Employers Mutual Casualty Co. v. Nosser

Lee, C. J.,

Dissenting:

While I have great respect for the opinions of all my colleagues on the Court, I do not agree with the conclusion which has been reached by the majority in this case. It is therefore with deference that I state briefly my reasons for this dissent.

Joseph J. Nosser on November 14, 1961, purchased from Employers Mutual Casualty Company, through its agent at Natchez, a liability insurance policy on his automobile for a one year period, paying the premium therefor in cash. Subsequently on February 28, 1962, he purchased additional coverage and likewise paid the premium in cash. On April 4, 1962, he was involved in a collision between his car and another. He reported the wreck immediately to the insurance *570 company, but it refused to defend the claim, saying that the policy had been cancelled, in accordance with its terms, prior to the accident. Nosser was sued by the owner of the other car. He employed a lawyer and the trial resulted in a judgment of $748.48 against him. The insurance company having- made known its refusal to recognize its liability under the policy, Nosser brought suit for the sum of $748.48, the amount of the judgment, plus $1,146.14, the amount of damage to his own car.

The defendant pled provision 16, being the cancellation provisions of the policy, the pertinent part of which is as follows: “This policy may be canceled by the company by mailing to the insured named in Item 1 of the declarations at the address shown in this policy written notice stating when not less than ten days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The time of surrender or the effective date and hour of cancellation stated in the notice shall become the end of the policy period * * * . Premium adjustment may be made either at the time cancellation is effected or as soon as practicable after cancellation becomes effective, but payment or tender1 of unearned premium is not a condition of cancellation.” (Emphasis supplied).

Nosser testified as follows: He lived alone at 13 Brentwood Lane, Natchez, Mississippi, the address given in the policy, in a two bedroom house. He was secretary-treasurer of Jitney Jungle in that city. He had a business education and knew the necessity for attention to his mail. All of Ms mail came to the above address, where he had a mail box. There was no one at his home except the maid, who cleaned up the premises, and she did not touch his mail. He was the only one who ever handled it. Mail was important to him. and he gave it his full attention. He opened every piece each day and carefully observed its contents. He *571 was at home every day from March 14th to and through April 4th, and it was impossible for him to have received through the mail a notice of cancellation from the insurance company and that he either lost or misplaced it. He received no notice of cancellation from the company or the local agent until after he reported the collision to the company and it then told him that the policy had been previously cancelled by mailing the notice to him on March 15th. Besides, the company did not refund the sum of $87, which accrued to him if the policy was in fact cancelled at that time, and it had not done so even up to the time of the trial in August 1962.

The insurance company offered two of its agents, who testified that they had directions from the company to cancel this policy; and that a form of cancellation was prepared in full accordance with the provisions of the above stated cancellation paragraph. The lady employee testified that she carried to the post office a sealed, postage prepaid, properly addressed letter to the appellee, in which the original cancellation notice was enclosed, and delivered it to a postal employee, and that he gave her a receipt for it and then placed the letter in the mail box. The receipt, dated March 15, 1962, stating that it was a piece of mail, and a copy of the alleged cancellation, were introduced in evidence. The witness used the so called window envelopes, that is, the address on the enclosure was folded so that it served, by means of the transparent material in the window, for the address of the envelope. But, on cross-examination, she was sure that she had never folded one so that it slipped out of position or could not be read. She admitted that she had handled many pieces of such mail, and, while she did not remember even half of the names of the people to whom she had sent mail, she was positive that she remembered this one.

*572 Simplifying the issue, the version of the appellant was that one of its representatives posted the letter, which cpntained the cancellation, with postage prepaid and properly addressed to the appellee and obtained a receipt from a postal employee for “one piece of ordinary mail”. On the contrary, the version of the appellee was that he himself received all of Ms mail for the entire period when cancellation was claimed to have been effected, and that no notice of cancellation came to him through the mails or in any other way.

Thus, on the one hand, an employee of the company (an interested witness) testified that she mailed the letter. The postal receipt was for “one piece of ordinary mail”, and in no way identified the contents of the letter. On the other hand, the appellee (an interested witness) testified that he did not receive the letter.

The chancellor was sitting as judge of both the law and the evidence, saw the witnesses as they testified, observed their demeanor, and was in better position to determine the weight, worth and credibility of the witnesses than an appellate court. In a written opinion, he took note that the policy had been amended shortly before the accident; and that neither the local agent nor the company itself, with whom the appellee had dealt, claimed to have given the notice of cancellation. He then found as a fact that no notice of cancellation was in fact mailed to the appellee; that the appellee received no notice; and that, while the unearned premium of $87 had not been returned or tendered even at the trial and that such was not a prerequisite to cancellation, at the same time this failure to refund had evidentiary weight with him that there had been no cancellation.

