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a benefit certificate could be brought or maintained more than eighteen months after the member's death.

In Behlmer v. Grand Lodge, A. O. U. W. (1909) 109 Minn. 305, 26 L.R.A. (N.S.) 305, 123 N. W. 1071, supra, where the assured left home July 17, 1901, and was never thereafter heard from, and his wife, the beneficiary named in the benefit certificate, paid the assessments till July 28, 1902, after which no assessments were paid, and where from all the circumstances the jury were justified in finding that the assured died prior to the 29th of July, 1902, the court held that an action to recover on the certificate commenced on the 12th of October, 1908, proof of death having been tendered on July 20, 1908, was not barred by the six-years Statute of Limitation, as in this case, where there was no positive evidence, and death could only be established with the aid of the legal presumption after the lapse of seven years, reasonable time to present such evidence after it accrued was necessary in order to make the certificate of any value to the beneficiary. The certificate provided that proofs should be furnished by the beneficiary before the lodge would be in any way liable, and that "no action or proceeding to recover upon the beneficiary's certificate shall be commenced until proofs of death have been furnished and passed upon." The court said: "We believe the proper construction of this class of contracts to be that a cause of action does not arise until proofs of death are furnished; that the time for furnishing the same is not limited to six years from the time of death, but shall be made within a reasonable time after death, according to the circumstances of each particular case; and it is our opinion that the fair and reasonable meaning of the contract is that the parties intended that the beneficiary should have the benefit of the evidence of death arising from the disappearance of the insured for the period of seven years, other evidence of death being in itself insufficient; that respondent did not waive this right by assuming that the insured

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was dead, and in stopping payments; but that she tendered the proofs and commenced the action within a reasonable time after the evidence accrued." O'Brien, J., dissenting, said: "The plaintiff deliberately elected, in July, 1902, to act upon the assumption that her husband was dead. She might have elected to maintain the certificate in force, until the presumption of death arose under the statute. The defendant had no voice in the matter. Having concluded to act upon the theory of his death, it then became the plaintiff's duty to furnish, within a reasonable time, proof of death. She failed to do so for more than six years, the statutory limitations for an action upon the policy. In my judgment a reasonable time for the performance of this act could be no longer, as a matter of law, than the statutory period for bringing suit after the cause of action had accrued."

In New York L. Ins. Co. v. Brame (1917) 112 Miss. 828, L.R.A.1918B, 86, 73 So. 806, supra, the court held that the Statute of Limitations did not begin to run against a cause of action for the amount due on a life insurance policy, in case of the disappearance of the insured, until the expiration of the seven-year period required for presumption of death and the final rejection of claim, if the beneficiary did not demand a final refusal to accept the proofs offered at time of disappearance, although the jury found that the death occurred at that time. It appears in this case that the plaintiff continued to pay premiums until the expiration of the seven-year period; but the plaintiff alleged and the jury found that the insured died on the date of his disappearance, and the plaintiff asked that the judgment include premiums paid after that date, The court distinguishes the case from those where the fact and time of death are established by the circumstances without the aid of the presumption. The court said: "In a case of this kind it is necessarily uncertain whether or not the insured is dead. It is, therefore, 'impossible for the beneficiary to make out proper or satisfactory proofs of death until the

expiration of the seven years, unless there are such facts and circumstances surrounding the disappearance as would strongly point to the insured having met his death at that time. To this class of cases belong those above referred to, where the facts indicated that the insured had been drowned or had been killed in a battle or in a storm. In cases like the one at bar, where both the insurance company and the beneficiary were uncertain as to the fact of the death, it would be harsh, inequitable, and unjust to hold that the Statute of Limitations was applicable. The very wording of the policy of insurance, as above set out, gives to the beneficiary a reasonable time within which to make out proofs of death; and in the case at bar, a reasonable time, and the only time, in fact, at which she ever was able to make out these proofs, was when she was able to take advantage of the presumption of death arising at the end of seven years."

Where an insurance policy required that any action thereon should be brought within six months from the time of the death of the assured, an action brought within six months after the expiration of of the seven-year period, when the presumption of death arose, was not barred. O'Hara v. Metropolitan L. Ins. Co. (1920) 73 Pa. Super. Ct. 434, supra. So far as the report shows, the plaintiff merely alleged the fact of death without attempt to allege or establish death at any particular time within the sevenyear period.

Where it was impossible to establish the death of the assured until after the expiration of the seven-year period of unexplained absence creating the presumption of death under the statute, a cause of action on the policy did not accrue till then, notwithstanding the trial court found that the assured died within the first month after his family ceased to hear of or from him, and before the forfeiture of the policy, and notwithstanding a by-law of the society provided that no action could be maintained on a policy unless suit be commenced within two years from the date of

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In Sovereign Camp, W. W. v. Piper (1920) · Tex. Civ. App. —, 222 S. W. 649, supra, holding that a cause of action on the policy did not accrue until the expiration of seven years from the disappearance of the insured, and that necessarily limitation could not begin until that time, the court found from the circumstances that the insured died before the forfeiture of the policy and within the seven-year period.

