Hilliard v. Wis. Life Ins. Co.

• Decision Date: 20 October 1908
• Parties: HILLIARD v. WISCONSIN LIFE INS. CO.
• Court: Wisconsin Supreme Court

137 Wis. 208

117 N.W. 999

HILLIARD

v.WISCONSIN LIFE INS. CO.

Supreme Court of Wisconsin.

Oct. 20, 1908.

Syllabus by the Judge.

The existence of a personal relation or a state of things being once established by proof, the presumption is that such relation or state of things continues to exist as before until the contrary is shown or until a different presumption is raised from the nature of the subject in question.

The foregoing rule applies to an established condition as to life and matrimonial relations.

The rule that an objection that a suit was not brought by the real party in interest must be raised by demurrer or special pleading of the facts does not apply when the plaintiff has no interest, legal or equitable, in the claim or right to represent it.

The rule that an objection that the action was prematurely brought must be raised by demurrer or answer specially pleading the facts applies only where the cause of action was complete before suit, but there was nonperformance of some condition of its being remediable, not to where there was no such cause at the beginning. In the latter situation the objection may be raised, as in any other case of there being insufficient facts pleaded or established to make out a cause of action.

The fact that no cause of action existed at the time of the commencement of the suit may be established under a general denial.

Any fact which the plaintiff must prove to establish his cause of action may be disproved under a general denial.

In case of a policy of life insurance providing that it shall have a surrender value upon specified conditions, a cause of action to recover such value does not exist in advance of such performance.

A policy of life insurance on the life of a married man, unqualifiedly payable at maturity to his wife, is governed by the statute of 1898, § 2347; but one so made payable, but conditioned that in a specified event it shall have a surrender value in which the beneficiary shall have no interest, is not as to such feature controlled by such statute.

In case of a judgment being improperly rendered because the cause of action alleged did not exist when the action was commenced, and the infirmity can be cured, the result of the trial should not be disturbed except in so far as to prevent any substantial prejudice to the adverse party.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by C. M. Hilliard against the Wisconsin Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The claim in the case was this: April 28, 1897, plaintiff obtained from the Natural Premium Mutual Life Insurance Company, a corporation duly authorized in the matter, an annual twenty payment life insurance policy, securing to his wife, Julia Hilliard, in case of her surviving him, $1,000, or in the event of her not so surviving and his decease leaving children such sum to such children, otherwise the same to his personal representative. It provided for a payment of $162.09, as a surrender value, at the end of ten years in case of the policy being kept alive till that time, contingent upon its surrender for cancellation and 60 days' notice in writing being given to the company. December 5, 1906, plaintiff gave defendant such notice, but it failed and refused and on further notice and demand still refuses to pay said sum or any part thereof. He tendered defendant the policy before the commencement of this action and has kept such tender good. By contract with the company named in the policy and subsequent assent of the assured, prior to 1899, all the liabilities under such policy devolved upon the defendant. There was an appropriate prayer for judgment. The defendant answered by a general denial and pleaded the terms of the contract. The giving of notice as alleged was admitted. There were further allegations presenting the question as to whether the surrender value was not less than that claimed by about one-half.

The cause was tried by the court without a jury. The policy of insurance contained this provision: “It is understood, that in the event of the surrender of this policy, the beneficiary hereunder shall have no claim whatever upon the said company.”

The court found as matters of fact the issuance of the policy, the creation of liability and surrender value at the end of the tenth year, as alleged in the complaint, and further found that the defendant company was solvent and had in hand funds available for and applicable to payment of such value, and ordered judgment in plaintiff's favor therefor with interest as prayed for in the complaint. Judgment was accordingly rendered.A. R. Bushnell, for appellant.

Charles N. Brown, for respondent.

MARSHALL, J. (after stating the facts as above).

The grounds upon which judgment was rendered in favor of respondent are untenable, as the following will clearly indicate.

It was assumed by the trial court that the policy was the sole and separate property of respondent's wife, when issued, but since there was no affirmative proof that she was alive at the time of the trial or if so that she was still respondent's wife, the original situation was immaterial to his right to recover. Manifestly, those were not matters for appellant to maintain by evidence in the absence of proof to the contrary. By principles too familiar to require more than a mere statement thereof, the continuance of life and status as regards Julia Hilliard, the beneficiary named in the policy, is presumed till the presumption is rebutted by evidence. The case in this regard falls within the rule in State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 587:

“When the existence of a person, a personal relation, or a state of things, is once established by proof, the law presumes that the person, relation, or state of things continues to exist as before, until the contrary is shown, or until a different presumption is raised, from the nature of the subject in question.”

It was error to hold, as was done, that, assuming the cause of action, if there were one, belonged to respondent's wife, the proceedings in his name to enforce it was a mere failure to follow the command of the Code requiring all actions to be prosecuted in the name of the real party in interest. The purpose of the requirement was to change the rule of the common law under which it was necessary, in some cases, to prosecute in the name of one though the avails of the litigation would belong to another, as for instance, the assignee of a nonnegotiable promissory note, though in equity the absolute owner thereof, in case of necessity to judicially enforce it at law, was compelled to do so in the name of the assignor. The change has no reference to a situation where a person who does not act in a representative capacity nor have any legal or equitable title to the cause of action; a mere pretended owner, sues to enforce the cause of action. In such a situation the infirmity of plaintiff's position goes to the very foundation of the claim of right. If it is put in issue by a denial the burden is upon him to establish it. The fact showing such infirmity is not matter in abatement nor new matter required in order to be available, to be pleaded specially. The general rule under the Code is that any matter of fact alleged in the complaint which the plaintiff must establish to make out his cause of action, may be disproved under a general denial. Timp v. Dockham, 32 Wis. 146;Wheeler v. Billings, 38 N. Y. 263;Greenfield v. Mass. Mutual Life Ins. Co., 47 N. Y. 430;Weaver v. Barden, 49 N. Y. 286; 1 Ency. P. & P. 817. That rule manifestly includes proof that the alleged cause of action never existed. Mack v. Burt, 5 Hun (N. Y.) 28; Goddard v. Fulton, 21 Cal. 430. It is thus tersely stated in Greenfield v. Mass. Mut. Life Ins. Co., supra:

“Under a...