Professor Wigmore, in his treatise on Evidence, in Section 2519, Yol. 9 3rd ed., has a discussion on the “Execution and Contents of Document: (1) Letters and *573 Telegrams; Presumption of Arrival. (A).” In (B) pp. 431-433, he says: “In cases involving the application of this presumption, based on due mailing in the Government postal machinery, it becomes necessary to distinguish two issues raising* different problems as to the sufficiency of evidence, viz. (a) cases where the issue under the pleadings is whether the letter was received; (b) cases where the issue under the pleading is whether the letter was mailed. (In both issues, we are to have in mind that the procedural effect of a presumption is to require (or justify) the conclusion unless some sufficient evidence to the contrary is introduced (ante. Sec. 2491), in which case the issue is before the jury merely on the relative strength of the conflicting evidence).

“(a) Where the issue is whether the letter was received by the addressee it often occurs that the addressee’s testimony denies the arrival and receipt. This being some evidence to the negative of the issue, the binding* effect of the presumption ends, and the issue goes to the jury to decide upon the weight of the evidence. On this point a Court is occasionally found holding* that the uncontradicted testimony of the addressee denying the receipt ‘entirely negatives the presumption;’ and that therefore the jury cannot find for the receipt; which is, of course, unsound because the jury may not believe the denial, as other Courts have pointed out.

“(b) Whether the letter was mailed, becomes often the issue under the substantive law; for example, in charging* an indorser of a negotiable instrument with a notice of the notarial protest, or in charging an insured with notice of a premium clue; here the actual receipt of. the letter becomes immaterial; the mailing suffices. But suppose that the addressee testifies in denial of the receipt¶ If this denial be believed, then is not the non-arrival of the letter some evidence that *574 it was never mailed? The presumption above rests upon the supposed uniform efficiency of the postal service in delivering letters duly stamped, addressed, and mailed into its custody; if therefore the efficiency is operating, does not the non-arrival of an alleged letter indicate that such a letter was never given into the postal custody? Add to this, that the testimony to mailing comes usually from the mouth of persons who are vitally self-interested in proving the fact of mailing, e.g. a bank cashier who as notary mails notices of protest of the bank’s negotiable instruments, or the agent of an insurer seeking to avoid a liability under the policy ¶

“If therefore the addressee’s testimony (also an interested witness) be believed, the non-arrival of such a letter is some evidence that no such letter was mailed; in short, it becomes essentially a question which testimony the jury will believe; therefore the case may go to the jury on that issue. This is the correct view, accepted by many Courts; some of them, however, limit such a ruling to cases where the testimony to mailing comes from an interested witness; some of them ask for something circumstantial in addition to the addressee’s mere denial.” (Emphasis supplied). The author lists in the notes to the above statements a number of cases to justify his conclusion. See also cases on this question cited in 1962 pocket supplement thereto.

The foregoing authority seems to point out clearly that where the evidence on the one hand is that the letter was mailed, but the evidence on the other hand is that the letter was not received by the sendee, this raises an issue for the determination by the jury as to whether the letter was in fact mailed.

Thus because of the reputation of the United States mails for efficiency, according to the authorities, two so-called “presumptions” seem to have arisen, namely, (1) a letter, directed to the sendee at his post office *575 address, postage prepaid, and mailed, is presumed to be received by the sendee; and (2) if such a letter, so addressed and with the necessary postag*e is not received, it is presumed that it was never mailed.

This Court appears to be committed to the above doctrine. In the case of Young v. Westphalen & Co., 111 Miss. 765 , 72 So. 193 (1916), J. K. Young, Administrator of the Estate of W. L. Young, and other alleged partners, were sued by the appellees for damages alleged to have accrued on account of the breach of a contract. During the trial, J. P. Leake testified that W. L. Young had been a member of the firm of J. P. Leake & Company from June 1908 to May 1909; but that in July 1909 the witness wrote the plaintiffs that Young had withdrawn from the firm and that the witness would continue in business alone, and that he posted this letter in the U. S. mails. The plaintiffs denied receiving this letter. At the close of the evidence the court directed a verdict for the plaintiffs and Young appealed. This Court, in reversing the judgment of the court, granting a peremptory instruction, said: ‘‘While a presumption that a letter, properly addressed, stamped, and mailed, reached the addressee is not conclusive, but may be rebutted by evidence showing that the letter in fact was not received, whether the rebutting evidence is sufficient to overcome the presumption is a question for the jury. See cases cited in notes to Peder Silberberg Co. v. McNeil, 49 L.R.A. (N.S.) 468, and Merchants’ Exchange Company v. Sanders, 4 Ann. Cas. 955. It follows, therefore, that in the case at bar it ivas for the jury to say whether a letter addressed to appellees, notifying them of the dissolution of the partnership of J. P. Leake & Co., was mailed, and, if mailed, whether it was received.” (Emphasis supplied).

