Opinion
April 6, 1942.
1. — Appeal and Error. When trial court sustained motion and granted a new trial, but did not specify of record the ground or grounds on which said new trial was granted, the appellate court must affirm such order if the action of the trial court can be sustained upon any ground set forth in the motion.
2. — Appeal and Error. The trial court has the right to grant one new trial to each party on the ground alone that the verdict is against the weight of the evidence, and the appellate court will not interfere unless it conclusively appears that no verdict in favor of the defendant could ever be allowed to stand, and that the trial court has therefore unjustly or arbitrarily exercised its discretion in granting the new trial.
3. — Appeal and Error. Where at the close of all the evidence plaintiff did not request an instruction directing a verdict for it on the ground that the evidence did make a submissible issue of fact as to whether notice had been given, but joined with the defendant in submitting that issue to the jury, plaintiff is not in position to urge such contention for the first time in appellate court.
4. — Appeal and Error. Appellate court will not review a case on a theory different from that on which it was tried and submitted in the trial court.
5. — Appeal and Error. Since the plaintiff in the trial court, by instructions, joined with the defendant in submitting to the jury the question of defendant's liability to the plaintiff on the policy, it is not in position to urge in appellate court that the trial court abused its discretion in sustaining the motion for new trial on the ground that the verdict was against the weight of the evidence.
6. — New Trial. Where appellate court concluded that trial court sustained motion for new trial on ground that verdict was against the weight of the evidence and that such action was not an abuse of its discretion, it will not be necessary to discuss other grounds in the motion.
7. — Appeal and Error. Motion to strike supplemental abstract of record because matters therein contained were not preserved in bill of exceptions on file in trial court, was sustained, since the Court of Appeals cannot make up and approve a bill of exceptions.
Appeal from the Circuit Court of Carroll County. — Hon. James S. Rooney, Judge.
AFFIRMED.
S.D. Frampton and Charles M. Miller for plaintiff and appellant.
(1) The case was one for a jury. Notice under the mortgage clause was a condition precedent to invalidation of clause, the burden of proof of which was on the defendant. Wisman v. Hazel Dell Farmers Mut. Fire Light. Ins. Co., 230 Mo. App. 489, 94 S.W.2d 908, 911; Prudential Ins. Co. v. German Mut. Fire Ins. Ass'n, 231 Mo. App. 699, 105 S.W.2d 1001; Adams v. Farmers Mutual Fire Ins. Co. of Randolph Co., 115 Mo. App. 21, 90 S.W. 747, 749; Williams v. N.E. Mutual Ins. Ass'n, 51 S.W.2d 142; Commercial N. F. Ins. Co. v. King, 108 Ark. 130, 156 S.W. 445; Farmers M. T. Ins. Co. v. Harris, 50 Ga. App. 75, 177 S.E. 65; Travelers Ins. Co. v. F. M., 211 Iowa 1050, 233 N.W. 153. (2) Defendant having requested no written demurrer or written peremptory instruction at the close of plaintiff's evidence, or at the close of all the evidence, and having joined in requesting instructions to the jury on the merits, admits the case is one for a jury and is bound by the verdict of the jury on questions