120 Wis. 358 | Wis. | 1904
Tbe insurance policy or benefit certificate in tbe present case contained a provision tbat no action should be brought or maintained thereon unless it wore commenced within one year from tbe date of tbe death of tbe insured. It was admitted by tbe plaintiffs in making their case tbat tbe insured died August 8, 1900, and tbat tbis action was commenced February 10, 1902; hence tbe plaintiffs should have been nonsuited, or a verdict for tbe defendant directed, unless there were some facts in evidence tending to show tbat tbe requirement of tbis provision bad been waived or otherwise obviated. It is claimed by tbe plaintiffs tbat tbis requirement was not operative here, first, because tbe evidence shows tbat tbe insurance company has waived its right to insist thereon; second, because tbe evidence shows
“If any person entitled to bring an action die before tbe ■expiration of the time limited, for the commencement thereof and tbe cause of action survive, an action may be commenced by bis representatives after tbe expiration of tbat time and within one year from bis death.”
It forms a part of tbe chapter on legal limitations of actions. After providing in numerous sections tbe specific limitations upon various forms of action, tbe chapter proceeds to specify certain exceptions to tbe running of tbe limitations. Sec. 4231 provides, in substance, tbat if tbe defendant be out of tbe state when the action accrues, or depart ■from and reside out of tbe state after it accrues, tbe time of 'bis absence shall not be deemed a part of the time limited.
Our conclusion is that a nonsuit should have been granted, •or, in default of a nonsuit, that a verdict for the defendant should have been directed at the close of the evidence.
There are some minor questions presented, which perhaps deserve attention, especially in case of another trial. An inquest was held upon the body of Bunge, and a verdict rendered that he came to his death by “taking carbolic acid.” The defendant offered the verdict in evidence, and it was rejected, and this ruling is claimed to be error. Conceding that the record was admissible, which may be a matter of
Again, the defendant offered in evidence a part of the proof of death made by Emma Brickman, in which she stated that the deceased “swallowed carbolic acid,” and the evidence was excluded. This was plainly error, because, though the proof was not made by any of the plaintiffs, still it was made on behalf of all the beneficiaries, and the rights of all were dependent upon the fact that these proofs had been made; hence any statements required to be made therein were admissible against all, the fact being that the other beneficiaries had made m> separate and independent proofs, and relied solely on Emma’s proofs; but here, again, there was no prejudice, as the fact was not in dispute.
The form of the question submitted to the jury is criti-cised, and while, perhaps, there is no ground for holding it materially defective, it must be said that it was not well framed. The sole material question was whether the death of the insured was caused by suicide, sane or insane; and the question should have been framed, if not in these words, at least in such words as to clearly put this exact issue before the jury.
The plaintiff Fred Bunge is a minor, and it does not appear that any guardian ad litem was ever appointed for him. Objection is made in this court for the first time that he cannot maintain the action, on account of his being an infant when the same was commenced. The objection is too late. It is an objection that the plaintiff has not legal capacity to sue, and this objection must be taken by demurrer or answer, or it is waived. Sec. 2654, Stats. 1898.
Another very vital question is presented by the briefs and
By the Gourt — Judgment reversed, and action remanded for á new trial.