In McCreary v. Stevens, 156 Miss. 330 , 126 So. 4 (1929), Stevens sued the appellants to recover on three promissory notes, executed by them to Brenard Mfg. *576 Company, who, in turn, transferred them to appellee allegedly for a valuable consideration, before maturity, without notice of defenses, etc. Under their notice under the general issue, the appellants testified to the receipt of a letter from Stevens in which he stated that he was contemplating the purchase of these notes; that they answered this letter by mail, stating that the payee company had not complied with its agreement, and that they would not pay the notes; but that if the company would carry out its agreement, they were willing to carry out theirs. Stevens, in his deposition, testified that he had no knowledge of any agreement between these parties and had bought these notes and had no notice of any defenses to them. At the close of the evidence the court held that the evidence of the appellants was insufficient to overcome Stevens’ proof, and granted the appellee’s requested peremptory instruction. The opinion, in reversing the judgment of the trial court, said: “We think it was reversible error for the court to exclude the evidence of the defendants (McCreary and Metts.) It will be noted that the defendants testified that they received a letter from P. L. Stevens, mailed from Iowa City, stating- that he was contemplating buying the notes in question, and that, in answer thereto, they mailed to him, at Iowa City, a letter stating that Brenard Mfg. Company had not carried out their agreement, and that the notes would not he paid. We think, this evidence, under the case of Young v. Westphalen & Co., 111 Miss. 765 , 72 So. 193 , 194, was sufficient to make a case for the jury’s determination, as to whether Stevens received the letter or not.” Cf. also Threat v. Threatt, 212 Miss. 555 , 54 So. 2d 907 (1951).

In Allied American Mutual Fire Ins. Co. v. Paige, Municipal Court of Appeals for the District of Columbia, 143 A. 2d 508 (1958), the appellees purchased a policy of automobile liability insurance from appellant in Peb *577 ruary 1957. The policy contained the following provision with respect to cancellation: “* * * This policy may be canceled by the company by mailing to the insured named in Item 1 of the declarations at the address shown in this policy written notice stating when not less than ten days thereafter such cancellation shall he effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The effective date and hour of cancellation stated in the notice shall become the end of the policy period. * * *”

Appellees were subsequently involved in a collision with another car and had to pay for the damages. Appellant refused to make reimbursement because, they said, the policy had been canceled prior to the collision. The trial judge, sitting without a jury, rendered judgment for appellees, from which this appeal was taken.

The only question was whether the policy was effectively canceled. Appellant contended that it mailed to appellees a notice of cancellation prior to the damage. Appellees denied receiving such a notice, and the trial judge found that they did not receive it. Appellant argued that cancellation was accomplished by simply depositing the notice in the mail, and that actual receipt by the policyholder was unnecessary. It was said that several courts, which have passed on the type of provision involved, reached and enforced such an interpretation. The court then assumed, without so holding, that only mailing and not receipt of the notice was required to cancel the policy.

But the appellees urged that appellant’s proof was insufficient to establish its claim that it had in fact mailed the notice. The court then pointed out that the testimony in appellant’s behalf was furnished by a Mr. Bittner, one of its local agents, who testified that he was familiar with the procedures and customs in both the Washington and Upper Darby offices. He stated that when a cancellation was decided upon, a letter was *578 typed notifying the policyholder. The original was mailed to the insured, a copy was retained in the company’s file, and a copy was sent to the agent who sold the policy. A carbon copy of the notice, supposedly sent to appellees, dated April 26, 1957, was received in evidence. This document bore the stamped notation, ‘ ‘ Original of this letter Enclosed, Sealed and Mailed by (illegible and unidentified) * * * Date 4/26/57”. An orginal postal receipt, which indicated that on April 26 the post office received from appellant a piece of mail addressed to appellees at their Washington address, was admitted in evidence. Mr. Bittner identified both of those exhibits as records and documents kept by appellant in the usual course of its business.

The opinion then said: “It is argued that appellant’s proof of mailing was not refuted merely by appellees’ evidence of nonreceipt and consequently appellant should have been awarded judgment. We recognize that some of the cases, which have held that mailing alone effected cancellation, have also determined that proof of mailing* is not rebutted by testimony that the notice was not received. * * * Other courts, however, have rejected this approach. As Wigmore has pointed out, the presumption of receipt by the addressee, which is created by proof that mail matter was properly stamped, addressed and delivered to the post office, is founded on the supposed uniform efficiency of the postal service ; consequently if the mails are functioning properly, then a failure to receive a certain letter tends also to show that it was in fact never posted. We believe that this is the correct view and accordingly adopt it. Thus evidence of nonreceipt is sufficient to rebut a prima facie case of mailing and create a true issue of fact to be resolved by the trier of facts as to whether the claimed mailing did occur.”