In Brotherhood of Locomotive Firemen & Engineers v. Nash (1924) 144 Md. 623, 125 Atl. 441, the court held that where the presumption of death upon seven years' absence was relied on by the beneficiary, an action on the policy was prematurely brought, where only about five years had elapsed at the time of the institution of the suit, although seven years had passed by the time of the trial of the case.

In Duffield v. Mutual L. Ins. Co. (1914) 32 Ont. L. Rep. 299, 20 D. L. R. 467, the case was controlled by an express statutory provision to the effect that, "where death is presumed from the person on whose life the insurance is effected not having been heard of for seven years, any action or proceeding may be commenced within one year and six months from the expiration of such period of seven years, but not afterwards." The ac

tion was held to have been brought within that time, the controversy apparently being as to the starting point from which to compute the seven-year period. The opinion said that, on the expiration of that period, the plaintiff became entitled to his insurance money, and the defendants, who plead the Statute of Limitations, must show that the death occurred more than one year and six months before the writ issued.

In the reported case (WARNER V. MODERN WOODMEN, ante, 87) the

court held that a delay of four years after the expiration of the seven-year period from the disappearance of the insured, before presenting proofs of loss and commencing action on the policy, was unreasonable as a matter of law, and barred a right to recover on the policy. According to the opinion, while the premise of the plaintiff's argument was that the running of the Statute of Limitation was suspended, her contention apparently was not that she had the full period of limitations computed from the expiration of the seven-year period, but that she had a reasonable time after the expiration of that period, in which to bring her action, and the court, assuming the point for the purposes of the case, considers the question on that footing, the decision against plaintiff being placed on the ground that the action had not been brought within a reasonable time. The logical conclusion from the premise that the cause of action does not arise until the expiration of the sevenyear period, or that the running of the statute is suspended during that period, would seem to be that the plaintiff has the full limitation period computed from the expiration of the seven-year period, dispensing with any question as to reasonableness of the time; and this seems to be the view of the cases cited in the annotation which were decided in favor of plaintiff, unless, as in the Duffield v. Mutual L. Ins. Co. (Ont.) supra, the statute, by an express provision, fixes the period after the expiration of the seven years within which the action must be brought.

In Bonslett v. New York L. Ins. Co. (1916) Mo., 190 S. W. 870, the policy provided that the right of action thereon did not accrue until proofs of death were submitted and approved. Action was brought on the policy within the statutory period after the refusal of the company to pay, but not within the statutory period after the service of proofs of death (which was about two years after insured's disappearance), and the date upon which the jury found the insured to have died (which was three months after the date of his disappearance). The court held that the Statute of Limitations

did not start running till the refusal of the company to pay, and that the fact that the beneficiary could have treated the company's delay in paying as a refusal and have brought suit made no difference.

Although a benefit certificate provided that no action could be maintained thereon unless brought within eighteen months from the date of the death of the member, it was held in Bennett v. Modern Woodmen (1921) 52 Cal. App. 581, 199 Pac. 343, that, where the insured disappeared in 1906 and was never thereafter heard from, and the insurer continued to demand, and the beneficiary continued to pay, assessments for ten years after the disappearance of assured, the society contending that by virtue of a by-law it was not liable until the expiration of assured's expectancy of life, an action brought on the certificate in 1917 after the beneficiary had sought independent legal advice and learned of her legal rights was not barred by the limitation in the certificate or by the four-year limitation of the statute.

And, where the presumption of the death of the assured from seven years' absence arose in 1909, but the beneficiary continued to pay premiums on the certificate until 1918, when the orphans' court decreed the presumption of assured's death and directed the appointment of an administrator of his estate, and the insurer accepted said premiums, the court held in Roblin v. Supreme Tent, K. M. (1920) 269 Pa. 139, 112 Atl. 70, where suit was brought on the certificate in about one year after the orphans' court decree, that as the insurer had treated the insured as alive until that decree by accepting the premiums, it could not on trial contend otherwise.

And, in White v. Brotherhood of Locomotive F. E. (1918) 167 Wis. 323, L.R.A.1918D, 1185, 167 N. W. 457, the court held that the Statute of Limitations did not begin to run against a claim to recover assessments paid after the disappearance of the holder of a mutual benefit certificate, to keep the certificate alive, while the parties recognized the contract as an existing

one, even though the time for presuming death had elapsed.

