Rohloff v. Aid Ass'n for Lutherans in Wis.

• Decision Date: 04 December 1906
• Citation: 130 Wis. 61,109 N.W. 989
• Parties: ROHLOFF v. AID ASS'N FOR LUTHERANS IN WISCONSIN AND OTHER STATES.
• Court: Wisconsin Supreme Court

130 Wis. 61

109 N.W. 989

ROHLOFF

v.AID ASS'N FOR LUTHERANS IN WISCONSIN AND OTHER STATES.

Supreme Court of Wisconsin.

Dec. 4, 1906.

Appeal from Circuit Court, Winnebago County; George W. Burnell, Judge.

Action by Hulda Rohloff against the Aid Association for Lutherans in Wisconsin and Other States. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This action was commenced August 17, 1905, upon a benefit certificate issued by the defendant upon the life of the plaintiff's husband, William Rohloff, and payable to her August 15, 1902, which certificate, among other things, contained the following provisions: “This is to certify that in pursuance of the articles of incorporation and by-laws of this association, and in consideration of the statements contained in his application No. 392 and the benefits and conditions on the back hereof, all of which are hereby made a part of this contract, Mr. William Rohloff * * * has been admitted to membership in this association.” And from the back thereof this: “In case of the death of the member by suicide, whether sane or insane, voluntary or involuntary, at the time, the entire and only liability under this contract shall be the amount of benefit assessments paid to the association by the member, as shown by the records of this association, and the same shall be received by the beneficiary in full settlement of this contract.” It is conceded that the policy was in full force at the time of the death of the insured. The complaint alleges, in effect, that the said William Rohloff died January 15, 1905; that the plaintiff was his wife; that she had fully performed all the conditions of said policy by her and her husband to be performed; that notice and proof of death were given to the defendant January 21, 1905, and subsequently errors therein were corrected by amendments; that $2,149.14 and interest thereon from April 21, 1905, was due and payable on the policy; and that the defendant refused to pay the same. The defendant answered by way of admissions, denials, and counter allegations, setting forth the by-laws of the defendant and the provisions of the policy above quoted, and, after admitting the death of the insured, alleges that he “came to his death and died by his own act and by suicide, as the plaintiff then and ever since has well known, * * * as she stated in the proof of loss and death by her submitted to this defendant and in her complaint referred to,” in which she stated on oath that “said William Rohloff was killed on January 15, 1905, by shooting himself in the heart, according to the verdict of coroner's jury,” and also alleges the tender back to the plaintiff of the amount of benefit assessments paid thereon of $49.14, but which the plaintiff refused to accept. Before a jury was called the defendant, on presentation to the court of the articles of incorporation, the proofs of death as mentioned, the subsequent amendment of the same, and the provisions of the policy above quoted, moved to abate the action, whereupon the court ruled: “The court is of the opinion that the plea in abatement, if there is one, must be overruled.” Thereupon a jury was impaneled and the cause was tried, and at the close of the trial the jury returned a special verdict to the effect that “the death of the said William Rohloff” was not “caused by suicide, whether sane or insane.” Thereupon the court ordered judgment in accordance with the prayer of the complaint. From the judgment entered thereon accordingly, with costs, the defendant brings this appeal.Frank W. Harriman (John Bottensek, of counsel), for appellant.

Pierce & Lehr, for respondent.

CASSODAY, C. J. (after stating the facts).

Error is assigned because the court refused to abate the action. This is based upon the ground that the amendment to the proofs of death was received by the defendant less than 90 days prior to the commencement of the action. The original proofs of death had, however, been received by the defendant nearly 7 months prior to the commencement of the action. Certainly every amendment to the proofs of death should not operate as an extension of the time of payment or the commencement of the action. The original proofs of death contained a statement in a physician's affidavit in answer to a question as to the direct cause of death: “Gunshot wound in heart. Case of suicide”--and also a statement of the plaintiff that the insured “was killed on January 15, 1905, by shooting himself in the heart, according to verdict of coroner's jury.” The circumstances under which the body was found preclude any personal knowledge on the part of the plaintiff as to the manner in which he came to his death. The amendment was to the effect that the plaintiff made such original proofs without fully “comprehending or understanding the meaning and import of the same,” and that the statement above quoted was based upon rumors and current talk among citizens. It has been held in New York and sanctioned by text-writers that a second proof of loss does not nullify a prior proof returned by the company, but that such proofs are to be taken together, as supplying each other's defects, and if, combined, they answer the requirements of the policy, the law is satisfied. Brown v. Hartford Fire Ins. Co., 52 Hun, 260, 5 N. Y. Supp. 230; 2 May on Ins. (4th Ed.) § 460. See, also, 19 A. & E. E. L. (2d Ed.) 103.

2. Counsel also contends that by reason of such proofs of loss the court should have granted the defendant's motion for a nonsuit. Such proofs, at most, were mere prima facie evidence of the facts therein stated. This court held long ago, in an opinion by Chief Justice Ryan, that, “while the Code allows defenses in abatement and bar to be pleaded in one answer, it does not permit the same defense to be pleaded in abatement and in bar, and where that is done the plea in abatement is a nullity.” Hooker v. Green, 50 Wis. 271, 6 N. W. 816. Upon the authority of that case it was subsequently held by this court that, “while a right to plead in abatement may be waived by pleading to the merits, yet it does not follow that a plea to the merits is to be deemed waived or withdrawn by subsequently filing a plea in abatement. Dilatory pleas are not favored in the law, whereas pleas in bar and to the merits are favored.” Baker v. State, 88 Wis. 140, 148, 59 N. W. 570. See Crowns v. Forest Land Co., 99 Wis. 105, 74 N. W. 546. There was no error in refusing to grant a nonsuit, nor to dismiss the action.

3. Error is assigned because the court refused to set aside the verdict and grant a new trial. The claim is that there is no evidence in the record to support the verdict. That verdict is to the effect that the death of the deceased was not caused by suicide, whether sane or insane. That was the only question submitted to the jury. As frankly stated in the brief of counsel for the defendant: “The defense set up was suicide of the insured.” That is the only defense on the merits alleged in the answer. The question whether the deceased came to his death in some other way than by suicide was not in issue and not determined. The finding is, in effect that the deceased did not intentionally or designedly destroy his own life. The evidence as to the circumstances under which the body was found are undisputed. The death occurred on Sunday, January 15, 1905. The deceased was the street commissioner of the city of Appleton. On the evening before the death he was at his office in the basement of the city hall and gave directions to those under him for the work of the then coming week. In the forenoon of the fatal day, at his home and in the presence of his wife and children, he was engaged in cleaning a revolver. On objection being made, he put the revolver in its usual place in his wife's dresser. He was financial secretary of St. Paul's Lutheran Church, and as such was to be present at a meeting of the trustees of the church at 2 o'clock that afternoon. Shortly after the noon hour he left his home with the church book, telling his family that he was going to a church meeting that afternoon. After he left, his wife saw nothing of the revolver, but knew it was gone. She saw nothing more of him that day. When he failed to attend the church meeting, the witness Dittman was requested to look him up. He went to a saloon, and, not finding him there, telephoned his wife as to his whereabouts, and was...