of fact. Thompson v. Bank, 226 Mo. App. 246, 42 S.W.2d 56, 58; Lintz v. Ins. Co., 226 Mo. App. 1087, 49 S.W.2d 675, 677; Dusky v. Kansas City, 227 Mo. App. 849, 58 S.W.2d 768. (3) The ruling on instructions and the admissibility of evidence, are questions of law about which there is no discretion. Loftus v. Railroad (en banc), 220 Mo. 470, 119 S.W. 942, 945. (4) When the trial court assigns of record, no reason for sustaining a motion for new trial, and the motion contains, among other grounds, the ground that it is against the weight of the evidence, an appellate court will when permissible presume on appeal, it was on the ground of the weight of the evidence, and cannot be set aside unless arbitrarily exercised by the trial court. Riche v. City of St. Joseph, 326 Mo. 691, 694, 695, 32 S.W.2d 578, 579. (5) The defendant failed to show by competent evidence, that it had strictly complied with the condition precedent, as provided in the mortgage clause. See cases cited under Point (1). Great American Indemnity Co. v. Doetheridge (Okla. 1936), 52 P.2d 827; Hodges v. Planters Mut. Fire Ins. Co., 37 Ga. App. 203, 139 S.E. 362; Fritz v. Penn. Fire Ins. Co. (N.J.), 88 A. 1065; Fid. and C. Co. v. Riley (Md.), 178 A. 250; Swearingen v. Wabash, 221 Mo. 664, 120 S.W. 773, 778; Phillip v. Travelers Ins. Co., 288 Mo. 175, 231 S.W. 947; Cardinale v. Kemp, 309 Mo. 241, 274 S.W. 437, 448. These last three cases hold that a presumption cannot be predicted upon a presumption. See also Miller v. Hancock Mut. Life Ins. Co., 155 S.W.2d 324, 328. (6) Presumption or inference cannot be based upon presumption or inference. Swearingen v. Wabash, 221 Mo. 664, 120 S.W. 773, 778; Phillip v. Travelers Ins. Co., 288 Mo. 175, 231 S.W. 947; Cardinale v. Kemp, 309 Mo. 241, 274 S.W. 437, 448. (7) The order sustaining the motion for new trial should be set aside. The action of the court was arbitrary, defendant not being entitled under the law, to sustain its defense under its evidence. There was no error against defendant as to any of the alleged grounds urged by it in its motion for new trial. Riche v. City of St. Joseph, 326 Mo. 691, 694, 695, 32 S.W.2d 578, 579; Thompson v. Bank, 226 Mo. App. 246, 42 S.W.2d 56, 58; Lintz v. Ins. Co., 226 Mo. App. 1087, 49 S.W.2d 675, 677; Dusky v. Kansas City, 227 Mo. App. 849, 58 S.W.2d 768; Wisman v. Hazel Dell Farm Mut. Fire Light. Ins. Co., 230 Mo. App. 489, 94 S.W.2d 908, 911. (8) The mortgage clause not providing how notice should be given, evidence of mailing was not sufficient, especially where there was evidence it was it not received by the mortgagee. Hodges v. Planters Mut. Fire Ins. Co., 37 Ga. App. 203, 139 S.E. 362; Great American Indemnity Co. v. Deotheridge (Okla. 1936), 52 P.2d 827; Fritz v. Penn. Fire Ins. Co. (N.J.), 88 A. 1065; Am. Auto Ins. Co. v. Watts (Ala.), 67 So. 758; Fid. Cas. Co. v. Riley (Md.), 178 A. 250. (9) The verdict could not be against the weight of the evidence, when the burden of proof was upon the defendant to strictly prove the notice of invalidation was received by the mortgagee. Hodges v. Planters Mut. Fire Ins. Co., 37 Ga. App. 203, 139 S.E. 362; Great American Indemnity Co. v. Deotheridge (Okla. 1936), 52 P.2d 827; Fritz v. Penn. Fire Ins. Co. (N.J.), 88 A. 1065; Am. Auto. Ins. Co. v. Watts (Ala.), 67 So. 758; Fid. Cas. Co. v. Riley (Md.), 178 A. 250.
Jno. D. Taylor for respondent.
