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a benefit certificate could be brought was dead, and in stopping payments; or maintained more than eighteen but that she tendered the proofs and months after the member's death. commenced the action within a rea
In Behlmer v. Grand Lodge, A. 0. U. sonable time after the evidence acW. (1909) 109 Minn. 305, 26 L.R.A. crued." O'Brien, J., dissenting, said: (N.S.) 305, 123 N. W. 1071, supra, “The plaintiff deliberately elected, in where the assured left home July 17, July, 1902, to act upon the assumption 1901, and was never thereafter heard that her husband was dead. She from, and his wife, the beneficiary might have elected to maintain the named in the benefit certificate, paid certificate in force, until the presumpthe assessments till July 28, 1902, af- tion of death arosé under the statute. ter which no assessments were paid, The defendant had no voice in the and where from all the circumstances matter. Having concluded to act upon the jury were justified in finding that the theory of his death, it then bethe assured died prior to the 29th of came the plaintiff's duty to furnish, July, 1902, the court held that an action within a reasonable time, proof of to recover on the certificate commenced death. She failed to do so for more on the 12th of October, 1908, proof of than six years, the statutory limitadeath having been tendered on July 20, tions for an action upon the policy. 1908, was not barred by the six-years
In my judgment a reasonable time for Statute of Limitation, as in this case,
the performance of this act could be where there was no positive evidence, no longer, as a matter of law, than the and death could only be established
statutory period for bringing suit after with the aid of the legal presumption
the cause of action had accrued.” after the lapse of seven years, rea
In New York L. Ins. Co. v. Brame sonable time to present such evidence
(1917) 112 Miss. 828, L.R.A.1918B, 86, after it accrued was necessary in or
73 So. 806, supra, the court held that der to make the certificate of any value
the Statute of Limitations did not beto the beneficiary. The certificate
gin to run against a cause of action
for the amount due on a life insurance provided that proofs should be fur
policy, in case of the disappearance nished by the beneficiary before the
of the insured, until the expiration lodge would be in any way liable, and that "no action or proceeding to re
of the seven-year period required for
presumption of death and the final cover upon the beneficiary's certifi
rejection of claim, if the beneficiary cate shall be commenced
did not demand a final refusal to acuntil proofs of death have
cept the proofs offered at time of disbeen furnished and passed upon.”
appearance, although the jury found The court said: “We believe the prop
that the death occurred at that time. er construction of this class of con
It appears in this case that the plaintracts to be that a cause of action
tiff continued to pay premiums until does not arise until proofs of death
the expiration of the seven-year peare furnished; that the time for fur
riod; but the plaintiff alleged and the nishing the same is not limited to six years from the time of death, but
jury found that the insured died on shall be made within a reasonable time
the date of his disappearance, and the after death, according to the circum
plaintiff asked that the judgment instances of each particular case; and
clude premiums paid after that date, it is our opinion that the fair and The court distinguishes the case from reasonable meaning of the contract those where the fact and time of death is that the parties intended that the are established by the circumstances beneficiary should have the benefit of without the aid of the presumption. the evidence of death arising from the The court said: "In a case of this disappearance of the insured for the kind it is necessarily uncertain period of seven years, other evidence whether or not the insured is dead. of death being in itself insufficient; It is, therefore, 'impossible for the that respondent did not waive this beneficiary to make out proper or satright by assuming that the insured isfactory proofs of death until the
expiration of the seven years, unless death of the member; for it was imthere are such facts and circum- possible for the beneficiary to estabstances surrounding the disappear lish the death of the assured until the ance as would strongly point to the lapse of the seven-year period, and, as insured having met his death at that applied to such a situation, the bytime. To this class of cases belong
unreasonable. Supreme those above referred to, where the Lodge, K. P. v. Wilson (1918) Тех. . facts indicated that the insured had Civ. App. —, 204 S. W. 891, supra. been drowned or had been killed in a In Sovereign Camp, W. W. v. Piper battle or in a storm. In cases like (1920) Tex. Civ. App. —, 222 S. W. the one at bar, where both the insur- 649, supra, holding that a cause of ance company and the beneficiary were action on the policy did not accrue ununcertain as to the fact of the death, til the expiration of seven years from it would be harsh, inequitable, and the disappearance of the insured, and unjust to hold that the Statute of that necessarily limitation could not Limitations was applicable. The very begin until that time, the court found wording of the policy of insurance, as from the circumstances that the inabove set out, gives to the beneficiary sured died before the forfeiture of the a reasonable time within which to policy and within the seven-year pemake out proofs of death; and in the riod. case at bar, a reasonable time, and In Brotherhood of Locomotive Firethe only time, in fact, at which she men & Engineers v. Nash (1924) 144 ever was able to make out these proofs, Md. 623, 125 Atl. 441, the court held was when she was able to take ad- that where the presumption of death vantage of the presumption of death upon seven years' absence was relied arising at the end of seven years." on by the beneficiary, an action on the