White v. Dixie Fire Insurance Co., 36 S. E. 2d 923 (1946), a Supreme Court of North Carolina case, was *579 a suit by White to recover on a policy of insurance for damage by “collision or upset”, which posed this sole question: Was the policy canceled prior to the alleged damage, and, if liable, the amount?

The cancellation clause was as follows: ‘ ‘ This policy may be canceled by the company hy mailing to the insured at the address shown in this policy written notice stating when not less than 5 days thereafter such cancellation shall be effective. The mailing of the notice as aforesaid shall he sufficient proof of notice and the effective date and hour of date of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the insured or by the company shall be equivalent to mailing. * * * If the company cancels, earned premiums shall be computed pro rata. Premium adjustment may be made at the time cancellation is effected, and, if not then made, shall be made as soon as practicable after cancellation becomes effective. The company’s check or the check of its representative mailed or delivered as aforesaid shall be sufficient tender of any refund of premium due to the insured.” (Emphasis supplied).

The plaintiff alleged and offered evidence to show that the upset occurred February 28, 1945; that he mailed the proper notice of the occurrence to the company on the same day; that the defendants declined liability, declaring that it had cancelled the policy on January 8, 1945 and notified the plaintiff of such cancellation; that the plaintiff had not received any notice of cancellation, nor did he receive the unearned part of the premium until a check, dated March 3, 1945, was received several days later; and that he returned the check.

On the trial, the “defendant introduced as its only witness one M. L. Martin, who testified, summarily stating: That he is the countersigning agent at Severn, Northampton County, North Carolina, of the Dixie Fire *580 Insurance Company under its agency, American Bank & Trust Company, at Suffolk, Virginia; that the policy in question was delivered through the Suffolk agency and countersigned hy him; that the notice of cancellation (the same as set forth in Section 9 of the answer) and form of post office receipt No. 3817 were typed in the Suffolk office and brought to him hy a Mrs. Boyer, accompanied by Mr. Moore, a bookkeeper, from that office; that he signed and mailed on 8 January, 1945, the notice they brought to him; that he obtained receipt from the Post Master as follows: ‘Received from M. L. Martin, Severn, N. C., one piece of ordinary mail addressed to Mr. L. G-. White, Route 1, Edenton, N. C. This receipt does not provide for indemnification. U. S. Government Printing Office 5-10325 Post Master,’ stamped and postmarked ‘Severn, N. C., Jan. 8, 1 P. M., 1945’; that on same day he himself signed a certificate on the bottom of a carbon copy of the notice as follows: ‘I hereby certify that on January 8, 1945, I sent hy first class mail a notice of cancellation, an exact carbon copy of which appears above, and that form 3817 attached hereto is receipt of same obtained from the U. S. Post Office’; that the copy has been kept in the Suffolk office; that he signed a group of notices, how many he does not show; that the lady brought them the only time she has been to his office; that he did not pay any attention to the number nor the names; that Mrs. Boyer ‘brought the notices to me prepared and I signed them and took them to the Post Office in person’; that the premium was sent from the insurance department at Suffolk; that he kept no record of how many policies he handled a month; and that the record is kept in the Suffolk office.

“Defendant further offered in evidence the allegation of the complaint as to receipt and return of check for unearned ■ premium. ’ ’

*581 After statement of the contentions of the Insurance Company, the opinion said: “We are of opinion, however, that plaintiff’s evidence does not present a complete defense of cancellation of the policy as pleaded affirmatively by defendant. It shows no more than that defendant had stated in writing to plaintiff that there was a cancellation of the policy by mailing of notice. On the other hand, such statement is not the only evidence offered by plaintiff. There is evidence that no such notice had been received by him through the mails, and that there had been no return of premium before the plaintiff filed claim on account of damage to his automobile. These are circumstances bearing upon the weight of statements of defendant. If the notice had been mailed, it would ordinarily in the usual course of mails have been delivered to plaintiff. Since there is evidence that it was not so delivered, it is a question for the jury to say, under all the circumstances in evidence, whether the notice ivas in fact mailed. Compare Standard Trust Co. v. Commercial Nat. Bank, 166 N. C. 112 , 81 S. E. 1074 , and Eagles v. East Carolina Ry., 184 N. C. 66 , 113 S. E. 512 . In the Trust Company case, it is said: ‘When evidence is introduced showing that a letter has been “mailed”, this established prima facie that it was received by the addressee in the usual course of the mails, and his business, and, when the latter introduces evidence that it was not in fact received, or, not received at the time alleged, such testimony simply raises a conflict of evidence, on which it is the exclusive province of the jury to pass.’ ” (Emphasis supplied).

