I am not in accord with the opinion of Mr. Justice McALLISTER. The facts have been accurately stated.
In Cuttle v. Concordia Mutual Fire Ins. Co., 290 Mich. 117, we said:
"The issue was whether the notice was mailed. If it was duly mailed, such fact, under the bylaw, was *Page 521 conclusive evidence of its receipt, and nonreceipt could only be considered upon the issue of the mailing and the instruction should have so made limitation."
As I view it, the only question involved in this case is, Was the 1937 notice mailed? Upon this question there is positive and affirmative testimony as to the mailing. There is no testimony to contradict the testimony of Henry J. Nehls, the agent, and that of Silas Troxall as to the mailing of the notice:
In Christiansen v. Hilber, 282 Mich. 403, we said, quoting the following from Christiansen, v. Hilber, mercial Car Co.,219 Mich. 557:
" 'It would have been an idle ceremony, under the evidence, to have submitted the case to the jury, for the direct, positive and uncontradicted evidence presented an issue of law for the court and not an issue of fact for the jury.' "
In Klat v. Chrysler Corp., 285 Mich. 241, we said, quoting the following from Christiansen v. Hilber, 282 Mich. 403:
" 'It is the general rule that where unimpeached witnesses testify distinctly and positively to a fact, and are uncontradicted, their testimony should be credited, and have the effect of overcoming a mere presumption." Elwood v. WesternUnion Telegraph Co., 45 N.Y. 549 (6 Am. Rep. 140); Barr v.Guelph Patent Cask Co., 129 Mich. 278.
" ' "When all the evidence upon the point, on both sides, tends clearly to prove, and, if true, does prove a fact, and there is none to cast a doubt upon it, such fact may, and generally should be, assumed as proved; and the jury should be told that there is no evidence from which they can find against the fact as proved." Druse v. Wheeler, 26 Mich. 189, 195.' "
In the case at bar, the testimony introduced by defendant on the issue in question was not contradicted, nor was it inherently improbable. Under *Page 522 such circumstances, it was the duty of the court to instruct the jury that there was no evidence from which it could find against the proven fact.
The judgment should be reversed without a new trial. Costs to defendant.
WIEST, J., concurred with SHARPE, J.