Where an insurance policy required policy was prematurely brought, where that any action thereon should be only about five years had elapsed at brought within six months from the the time of the institution of the suit, time of the death of the assured, an although seven years had passed by action brought within six months after the time of the trial of the case. the expiration of the seven-year In Duffield v. Mutual L. Ins. Co. period, when the presumption of death (1914) 32 Ont. L. Rep. 299, 20 D. L. R. arose, was not barred. O'Hara v. 467, the case was controlled by an exMetropolitan L. Ins. Co. (1920) 73 Pa. press statutory provision to the efSuper. Ct. 434, supra.
So far as the fect that, "where death is presumed report shows, the plaintiff merely al- from the person on whose life the inleged the fact of death without at- surance is effected not having been tempt to allege or establish death at heard of for seven years, any action any particular time within the seven- or proceeding may be commenced withyear period.
in one year and six months from the Where it was impossible to estab- expiration of such period of seven lish the death of the assured until years, but not afterwards." The acafter the expiration of the seven-year tion was held to have been brought period of unexplained absence creat- within that time, the controversy aping the presumption of death under parently being as to the starting point the statute, a cause of action on the from which to compute the seven-year policy did not accrue till then, not- period. The opinion said that, on the withstanding the trial court found expiration of that period, the plaintiff that the assured died within the first became entitled to his insurance month after his family ceased to hear money, and the defendants, who plead of or from him, and before the for- the Statute of Limitations, must show feiture of the policy, and notwithstand- that the death occurred more than one ing a by-law of the society provided year and six months before the writ that no action could be maintained on issued. à policy unless suit be commenced In the reported case (WARNER V. within two years from the date of MODERN WOODMEN, ante, 87) the court held that a delay of four years did not start running till the refusal after the expiration of the seven-year of the company to pay, and that the period from the disappearance of the fact that the beneficiary could have insured, before presenting proofs of treated the company's delay in paying loss and commencing action on the as a refusal and have brought suit policy, was unreasonable as a matter made ng difference. of law, and barred a right to recover Although a benefit certificate proon the policy. According to the opin- vided that no action could be mainion, while the premise of the plaintiff's tained thereon unless brought within argument was that the running of the eighteen months from the date of the Statute of Limitation was suspended, death of the member, it was held in her contention apparently was not that Bennett v. Modern Woodmen (1921) she had the full period of limitations 52 Cal. App. 581, 199 Pac. 343, that, computed from the expiration of the where the insured disappeared in 1906 seven-year period, but that she had a and was never thereafter heard from, reasonable time after the expiration of and the insurer continued to demand, that period, in which to bring her ac- and the beneficiary continued to pay, tion, and the court, assuming the point assessments for ten years after the for the purposes of the case, considers disappearance of assured, the society the question on that footing, the deci- contending that by virtue of a by-law sion against plaintiff being placed on it was not liable until the expiration the ground that the action had not of assured's expectancy of life, an acbeen brought within a reasonable time. tion brought on the certificate in 1917 The logical conclusion from the prem- after the beneficiary had sought inise that the cause of action does not dependent legal advice and learned of arise until the expiration of the seven- her legal rights was not barred by the year period, or that the running of the limitation in the certificate or by the statute is suspended during that peri- four-year limitation of the statute. od, would seem to be that the plaintiff And, where the presumption of the has the full limitation period computed death of the assured from seven years' from the expiration of the seven-year absence arose in 1909, but the beneperiod, dispensing with any question ficiary continued to pay premiums on as to reasonableness of the time; and
the certificate until 1918, when the this seems to be the view of the cases
orphans' court decreed the presumpcited in the annotation which were de
tion of assured's death and directed cided in favor of plaintiff, unless, as
the appointment of an administrator in the Duffield v. Mutual L. Ins. Co.