As to the contention of the appellant that its evidence was overwhelming, the court said:

“Appellant next contends that even if it be not entitled to judgment as of nonsuit on plaintiff’s evidence, the testimony of the witness M. L. Martin is not contradicted and is not in conflict with plaintiff’s evidence, *582 and lienee its motion for judgment as of nonsuit at the close of all the evidence should have been granted. As to this, what is said above as to the first contention is an appropriate answer.”

In Verecchia v. De Siato, (American Mutual Life Ins. Co. Garnishee) 45 A. 2d 8 (1946), a Supreme Court of Pennsylvania case, Verecchia had sued De Siato for injuries occasioned from the latter’s car, on which the Garnishee carried the liability. It refused to defend. Verecchia recovered a judgment for $4,040, and then sued the Garnishee. The trial judge, at the close of the evidence, directed a verdict for the Garnishee. However, on motion for a new trial on the ground that it should' have been submitted to the jury, he sustained the same, and following such trial, the jury found for the plaintiff.

The method of cancellation was as follows: ‘ ‘ This policy may be canceled by the company by mailing written notice to the named insured at the address shown in this policy stating when not less than five days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice and the insurance under this policy shall end on the effective date and hour of cancellation stated in the notice. Delivery of such written notice either by the named insured or by the company shall be equivalent to mailing.”

The company contended at the trial that the cancellation notice was duly prepared, the covering envelope was properly addressed, postage was affixed and the notice deposited in the United States mail in the due course of office procedure. This contention was presented by the oral evidence of a clerk, who also identified a postage receipt as having been given by the local post office for the notice, although, of course, this receipt referred only to an envelope and not to its contents. The insured denied having received the can *583 cellation notice. Plaintiff’s right to recover from the garnishee therefore depended upon whether the policy had been, in fact, “canceled” by the notice alleged to have been sent.

Refunds of unearned premiums might be made at the time cancellation was effected and, if not then, as soon as practicable after cancellation became effective.

The company held the premium refund at the time of the attempted cancellation, but the opinion said: “However, the policy obliged the company only to make the refund premium as soon as practicable after cancellation had become effective.”

The decision of the issue at stake was as follows: “On the state of the record thus indicated, we concluded that it ivas for the jury to pass upon the evidence as to whether the notice of cancellation had m fact been duly sent. The clerk’s oral testimony was circumstantially strongly supported by a ‘document’ — the postal receipt; but this did not withdraw the question of notice from the circle of dispute or controversy. The insurer had the burden of proving the policy had been terminated, and whether the notice had been duly given remained an issue of fact despite the circumstance that the undoubted weight of the evidence inclined toward the insurance company. In other words, the credibility of the clerk’s testimony with reference to the notice and the mailing of it was for the jury. See Osche v. New York Life Insurance Company, 324 Pa. 1 , 187 Pa. 1 , 187 A. 396 ; Zenner v. Goetz, 324 Pa. 432 , 188 A. 124 ; MacDonald v. Pennsylvania R. Co., 348 Pa. 558 , 36 A. 2d 492 .” (Emphasis supplied).

The order granting- the new trial, and the result thereof, was affirmed.

In Keeling v. Travelers Ins. Co., Hartford, Conn., 67 P. 2d 944 (1937), a Supreme Court of Oklahoma case, Keeling- was the beneficiary of an insurance policy on the life of his wife. The policy was paid up. Under *584 its terms, the maximum loan value could be borrowed; but, in such case, any time the loan was in default by failure to pay principal or interest, the policy might be canceled upon notice. “The loan agreement provided notice of cancellation was complete when notice had been mailed. In other words, it was agreed between the parties that mere mailing of the notice constituted notice, and in consequence, receipt was not a part of the process by which notice was given.”

The opinion then said: “This court has heretofore announced that when it is shown that a letter was prepared for mailing, was stamped and put in the mail, a presumption arises that the addressee received the letter in due course. Reeves & Co. v. Martin, 20 Okl. 558 , 94 P. 1058 ; United States Fire Ins. Co. v. L. C. Adam Merc. Co., 117 Okl. 73 , 245 P. 885 , and other cases. This presumption arises and is indulged because of the known dependability and regularity of the mails. This presumption is rebuttable.” The defendant introduced evidence that the letter containing the notice was mailed. The clerk, who so testified, based her testimony on the routine of her tasks and the office records she kept which indicated that she had performed her routine duty.