In Harrison v. Masonic Mut. Ben. Soc. (1898) 59 Kan. 29, 51 Pac. 893, where the plaintiffs contended that it was impossible for them to furnish proofs of the death of insured, who disappeared in 1883, until aided by the presumption arising from his unexplained absence for seven years, and that this was a sufficient excuse for the delay in presenting their proof, but also distinctly averred that the insured came to his death in 1883, that fact being essential to their case, since otherwise the policy became void by reason of nonpayment of assessments, the court, in deciding against the plaintiffs, said that the plaintiffs must file their proof within a reasonable time, and that a reasonable time could not exceed the period within which an action would have been barred by the Statute of Limitations in a case where no such preliminary step would be necessary, and that, "even allowing to plaintiffs five years after the time they aver James Harrison came to his death to make proofs of loss, they should have been furnished to the defendant in 1889. They were not furnished for more than five years thereafter. It certainly cannot be said that proofs furnished in July, 1894, were within a reasonable time. If the plaintiffs' cause of action should be held not to have accrued until that time, there would be a most unreasonable extension of the Statute of Limitations, for a suit might then be commenced at any time before July, 1899."

And, in Kauz v. Great Council, I. O. R. M. (1883) 13 Mo. App. 341, where an insured in a benevolent corporation disappeared in 1874 under circumstances warranting the conclusion that he was drowned on the date of his disappearance, and no further dues were paid to the corporation, the court held that an action brought by the beneficiary in 1881 was barred by the fiveyear Statute of Limitations. The court said: "If Kauz disappeared on July 7, 1874, and his death is to be presumed from the sole fact of his not having been heard of for seven years, then the

presumption is that he died on July 6, 1881. . In that case, not having

paid his dues for seven years, it does not appear how he could recover, in the face of the provision of the constitution of defendant. If, on the other hand, he was drowned on July 7, 1874, as the trial court clearly found, and as the trier of the fact was warranted in finding on the evidence, . then the Statute of Limitations was a bar to plaintiff's recovery."

An amendment to the by-laws of a fraternal beneficiary association, materially reducing the time within which actions may be brought upon beneficiary certificates theretofore issued, is unreasonable, and will not be enforced as against the holders of such certificates. Eklund v. Supreme Council, R. A. (1922) 152 Minn. 20, 187 N. W. 826. In the instant case, where the jury were justified in finding that the death of the insured took place within four years after his immediate family last heard from him, and the beneficiary had paid the assessments till the expiration of the four years, the insurer could not amend a by-law providing that actions on death benefits should be brought within three years "after the right of action accrued," so as to provide that actions should be brought within three years "from the date of such death," so as to apply to certificates issued before the amendment, and the beneficiary, in the instant case had the right to defer bringing her action until seven years had elapsed, as the certificate in question was issued to her husband before the above-mentioned amendment was made.

So, also, in Roblin v. Supreme Tent, K. M. (1920) 269 Pa. 139, 112 Atl. 70, where the presumption of assured's death arose in 1909, a by-law enacted by the insurer in 1911, providing that no action at law or in equity should be brought or maintained on any claim arising out of any life benefit certificate unless such action was brought within fifteen calendar months from the death of the member to whom such certificate was issued, did not apply so as to bar an action begun on the policy in 1918, as said by-law would deprive

the beneficiary of a right which vested at the expiration of the seven years. The court said: "A party to a contract cannot escape a fixed liability by enacting a by-law.. Neither

can it be applied here, as to do so would materially change the contract. Aside from that, the stipulation is that the member shall comply with amended by-laws, not that the beneficiary shall do so after his death, and such stipulations are construed strictly and in favor of the assured." (As to validity of by-law of mutual benefit association preventing recovery upon a presumption of death from seven years' absence, see annotation in 17 A.L.R. 418.)

In Martin V. Modern Woodmen (1911) 158 Mo. App. 468, 139 S. W. 231, where the beneficiary of a benefit certificate relied upon the common-law presumption of seven years' absence to establish the death of the insured, and alleged his death on or about a date very nearly corresponding to the ex

piration of the seven-year period, and the insurer, by its general attorney, after the expiration of the seven-year period, knowing that the beneficiary's time for bringing suit was passing, insisted upon more and more information regarding the disappearance of the assured, and postponed final decision from time to time and up to and beyond the expiration of one year from the expiration of the seven-year period, the court held that the insurer waived the provision in the benefit certificate stipulating that no action should be maintained unless brought within one year after the death of the insured.

In Roblin v. Supreme Tent, K. M. (Pa.) supra, the contention of the insurer that the action was barred by the Statute of Limitations, as the presumption of death arose in 1909 and the action was not commenced until 1918, was overruled, because the contract was issued under the corporate seal of the insurer. R. P. D.

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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.

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[See note on this question beginning on page 103.] Appeal, § 442 criminal law sumption as to prejudice from visit to jury room.

2. An unsolicited visit by the trial judge in a criminal case to the jury room within an hour after the case had been submitted to the jury, and his telling them, in the absence of accused and his counsel, that disagreement on the question of guilt presents a different situation from disagreement as to penalty, in that no juror should subscribe to a verdict which does not ex

press his conscientious opinion, and that the case requires the court to keep the jury together, cannot be presumed to have been nonprejudicial to accused so as to prevent reversal of a conviction.

[See 16 R. C. L. 299; 3 R. C. L. Supp. 559.] Appeal § 442 violation of constitutional rights prejudice.

3. Violation by the trial judge of the constitutional rights of accused in the trial of a criminal case is prima

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