(1) The action of the trial court in granting a new trial will be affirmed if the record discloses that any ground set forth in the motion for new trial be sufficient. Riche v. City of St. Joseph, 32 S.W.2d 578-9, and cases cited. (2) This case was submitted to the jury upon the theory that the mailing of a notice of assessment due, as provided in Subsections 3 and 4 of sec. III of the by-laws, was sufficient notice. Having adopted that theory below appellant cannot change his position here. (3) The motion for new trial should have been sustained for any one or all of the following reasons: (a) Plaintiffs alleged that the fire occurred while the policy of insurance was in force. The burden of proof rests upon the party asserting an affirmative issue. Ranny v. Lewis, 182 Mo. App. 58; Gardner v. Gas Co., 154 Mo. App. 666, 679; Stephens v. Fire Association, 139 Mo. App. 369-374-5; Cudahy Packing Co. v. Railway Co., 196 Mo. App. 531-2. This rule is not changed although the averment calls for negative proof. McGinness v. Railroad, 195 Mo. App. 390. (b) Defendant, by direct and positive evidence, proved that notice of nonpayment of the assessment was given. The mailing of a letter, properly addressed and stamped, makes a prima facie case of delivery in due course of mail. McFarland v. Accident Ass'n, 124 Mo. 204; Clark v. Cole County, 272 Mo. 135; Bank v. Latimer, 64 Mo. App. 321; Covell v. W.U.T. Co., 164 Mo. App. 630; Sills v. Burge, 141 Mo. App. 148; Scheidel Western X-Ray Co., v. Bacon, 201 S.W. 916; Hawes v. American Central Ins. Co., 7 S.W.2d 479. The presumption of the receipt of a notice by mail was not overcome by the evidence that the addressee reported no record of such receipt. Covell v. Western Union, 164 Mo. App. 630. The credit manager's denial of receipt is not sufficient as some other agent of plaintiff might have received the letter. Scheidel Western X-Ray Co. v. Bacon, 201 S.W. 916. Defendant's demurrer should have been sustained. Marshall Livery Co. v. McKelvy, 55 Mo. App. 240; Taylor v. W.U.T. Co., 181 Mo. App. 300. The case of Miller v. Ins. Co., 155 S.W.2d 328, cited by appellant, is not in point. (c) Plaintiffs' Instruction No. II is a plain comment on the evidence. (d) Having pleaded "no notice" in the petition, and having proceeded in the trial on the theory that the burden was on plaintiffs, thereby assuming the burden and failing therein, it was misleading and confusing to the jury to give Instruction No. III. (e) All of the evidence of Goodloe as to the notice was incompetent, and should have been stricken out, as requested by defendant. The evidence of Mrs. Cook called for on plaintiffs' cross-examination was excluded improperly. (4) The notice as required by the policy was sufficient. It was shown in the trial that both the form and contents were regarded by plaintiffs as fully sufficient.
This is a suit on a fire insurance policy, issued on March 26, 1935, by defendant to one C.D. McGraw and wife, insuring their residence property against loss or damage by fire in the sum of $1000. The Home Owners' Loan Corporation was the owner and mortgagee of the first deed of trust on said property securing the payment of a note for $679.79, with accrued interest. At the time of the issuance of the policy there was attached and made a part of the policy a standard or union mortgage clause, which provided that in case of loss or damage to the building insured under the policy, payment of the loss or damage would be made to the Home Owners' Loan Corporation as mortgagee, "as its interest may appear at the date of the loss, subject to all conditions of said policy; except that as to the interest of aforesaid mortgagee herein, this policy shall not be invalidated by nonpayment of any premium, premium note, assessment or dues against said policy, unless ten days prior written notice shall be given said mortgagee by this insurance company of such nonpayment."
On October 23, 1937, the dwelling house so insured was totally destroyed by fire, but the defendant refused to pay the policy, claiming it had lapsed because of the failure to pay dues on certain dates. Suit was filed and trial had before a jury, resulting in a verdict for plaintiff, Home Owners' Loan Corporation, in the sum of $822.73, but the court directed the jury to return a verdict against the plaintiffs C.D. McGraw and Amanda E. McGraw, his wife, which was done, and they did not file motion for new trial. Defendant filed a motion for new trial and, in due time, the court sustained such motion without specifying of record the ground or grounds on which the new trial was granted, as directed by Section 1169, Revised Statutes Missouri, 1939. The motion assigned ten grounds, one of which was, "because the verdict and finding of the jury was against the evidence and the weight of the evidence." This was the first trial of the case, and the applicable rule is that when the trial court sustained the motion and granted a new trial, but did not specify of record the ground or grounds on which said new trial was granted, the appellate court must affirm such order if the action of the trial court can be sustained upon any ground set forth in the motion; and since the trial court has the right to grant one new trial to each party on the ground alone that the verdict is against the weight of the evidence, the appellate court will presume that the trial court sustained the motion on that ground and will not interfere unless it conclusively appears that no verdict in favor of the defendant could ever be allowed to stand, and that the trial court has therefore unjustly or arbitrarily exercised its discretion in granting the new trial. [Riche v. City of St. Joseph, 326 Mo. 691, 32 S.W.2d 578.]