of his estate, and the insurer accepted (Ont.) supra, the statute, by an ex
said premiums, the court held in Robpress provision, fixes the period after
lin v. Supreme Tent, K. M. (1920) 269 the expiration of the seven years with
Pa. 139, 112 Atl. 70, where suit was in which the action must be brought. In Bonslett v. New York L. Ins. Co.
brought on the certificate in about one (1916) - Mo. 190 S. W. 870, the
year after the orphans' court decree,
that as the insurer had treated the inpolicy provided that the right of action thereon did not accrue until proofs of
sured as alive until that decree by acdeath were submitted and approved. cepting the premiums, it could not on Action was brought on the policy with- trial contend otherwise. in the statutory period after the re- And, in White v. Brotherhood of fusal of the company to pay, but not Locomotive F. E. (1918) 167 Wis. 323, within the statutory period after the L.R.A.1918D, 1185, 167 N. W. 457, the service of proofs of death (which was court held that the Statute of Limitaabout two years after insured's dis- tions did not begin to run against a appearance), and the date upon which claim to recover assessments paid aftthe jury found the insured to have died er the disappearance of the holder of (which was three months after the a mutual benefit certificate, to keep the date of his disappearance). The court certificate alive, while the parties held that the Statute of Limitations recognized the contract as an existing ... then
one, even though the time for presum- presumption is that he died on July 6, ing death had elapsed.
1881. . . In that case, not having In Harrison v. Masonic Mut. Ben. paid his dues for seven years, it does Soc. (1898) 59 Kan. 29, 51 Pac. 893, not appear how he could recover, in where the plaintiffs contended that it the face of the provision of the constiwas impossible for them to furnish tution of defendant. If, on the other proofs of the death of insured, who hand, he was drowned on July 7, 1874, disappeared in 1883, until aided by the as the trial court clearly found, and presumption arising from his unex- as the trier of the fact was warranted plained absence for seven years, and in finding on the evidence, that this was a sufficient excuse for the Statute of Limitations was a bar to the delay in presenting their proof, plaintiff's recovery." but also distinctly averred that the in- An amendment to the by-laws of a sured came to his death in 1883, that fraternal beneficiary association, mafact being essential to their case, since terially reducing the time within otherwise the policy became void by which actions may be brought upon reason of nonpayment of assessments, beneficiary certificates theretofore isthe court, in deciding against the sued, is unreasonable, and will not be plaintiffs, said that the plaintiffs must enforced as against the holders of such file their proof within a reasonable certificates. Eklund v. Supreme Countime, and that a reasonable time could cil, R. A. (1922) 152 Minn. 20, 187 N. not exceed the period within which an W. 826. In the instant case, where the action would have been barred by the jury were justified in finding that the Statute of Limitations in a case where death of the insured took place within no such preliminary step would be four years after his immediate family necessary, and that, “even allowing to last heard from him, and the benefiplaintiffs five years after the time they ciary had paid the assessments till the aver James Harrison came to his death expiration of the four years, the into make proofs of loss, they should surer could not amend a by-law prohave been furnished to the defendant viding that actions on death benefits in 1889. They were not furnished for should be brought within three years more than five years thereafter. It "after the right of action accrued,” so certainly cannot be said that proofs as to provide that actions should be furnished in July, 1894, were within a brought within three years "from the reasonable time. If the plaintiffs' date of such death,” so as to apply to cause of action should be held not to certificates issued before the amendhave accrued until that time, there ment, and the beneficiary, in the inwould be a most unreasonable exten
stant case had the right to defer bringsion of the Statute of Limitations, for
ing her action until seven years had
elapsed, as the certificate in question a suit might then be commenced at any
was issued to her husband before time before July, 1899.” And, in Kauz v. Great Council, I. O.