The plaintiff testified that neither he nor his wife, during her lifetime, received the notice. He explained why he knew Ms wife did not receive the notice by testifying she was not able during* this time to go for the mail; that she could not read (ostensibly compelling her to submit to her husband her mail for perusal); and that he always got the mail. The opinion then said: “Since the presumption above discussed arises because of our confidence in the mails, we must likewise apply it conversely, and when a person swears he did not receive a letter, a presumption arises that it was not mailed. It at least raises a doubt on that point.

*585 “We do not hold, that actual receipt of the letter was essential to notice of cancellation; but, we do hold that when plaintiff testified he did not receive the letter, he thereby raised a question of fact for the jury as to whether it was mailed. This identical question was so decided in the case of Wilson, v. Frankfort Marine, etc., Ins. Co., 77 N. H. 344, 91 A. 913, 914 , and that court said: 'One error in this argument is the assumption that the jury must find that the letter was written and mailed. The presumption arising- from the known regularity of the United States mail service is as available for the supposed receiver of a letter as for the alleged sender thereof. If proof that a properly addressed and stamped letter loas posted gives rise to a presumption that it was received in due course (1 Wig. Ev. Sec. 95), so proof that no letter toas received warrants a finding that it was never posted. If this plaintiff’s testimony denying the receipt of the letter was believed, the jury would be warranted in going further and finding that the letter was not posted.’ See, also, 22 C. J. 102, Sec. 44, note 50.”

Because the issue should have been submitted to the jury, as, the opinion said, the jury “may well have chosen to believe the letter was not mailed from the character of the insurance company’s clerk’s testimony.” (Emphasis supplied.)

In Jensen v. Traders & General Ins. Co., 296 P, 2d 434 (1956) DCA California, after the Jensens obtained judgment against one Di Matteo, who carried a liability policy with Trader, etc., both of them brought this suit against the Insurance Company for reimbursement.

The Insurance Company pled the cancellation clause in the policy as follows: ‘ ‘ This policy may be canceled by the named insured by surrender thereof or by mailing to the company written notice stating when thereafter such cancellation shall be effective. This policy may *586 be canceled by the company by mailing to the named insured at the address shown in this policy written notice stating when not less than five days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice and the effective date and hour of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the named insured or by the company shall be equivalent to mailing.”

The company also adduced evidence tending to show that it mailed notices of cancellation to the policyholders (John Di Matteo and his son Jim) on August 10, 1951. The person in charge of its cancellation department did not specifically recall the handling of the papers in question. Based upon defendant’s office system and practice, she deduced from carbon copies of cancellation notices to the Di Matteos (which bore her initials) and from two post office receipts in the defendant’s possession, that the originals of these two notices were mailed in sealed envelopes properly addressed, with sufficient postage affixed. These postal receipts did not indicate the nature of the contents of the eiwelopes. A postal official who described the use and purpose of such a receipt explained it is not a receipt for registered mail; it serves solely as an acknowledgment of the receipt into the U. S. Mail of a piece of ordinary mail addressed to a person named on the receipt.

In holding that the Insurance Company was not entitled to a directed verdict, but that the evidence was sufficient to make a conflict to be resolved by the jury, the Court said: “This was competent evidence of mailing but not the only evidence on that subject. Plaintiffs John and Jim Di Matteo testified positively that no cancellation notice was received and that they had no inkling of any cancellation until three months later, when the accident occurred and they reported it to the insurance company. A circumstance tending inferential *587 ly to support tlieir testimony is the fact that the Di Matteos sought no new insurance and continued to make the monthly payments on their car to the auto dealer who sold it to them on a conditional sales contract which included an item by way of premium upon the policy in each monthly installment. There was the added circumstance that the father, who made the down payment on the car, signed the sales contract and joined in the application for the policy, would not allow the son, who was under 21, to drive without insurance coverage.

