Hansen v. Cent.-Verein Der Gegenseitigen Unterstuetzungs Gesellschafr Germania
| Decision Date | 05 February 1929 |
| Parties | HANSEN v. CENTRAL-VEREIN DER GEGENSEITIGEN UNTERSTUETZUNGS GESELLSCHAFT GERMANIA. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Milwaukee County; R. S. Cowie, Judge. Reversed.
Action by Auguste Hansen, begun June 29, 1926, against the Central-Verein Der Gegenseitigen Unterstuetzungs Gesellschaft Germania, to recover on a certificate of insurance on the life of the plaintiff's husband, who had not been heard of for more than seven years. From a judgment for the plaintiff, entered February 20, 1928, the defendant appealed.
The plaintiff's husband drank to excess. He had trouble with his wife and children. He finally left home and went to room elsewhere in the city of Milwaukee. Plaintiff then had him arrested for abandonment. He was adjudged guilty and placed on probation in May, 1918. Shortly thereafter he disappeared, and has not been seen or heard from since that time, so far as disclosed by the proof, although the police, the probation officers, and the members of his family have made efforts to find him.
The case was tried before a jury. At the close of the trial, the court directed the jury to find a verdict for the plaintiff, which recited that the jury, “by direction of the court, finds for the plaintiff.” No exception was taken to the order of the court directing the verdict.Walter H. Bender, of Milwaukee, for appellant.
Rubin, Zabel & Rouiller, of Milwaukee, for respondent.
[1] 1. The case presents the question whether this court can review the action of the trial court in directing the verdict in the absence of an exception to such direction. Section 274.34 provides: “Upon an appeal from a judgment, * * * the supreme court may review any intermediate order or determination of the court below, which involves the merits and necessarily affects the judgment, appearing upon the record transmitted or returned from the circuit court, whether the same were excepted to or not.”
The verdict “involves the merits and necessarily affects the judgment,” and it appears “upon the record transmitted.” This direction by the court may therefore be reviewed without an exception. Rosenthal v. Vernon, 79 Wis. 245, 250, 251, 48 N. W. 485. The cases which hold that an exception is essential to review an order directing a verdict are all cases in which it did not appear upon the face of the verdict that it was rendered by direction of the court, with the single exception of Holum v. Chicago, M. & St. P. R. Co., 80 Wis. 299, 303, 50 N. W. 99. In that case the court based its decision upon the fact that no exception was taken to the order directing the verdict, and apparently overlooked the fact that the verdict upon its face recited that it was rendered by direction of the court. The statute at that time contained the same provision as that quoted above from section 274.34 of the Statutes. It is apparent that there was no thought that the court was overruling Rosenthal v. Vernon, because that case was not mentioned, although it was decided in the same year and by the same judges who participated in the decision of Rosenthal v. Vernon.
[2][3] 2. The case also presents the question whether the presumption of death arises from seven years' absence unheard of, where the person whose continuance of life is in question left his home under such circumstances that he would not naturally be expected to communicate with his family. The presumption of death from long-continued absence is of ancient origin. But the rule which gives rise to the presumption after seven years' absence is modern, comparatively speaking. The period of seven years was adopted, because that was the time fixed by acts of the English Parliament relating to bigamy and the termination of life estates and leases.
The text-writers took a large part in the formulation of the rule, basing their text upon the early English cases, which had permitted jurors to find death in cases involving bigamy and leases or estates for life from the fact that a person had been unheard of, after seven years' absence. In later cases the courts and...
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Westphal v. Kansas City Life Ins. Co.
...without tidings where, ordinarily, the absent individual would have communicated if he had been alive, Hansen v. Central Verein, etc., 198 Wis. 140, 223 N.W. 571, 64 A.L.R. 1284 and Egger v. Northwestern Mutual Life Ins. Co., 203 Wis. 329, 234 N.W. 328, and when the presumption arises, a qu......
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Westphal v. Kansas City Life Ins. Co.
...seven year period. These cases are Ewing v. Metropolitan Life Insurance Co., 191 Wis. 299, 210 N.W. 819; Hansen v. Central Verein, etc., 198 Wis. 140, 223 N.W. 571, 64 A.L.R. 1284; Egger v. Northwestern Mutual Life Insurance Co., 203 Wis. 329, 234 N.W. 328. These cases stand for the proposi......
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...believed that absence alone for seven years sufficed. Shortly after the decision last mentioned was announced Hansen v. Central Verein, 198 Wis. 140, 223 N.W. 571, 64 A.L.R. 1284, was decided which held that to presume death, where the disappearance is explained, is a challenge to common se......
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