162 Wis. 259 | Wis. | 1916
Tbe plaintiff contends that tbe circuit court erred in submitting to tbe jury tbe inquiry wbetber or not tbe insured, Arthur E. Page, was dead at tbe time of tbe trial. In ruling upon plaintiff’s motion for a directed verdict in her favor tbe court declared that in bis opinion tbe evidence, in tbe light of tbe decision in tbe Miller Case (Miller v. Sovereign Camp W. O. W. 140 Wis. 505, 122 N. W. 1126), would justify a direction of a verdict in her favor, but that be deemed it appropriate to take a verdict to lay tbe foundation for a modification by tbis court of tbe rule declared in tbe decisions of tbis court as regards tbe necessity of making diligent search and inquiry to establish tbe presumptive death of a person wbo has been absent from bis borne and place of residence for seven years without being beard from. Tbe earlier authorities of tbis court on tbis question and tbe different rules which obtain in other jurisdictions on tbis subject were re-examined on tbe appeal to tbis court of tbe Miller Case, and it was determined not to modify tbe rule on tbis subject as established by tbe decisions of tbis court. No considerations have been suggested that have led us to conclude that tbe rule declared in tbe Miller Case should be modified.
An examination of tbe evidence in tbe instant case satisfies us that it permits only of tbe inference that plaintiff’s husband left bis borne and place of residence in tbe early part of March, 1905, and that neither tbe plaintiff nor any
,, Upon the facts shown the court correctly held that defendant’s refusal, through its officers, to furnish plaintiff blanks for proof of death upon her request and notice of Rage’s presumed death by reason of his not having been heard from for over seven years,- constituted a waiver of the defendant’s requirement that proof of death shall be made on blanks to be furnished by defendant before action can be brought to recover on the benefit certificate. The evidence shows that a proper request for such blanks was made and was refused. It appears that the company’s officers denied liability on the certificate under plaintiff’s claim that it had matured by force of the presumption that Rage was dead, in the light of all the facts and circumstances showing his disappearance and the absence of any intelligence or tidings that he was alive. Upon this state of the record the plaintiff is entitled to recover the amount due on the certificate.
By the Gourt. — The judgment appealed from is reversed, and the cause is remanded to the circuit court with direction to set aside the verdict and award the plaintiff judgment for the recovery of the amount due on the benefit certificate.