# Employers Mutual Casualty Co. v. Nosser > Mississippi Supreme Court · May 25, 1964 · 250 Miss. 542 URL: https://www.frixlaw.com/law-library/cases/9686256 ## Case - **Full name:** Employers Mutual Casualty Company v. Nosser - **Court:** Mississippi Supreme Court - **Decided:** May 25, 1964 - **Citations:** 250 Miss. 542; 164 So. 2d 426; 1964 Miss. LEXIS 479 - **Precedential status:** Published - **Opinion:** Dissent by Lee - **Judges:** Tom, Ethridge, Lee, Kyle, Rodgers, Gillespie, McElroy, Brady, Patterson, Jones - **Cited by:** 43 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9686256 ## Opinion text Lee, C. J., Dissenting: Lack of time prevented as complete research as I would have liked to disclose in the dissent against the majority opinion in this case. At the outset I cited the Wigmore rule on Evidence, Section 2519, Vol. 9, 3rd ed., and our three Mississippi cases, namely, Young v. Westphalen & Co., 111 Miss. 765 , 72 So. 193 ; McCreary v. Stevens, 156 Miss. 330 , 126 So. 4 ; and Threatt v. Threatt, 212 Miss. 555 , 54 So. 2d 907 . In the Mississippi cases, this Court committed itself to what has become known as the Wigmore Rule, which, simply stated, is: A letter properly addressed, with postage prepaid, if mailed, is presumed to be delivered to the addressee; but, if such properly addressed envelope is not received by the addressee, it is presumed that it was not mailed. Consequently, where the evidence for the insurance company is to the effect that the cancellation of a policy, enclosed in an envelope and properly addressed, postage prepaid, is mailed to the policyholder, but the evidence for the policyholder is to the effect that the envelope, containing the cancellation, was not received by him, it is for the jury or trier of fact to say whether the notice was in fact mailed and the policy therefore cancelled. In addition to the above named authorities, I cited Allied American Mutual Fire Ins. Co. v. Paige, Municipal Court of Appeals for District of Columbia, 143 A. 2d 508 ; White v. Dixie Fire Ins. Co., 36 S. E. 2d 923 , a Supreme Court of North Carolina case; Verechia *594 v. DeSiato (American Mutual Life Ins. Co., Garnishee), 45 A. 2d 8 , a Supreme Court of Pennsylvania case; Keeling v. Travelers Ins. Co., Hartford, Conn., 67 P. 2d 944 , and Midwestern Ins. Co. v. Cathey, 262 P. 434 , Supreme Court of Oklahoma cases; Jensen v. Traders & General Ins. Co., 296 P. 2d 434 , D.C.A. California; Keller v. Provident Life & Accident Ins. Co., 49 S. E. 2d 577 , a Supreme Court of South Carolina case; and Matlock v. Citizens National Bank, 250 P. 648 , a Supreme Court of Idaho case. The principal in those cases was the same as here under consideration. The cancellation provision was either identical or practically so with the provision in the present case. Besides, factually, it may be said that they were the same kind of cases as the one now being considered. All of the above authorities, in my opinion, uphold the rule which I have been seeking to maintain. An excellent amicus curiae brief has been filed on behalf of the appellee on suggestion of error. In addition to the cases heretofore cited, our attention has been called also to Jensen v. Traders & General Ins. Co., 141 Cal. App. 162 , 296 P. 2d 434 ; Ireland v. Manufacturers & Merchants Indemnity Co., 298 S. W. 2d 529 , a Missouri case; Griffin v. General Accident, Fire & Life Assur. Co., 116 N. E. 2d 41 , and Grimes v. State Auto Mut. Ins. Co., 118 N. E. 2d 841 , Ohio cases; and Allstate Ins. Co. v. Buck, 100 S. E. 2d 142 , a Georgia case. These latter cases followed the Wigmore Rule. Adding these to those, previously cited, gives an aggregate of eleven cases. On the other hand, a critical analysis of the citations in the majority opinion, especially 64 A. L. R. 2d 1000-1002, in my opinion, strips the rule adopted in the majority opinion, down to only five states, to-wit: Service Fire Ins. Co. of New York v. Markey, 83 So. 2d 855 , a Florida case; Boyle v. Inter Insurance Exchange of Chicago Motor Club, 82 N. E. 2d 179 , an Illinois Appeal *595 case; Womack v. Fenton, 100 A. 2d 690 , a New Jersey case; Cherokee Ins. Co. v. Hardin, 302 S. W. 2d 817 , a Tennessee case; Aetna Ins. Co. v. Aviritt, 199 S. W. 2d 662 , and Anchor Casualty Co. v. Crisp, 346 S. W. 2d 364 , Texas cases. More than that, the editorial comment in 64 A.L.R. 2d at page 986, frankly says: ‘ ‘ Cases dealing with questions of evidence such as whether or not the notice has been mailed by the insurer or has been received by the insured or whether or not a presumption of the receipt of notice arises from the mailing thereof and whether stick presumption may be rebutted by testimony that the notice was not received, are not toithin the scope of this annotation.” (Emphasis supplied.) As I gather from the cases, drawn from twenty-four states, listed at pages 1000-1002 of 64 A. L. R. 2d, supra, except for the five states cited in the majority opinion, supra, the question involved in this controversy did not even appear in the other cases. The response of the majority is that there was no denial of the mailing. How, pray tell me was Nosser to deny the mailing other than by his sworn testimony that it was not delivered because, if it had been mailed, it would have been received by him! He was not present, of course, when the alleged mailing occurred. Besides, the postoffice receipt was for “a piece of ordinary mail” and not for an envelope, containing the cancellation of this insurance policy. In other words, the majority opinion construes the provisions of this policy to mean that an employee of an insurance company can become witness, judge, jury, and executioner. Thus the statement of a witness for the insurance company becomes the end of the law — that voice is a “thus saith the law”. I do not see how a policyholder, with such a provision as the one in the policy, considered by the Court, can feel secure that his insurance is in force and effect *596 unless lie has the company to verify to him every ten days that his is still effective. Such precaution would seem to be necessary because, if an employee will testify that notice of cancellation was mailed to the policyholder, in an envelope, at the address stated in the policy, with proper postage, and the employee will produce a postal receipt for a piece of ordinary mail, then, after ten days have elapsed since that time, the policyholder will have no protection even though he has never received any notice through the mail that his policy has been cancelled. As of today, unless the policyholders in this company have taken precaution similar to what I have said above, they can not be certain that they even have insurance. I do not think that our people should even be permitted, much less required, to live under such a onesided contract. This further dissent is recorded in the sincere hope that the legislature, at its next session, will give this question attention and correct a gross inequality, as I see it, in the field of liability insurance. Kyle, Rodgers and Jones, JJ., joins in this dissent. Rodgers, J., Dissenting: I concur in the dissenting opinion of Chief Justice Lee. It is obvious to me, from the authorities cited in the briefs and carefully documented in the opinions written in this case, that this Court had a choice as to whether or not.it would follow the rule that the failure to receive a letter raises a rebuttable presumption that the letter was not mailed, and presents a question for the determination of the jury; or whether we would follow the rule that testimony to the effect that the letter was mailed was sufficient to establish the fact of mailing notice as a matter of law. I feel that the latter rule is not to the best interest of the people of *597 Mississippi who purchase insurance in good faith and that the former rule is better since it leaves the question open for the determination of the jury. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9686256. Public record. Not legal advice.