In its brief the plaintiff says that "the sole contested issue in this case, as tried in the trial court, was whether or not ten days prior written notice had been given to the mortgagee of nonpayment of a defaulted assessment, by the insurer. This was an affirmative defense, made in defendant's answer as to why it was not liable on the policy of fire insurance to the mortgagee, upon which the burden of proof was on the defendant." From reading the record we conclude that was the issue tried in the lower court and it was the issue submitted to the jury by the instructions offered on behalf of the plaintiff and defendant.
In its opening statement to the court and jury the plaintiff stated: "The principal issue in this lawsuit . . . is whether or not the Home Owners' Loan Corporation received the notice that the policy was not in force, that the policy had lapsed because of nonpayment of premiums. It is the plaintiff's position that it received no notice, and that the insurance company, under their contract and amendments thereto, were bound to furnish us with that notice. . . ." In its case in chief the plaintiff introduced evidence that it had not received, through the mail or by any other means, notice of any defalcation in the payment of premiums by the McGraws. At the conclusion of plaintiff's evidence the defendant produced evidence that notice of defalcation had been mailed to the plaintiff within a day or two after the defalcation. At the close of all the evidence the plaintiff did not request the trial court to give an instruction directing a verdict for it on the ground that the evidence failed to make a submissible issue of fact as to whether such notice had been given, but on the contrary joined with the defendant in submitting that issue of fact to the jury, and now, for the first time, contends that under the pleadings and the evidence no such submissible issue was made; or stated another way that the evidence in the record conclusively shows that a verdict in favor of the defendant could not be allowed to stand. We hold that the plaintiff is not now in position to urge such contention for the first time in this court. This conclusion would be the same even though plaintiff had requested a directed verdict and such request was denied by the court. We will not review the case on a theory different from that on which it was tried and submitted in the trial court. [White v. Klentling, 345 Mo. 526, 134 S.W.2d 39.]
As we understand the rule announced by the Supreme Court in the case of Riche v. City of St. Joseph, supra, when we have reached the conclusion that the trial court sustained the motion for new trial on the ground that the verdict was against the weight of the evidence, then we will not interfere with such order unless we can say that a verdict for the defendant "could never be allowed to stand and that the trial court has therefore unjustly or arbitrarily exercised its discretion in granting a new trial." Since the plaintiff in the trial court, by instructions, joined with the defendant in submitting to the jury the question of defendant's liability to the plaintiff on the policy, we do not believe it is now in a position to urge in this court that the trial court abused its discretion in sustaining the motion on the ground that the verdict was against the weight of the evidence. By logical reasoning such conclusion is supported by the following cases: Wissmann v. Pearline, 135 S.W.2d 1, l.c. 4; Fawkes v. National Refining Co. (Mo.), 108 S.W.2d 7, l.c. 11; Frost v. Jensen, 155 S.W.2d 553, l.c. 554.
Since we conclude that the trial court sustained the motion on the ground that the verdict was against the weight of the evidence and that such action was not an abuse of its discretion, it will not be necessary for us to discuss other grounds in the motion. Other questions which are urged in the briefs will not be discussed at this time because on a retrial the pleadings and the evidence and the course of the trial may not again present such issues.
Plaintiff has filed a motion to strike from our files defendant's supplemental abstract of the record, because the matters therein contained are not preserved in the bill of exceptions on file in the trial court. Defendant admits such matters are not in the bill of exceptions on file but states that it verily believes such matters were included therein when it approved the bill of exceptions. This court cannot make up and approve a bill of exception, that must be done by the trial court. Plaintiff's motion will be sustained. In arriving at our conclusion herein we have not considered the matters contained in the supplemental abstract.
It follows that the action of the trial court in sustaining the motion for new trial must be affirmed. It is so ordered. All concur.