. Beverforden (Mo., 8 Cir.), 93 F.2d 166, 1. c. 169, the court said:

“The complaint shows that the appellant defended Dorothy Shelton on notice to her that it would pay no judgment recovered against her, because she was not covered by its policy. A waiver is a voluntary relinquishment of a known right, the ‘intended giving up of a known privilege or power.’ * * The conditional defense of Dorothy Shelton by the appellant would, we think, not constitute an assumption of liability by the appellant or a waiver of its right to deny its liability to the appellee for the judgment obtained.”

In the case of Myers v. Continental Casualty Co., 223 Mo.App. 781, 22 S.W.2d 867, the court held that an insurance company did not waive any of the policy provisions where it assumed defense of a case under a nonwaiver notice and notice that the company would disclaim liability for any judgment recovered in the case in event the facts disclosed that there was no coverage. In that case there was no written non-waiver agreement signed by the parties," only a letter from the company to the insured. The insured in.that case, after receipt of the notice, did not advise the company that its conditional defense of the case-was not acceptable.

Under the evidence in the instant case it is clear that the insured fully understood the position of the defendant and accepted the defense of the suit which her mother had filed against her without protest, with the full knowledge and passive acquiescence in the position of the company that the mother was not covered under the policy and that the company did not waive its rights to thereafter claim that it would not be liable for payment of any judgment which the mother might obtain against the daughter.

We have not failed to note the cases cited by plaintiff-appellant, but the facts in this case do not bring it within their scope.

The judgment is affirmed.

All concur.