the above-mentioned amendment was
made. R. M. (1883) 13 Mo. App. 341, where
So, also, in Roblin v. Supreme Tent, an insured in a benevolent corporation K. M. (1920) 269 Pa. 139, 112 Atl. 70, disappeared in 1874 under circum
where the presumption of assured's stances warranting the conclusion that
death arose in 1909, a by-law enacted he was drowned on the date of his dis
by the insurer in 1911, providing that appearance, and no further dues were
no action at law or in equity should be paid to the corporation, the court held
brought or maintained on any claim that an action brought by the benefi- arising out of any life benefit certificiary in 1881 was barred by the five- cate unless such action was brought year Statute of Limitations. The court within fifteen calendar months from said: "If Kauz disappeared on July the death of the member to whom such 7, 1874, and his death is to be presumed certificate was issued, did not apply so from the sole fact of his not having as to bar an action begun on the policy been heard of for seven years, then the in 1918, as said by-law would deprive
the beneficiary of a right which
a right which piration of the seven-year period, and vested at the expiration of the seven the insurer, by its general attorney, years. The court said: “A party to a after the expiration of the seven-year contract cannot escape a fixed liability period, knowing that the beneficiary's by enacting a by-law.
Neither time for bringing suit was passing, incan it be applied here, as to do so sisted upon more and more informawould materially change the contract. tion regarding the disappearance of Aside from that, the stipulation is the assured, and postponed final decithat the member shall comply with sion from time to time and up to and amended by-laws, not that the benefi- beyond the expiration of one year from ciary shall do so after his death, and the expiration of the seven-year pesuch stipulations are construed strict- riod, the court held that the insurer ly and in favor of the assured.” (As waived the provision in the benefit to validity of by-law of mutual benefit certificate stipulating that no action association preventing recovery upon
should be maintained unless brought a presumption of death from seven within one year after the death of the years' absence, see annotation in 17 insured. A.L.R. 418.)
In Roblin v. Supreme Tent, K. M. In Martin Modern Woodmen (Pa.) supra, the contention of the in(1911) 158 Mo. App. 468, 139 S. W. 231, surer that the action was barred by the where the beneficiary of a benefit cer- Statute of Limitations, as the presumptificate relied upon the common-law tion of death arose in 1909 and the acpresumption of seven years' absence to tion was not commenced until 1918, establish the death of the insured, and was overruled, because the contract alleged his death on or about a date was issued under the corporate seal of very nearly corresponding to the ex- the insurer.
R. P. D.
(200 Ky. 509, 255 S. W. 125.) Trial, § 46 — criminal law — effect of judge's visit to jury room.
1. An accused is deprived of his constitutional right to be heard by himself and counsel by the judge's visit to the jury room while the jury are deliberating in regard to their verdict, and advising them of their duties in the absence of accused and his counsel.
[See note on this question beginning on page 103.] Appeal, $ 442 criminal law
pre- press his conscientious opinion, and sumption as to prejudice from visit that the case requires the court to keep to jury room.
the jury together, cannot be presumed 2. An unsolicited visit by the trial to have been nonprejudicial to accused judge in a criminal case to the jury so as to prevent reversal of a conroom within an hour after the case had
viction. been submitted to the jury, and his
[See 16 R. C. L. 299; 3 R. C. L. Supp. telling them, in the absence of accused
559.] and his counsel, that disagreement on Appeal § 442 violation of constituthe question of guilt presents a differ- tional rights - prejudice. ent situation from disagreement as to 3. Violation by the trial judge of penalty, in that no juror should sub- the constitutional rights of accused scribe to a verdict which does not ex- in the trial of a criminal case is prima