“This furnishes a substantial basis for an inference that notices of cancellation were not mailed, and thus presented a conflict in the evidence to be weighed and resolved by the jury. ‘If proof that a properly addressed and stamped letter was posted gives rise to a presumption that it was received in due course (1 Wig. Ev. Sec. 95), so proof that no letter was received ivarrants a finding that it was never posted. If this plaintiff’s testimony denying the receipt of the letter was believed, the jury would be warranted in going further and finding that the letter was not posted.’ Wilson v. Frankfort Marine, Accident & Plate Glass Ins. Co., 1914, 77 N. H. 344, 91 A. 913, 914 . See also Calkins v. Vaughan, 1927, 217 Ala. 56 , 114 So. 570, 574 ; Matlock v. Citizens’ Nat. Bank, 1926, 43 Idaho 214 , 250 P. 648, 649 , 50 A.L.R. 1418 ; Hobson v. Security State Bank, 1936, 56 Idaho 601 , 57 P. 2d 685, 688 ; Meyers v. Brown-Forman Distillery Co., 1942, 289 Ky. 185 , 158 S.W. 2d 407, 412 ; Keeling v. Travelers Ins. Co., Hartford, Conn., 1937, 180 Okl. 99 , 67 P. 2d 944, 945 ; Keller v. Provident Life & Accident Ins. Co., 1948, 213 S. C. 339, 49 S.E. 2d 577, 581 ; Cisco Mut. Life Ins. Assn. v. Ferguson, Tex. Civ. App. 1928, 8 S. W. 2d 546, 547-548 ; Texas Mut. Life Ins. Assn. v. Burns, Tex. Civ. App. 1936, 92 S.W. 2d 469, 470 ; Border State Life Ins. Co. v. Noble, Tex. Civ. App. 1940, 138 S. W. 2d 119, 122 ; IX AYigmore on Evi *588 deuce, 3rd Ed., pp. 432-433, Section 2519. In New York this principle has been applied in a case in which, the testimony of mailing came from an interested witness, Kingsland Land Co. v. Newman, 1896, 1 App. Div. 1 , 36 N.Y.S. 960 ; rejected in a case in which the evidence of mailing* came from a disinterested witness (a notary’s certificate of protest) and was controverted merely by the addressee’s denial of receipt. Trusts & Guarantee Co. v. Barnhardt, 1936, 270 N. Y. 350 , 1 N.E. 2d 459, 461-462 , criticised in IX Wigmore on Evidence, supra, at pp. 433-434, note 4. The evidence in our case meets all of the requirements of the rule, even as limited in New York.”

South Carolina seems to be committed to the principle that proof of mailing is rebutted by proof of non-receipt, and, in such a case, the issue is for the jury to say whether the letter1 was mailed. Keller v. Provident Life and Accident Ins. Co., 49 S. E. 2d 577 (1948) a Supreme Court decision, citing its own cases, Texas and Idaho cases, and 50 A. L. R. 1418. Compare Matlock v. Citizens’ National Bank, 250 P. 648 (1926), a Supreme Court of Idaho case. See also Midwestern Ins. Co. v. Cathey, 262 P. 434 (1953), a Supreme Court of Oklahoma case, where the addressed envelope, containing the notice was returned to the sender, undelivered, with the notation of the postmaster “not here” and “unknown at address”, and the proof of mailing was held to be sufficient.

The majority opinion refers to certain citations in American Jurisprudence and Corpus Juris Secundum concerning the sufficiency of mailing to comply with provisions for notice. Of course, it has been impossible for me, in the short time for research, to read any considerable number of these cases. Confusion creeps in here just as Prof. Wigmore has pointed out. Prom a number of these cases, it seems clear that proof of mailing, with nothing else, is sufficient to make out a *589 prima facie case. If the mailing is not controverted, it entitles the proponent to judgment. But, if the receipt is denied, there is an issue for the jury, or the trier of facts. There are literally myriads of these cases which apply this rule.

The majority opinion concedes that North Carolina and Minnesota are at variance with its views. It lists Louisiana as being in the large number of States which support its view. Illustrative of what I have just said above is Paz v. Implement Dealers Mutual Ins. Co., 89 So. 2d 514 , from that State, which is based on the view to which I subscribe. The majority opinion also lists Alabama as being on its side. Yet, in Boston Insurance Co. v. Bash, 82 So. 2d 177 (1955), from the Supreme Court of Alabama, cited by the majority, the opinion said: “There is an agreement that the notice required by the policy was given in the manner and form required.” The opinion went off solely on the failure to return the unearned premium at the time of cancellation; and the court held that this did not vitiate the cancellation.

In several of the cases which I have cited, the cancellation provisions have been almost identical. Belatively speaking, they are few in number; but it is unusual that so many cases can be found with such almost exactitude both on the law and the evidence.

It is said that, under oil and gas contracts, the mere mailing of the yearly rentals on the part of the lessee of an oil and gas lease keeps alive the rights of the lessee and that this method is recognized throughout the country. Hence, it is argued that the rule in that respect should be persuasive in the construction of the contract now before the Court. I do not think that these two matters run in parallel lines. In the instance of the oil and gas lease, the right to declare' and seek to cancel because of nonpayment may, of course, arise; but a cancellation' of the lease does not thereby auto *590 matically result. In this case, the contention is that mere mailing, although disputed, has already effected the forfeiture and extinguishment of an existing right, and that the company can retain the unearned premium until it gets ready to return it. But forfeitures do not meet such a royal welcome in the courts of this State.

If the position of the appellant, as sanctioned by the majority opinion, becomes the law of this State, it will license insurance companies to issue and amend policies, and, when claims are reported under those policies, if one of its employees can go through the mental gymnastics of deposing to an incident of mailing notices, such as we have in this case, the companies themselves will become the sole judge and jury to affect the denial of the claim. The policyholder, although he has received no notice of cancellation through the mail or otherwise, may well forever keep his peace, go to a justice of the peace, and institute suit for the recovery of the unearned premium which the company still holds in its coffers. He has had no chance to protect himself by the purchase of other insurance. I can not get my consent to approve such a one-sided contract in view of the past pronouncements of principles by this Court, to my mind, determinative of this question.

Besides, I called attention, in the statement of facts, to the convenient memory of the appellant’s only witness who said that she mailed the letter, and who had never made a mistake in inserting enclosures in window envelopes. In addition, although she had mailed many letters, and frankly confessed that she could not remember even half of the names, yet was. insistent that she definitely remembered the letter to Nosser. The chancellor saw her and Nosser both testify. After observing the demeanor of the witness, he was in better position to decide what the truth was in this matter than the members of the court, reading the cold record. And as the trier of fact, he SOLEMNLY FOUND THAT *591 THE LETTER WAS NOT MAILED! I think it is a mistake for the Court here to substitute its appraisal of the worth of the evidence to the exclusion of that which was solemnly determined by the Chancellor. I would affirm the decree of the trial court.

Kyle and Rodgers, JJ., joins in this dissent.

ON SUGGESTION OF ERROR

Ethridge, J.:

Appellee and the amicus curiae erroneously argue that our original opinion disregarded the evidential rule that testimony by an addressee that he did not receive a letter creates a presumption that it was not in fact mailed, and presents to the jury an issue on the question of mailing. 164 So. 2d 426 . Clause 16 of the insurance policy provided that it could be cancelled by the company by mailing to insured a notice of cancellation, and “mailing of notice . . . shall he sufficient proof of notice.” The proof of mailing was very strong and in fact uncontradicted. It was much more than a simple statement that the notice was mailed. There was testimony by appellant’s clerk, describing the reasons she remembered this particular mailing and the fact of mailing; and documentary evidence in the form of a certificate of mailing executed by the post office department, dated the same day as the notice of cancellation.

The mailing of a notice under clause 16 is sufficient to effect a cancellation. Actual receipt by insured of it is not a condition precedent to termination of the policy by insurer. The unequivocal and undisputed testimony of the mailing, both oral and documentary, constituted proof of the fact of mailing. It removed any presumption of law. The presumption disappeared with the presentation of this undisputed evidence of mailing. 9 Wigmore, Evidence (3d ed. 1940), § 2491. No real presumption is meant to he predicated on evidence of nonreceipt, but it may create a sufficient *592 inference for the jury of nonmailing, where the evidence of mailing is unconvincing or indefinite. That is not the case here. Wigmore recognizes that there must be “some sufficient evidence to the contrary” of mailing, in order to make a jury issue. Ibid., § 2519.

Certain Mississippi cases cited by appellee are not inconsistent with the decision here, since there the evidence of mailing was no more than the oral testimony of the purported sender that the letter in controversy was mailed. Moreover, these cases did not involve a contractual provision in an insurance policy for cancellation by mailing. Young v. Westphalen & Co., 111 Miss. 765 , 72 So. 193 (1916); McCreary v. Stevens, 156 Miss. 330 , 126 So. 4 (1930); see Threatt v. Threatt, 212 Miss. 555 , 54 So. 2d 907 (1951).

In the instant case, there was no denial that such notice was mailed. The oral testimony of mailing was corroborated by the post office receipt. It was agreed that mailing should constitute proof of notice. To say that the mere testimony of the addressee that he did not receive the notice created a permissible inference that the letter was never mailed, would require us to disregard not only the explanatory testimony of the insurer’s clerk, but the unimpeached, uncontradicted, written official acknowledgment of the post office that it received this letter for transmission by mail to the addressee at his correct address. Any inference of non-mailing under a record of this type is too remote and of insufficient probative value to make a jury issue on whether the notice was actually mailed. Cherokee Ins. Co. v. Hardin, 202 Tenn. 110 , 302 S.W. 2d 817 (1957).

Further permitting* an inference of nonmailing from a mere denial of receipt, where the evidence of mailing is of the weight indicated, would be little different from a rule that, even under the provisions of clause 16, nonreceipt of the notice defeated the cancellation, and this would be contrary to the terms of the contract. *593 Our reading of the authorities elsewhere convinces us this decision is in accord with the better reasoned cases, which appear to represent a majority view. See Risjord, Construction of Terms of Liability Insurance with Specific Reference to the Cancellation Condition, 38 Tex. L. Rev. 198 (1959).

Suggestions of error overruled.

Gillespie, McElroy, Brady, and Patterson, JJ., concur.