#### Fey and others, Respondents, vs. The I. O. O. F. Mutual Life Insurance Society of Pennsylvania, Appellant.

*December 15, 1903*

February *2, 1904.*

*Life insurance: Benefit societies: Contract limitations of actions: Waiver: Evidence: Estoppel: Agent: Service of summons: ' Proofs of death: Harmless error: Special verdict: Framing questions: Infancy of plaintiff: Failure to appoint guardian*ad litem.

1. Where a benefit certificate, void in case of suicide, contained a. provision that no action should be brought or maintained thereon unless commenced within one year from the death of insured, and action was commenced more than one year thereafter, a nonsuit should he entered, or a verdict directed, unless there are facts in evidence tending to show that the contract provision was waived or otherwise obviated.

2. In such case, it appeared, among other things, that insured died' August 8, 1900, and proofs of death were duly furnished September 5, no objection thereto being made. November 28, 1900, the beneficiaries’ attorney wrote asking when payment might he expected. Receiving no reply, he wrote again February 16, 1901, and was informed on February 19 that the matter was in the hands of claim committee, that he would be notified, and, on April 16, following, the company’s secretary wrote the attorney that the claim was in the hands of the company’s general counsel, investigation having developed the fact that death was the result of *suicide,*and “so soon as I have heard from him will communicate with you,” followed by no further communication from the company. The action was commenced February 10, 1902. *Held,*that even if the letter of February 19, could be construed as a request, express or implied, to delay action, the letter of April 16 must be construed as putting an end to negotiation, and withdrawing any implied request for delay.

3. In such case, a letter dated November 28, 1900, from defendant to one who testified he was its local agent, considered, and *held*that even though the contents could be construed as a request for delay, yet the letter of April 16, to the attorney terminated the request, and hence the full contract year had' expired before action was brought.

*3594. In an action on a benefit certificate, issued by a foreign corporation, providing that action must be begun witbin one year after the death of tbe insured, it appeared, among other things, that the death occurred August 8, 1900, and that action was commenced February 10, 1902; that G., a witness called by plaintiffs, testified he was defendant’s agent up to February 16, 1902; that he collected and remitted dues and assessments as such agent; that he informed defendant of insured’s death, signing himself “local agent,” and that in response blanks were sent him and he made out the proofs of death. This evidence was introduced by plaintiffs to prove agency, and to justify subsequent introduction of G.’s declarations, as bind'ing on defendant, which were received in evidence. *Held:*

(1) That after successfully assuming G.’s agency and reap- , ing the advantage of it for one purpose/ plaintiffs could not abandon it, for another purpose.

(2) That G. was an agent for the service of process within the calls of subd. 9, sec. 2637, Stats. 1898.

(3) That evidence produced by defendant, in effect, that G. was not defendant’s agent, and that it never had any agents in' Wisconsin, did not excuse plaintiffs’ failure to bring the action within the year limited by the certificate.

5. Sec. 4234, Stats. 1898, extending for one year the limitation on commencement of an action, where the person entitled to bring the action dies before the term limited expires, applies to legal limitations, and does not affect limitations on bringing action provided by contract.

6. In an action on a benefit, certificate, void in case of suicide, the fact that death was caused by drinking carbolic acid was proven beyond dispute, the real issu'e being whether the taking was accidental. Defendant offered in evidence the verdict of the coroner’s jury that deceased came to his death by “taking carbolic acid.” *Held,*even though the verdict was admissible, which may be doubted, that its rejection was not prejudicial error.

7. In such case, while the exclusion of the proofs of death, containing the statement that deceased “swallowed carbolic acid” is error, it did not prejudice defendant because that fact was not in dispute.

8. In an action on a benefit certificate where one material issue was whether the death of the insured was caused by suicide; sane or insane, a. question of the special verdict “Did (deceased) come to his death as the result of an act voluntarily committed, with intent to produce death by his own hands?” *360considered, and *helll,*not well framed, though. not materially defective.

9. Where a plaintiff is a minor, objection that no guardian *ad litem*was ever appointed is too late when raised for the first time in the supreme court.. Such objection raises the question of plaintiff’s legal capacity to sue, and must be taken by demurrer or answer, or it is waived.

Appeal from a judgment of th© circuit court for Saule county: R. G. Siebeciceb, Circuit Judge.

*Reversad.*

This is an action upon a life insurance policy or benefit certificate originally issued by the Piqua Mutual Aid & Accident Association, a foreign corporation, insuring the life of Fred 0. Runge in the sum of $1,000, in favor of his wife. The evidence on the trial showed that the certificate was issued August 12, 1897, and that at that time Fred 0. Runge, the insured, was a laboring man residing at or near the village of Ablemans, Sauk county, and having a wife, Henrietta Runge, and four minor children, Emma, Frank, Willie, and *Fred;*that in October, 1899, Plenrietta having-died, the four children were duly made beneficiaries of the policy by request of the insured; that July 1, 1899, the Piqua Company consolidated with the Potomac Life Insurance Company, a West Virginia corporation, which assumed all the contracts of til© former company, including the certificate owned by Runge; that Runge died August 8, 1900, from the effects of taking carbolic acid, his assessments being all paid; that due proofs of death were served on the Potomac Company September 5, 1900, by Emma Runge, who was then married, and named Emma Brickman; that December 1, 1901, the Potomac Insurance Company consolidated with the defendant in this action, which is a Pennsylvania corporation, and which assumed all contracts and liabilities of the Potomac Company; that January 31, 1902, Emma Runge sold and assigned all her rights in the policy to the plaintiff, *Adolph Fey;*that Willie Rung© died July 6, 1901, and that the plaintiff *Fey*was duly appointed administrator of his *361estate; tbat tbe plaintiff *Frank Bunge*was of age when tbis action was brought, or attained bis majority soon afterwards, but tbe plaintiff *Fred Bunge*was still a minor; tbat tbis action was commenced by tbe service of summons February 10, 1902; tbat tbe amount realized by assessments, and wbicb was properly applicable on tbis policy, if anything was due thereon, was tbe sum of $930.

Tbe court submitted to the jury a single question, as follows :

“Did Fred Charles Bunge come to bis death as tbe result of an act which be voluntarily committed, with intent to produce death by bis own band ?”

This question was answered in tbe negative by tbe jury, and judgment for .the plaintiffs for tbe amount due upon tbe policy, with interest from November 5, 1900, was rendered, and tbe defendant appeals.

For tbe appellant there were briefs by *Bentley & Kelley,*and oral argument by *F. B. Bentley.*

For tbe respondents there was a brief by Orotophorst, *Beans &*Thomas, and oral argument by *B. A. Evans.*

WiNsnow, J.

Tbe insurance policy or benefit certificate in tbe present case contained a provision tbat no action should be brought or maintained thereon unless it wore commenced within one year from tbe date of tbe death of tbe insured. It was admitted by tbe plaintiffs in making their case tbat tbe insured died August 8, 1900, and tbat tbis action was commenced February 10, 1902; hence tbe plaintiffs should have been nonsuited, or a verdict for tbe defendant directed, unless there were some facts in evidence tending to show tbat tbe requirement of tbis provision bad been waived or otherwise obviated. It is claimed by tbe plaintiffs tbat tbis requirement was not operative here, first, because tbe evidence shows tbat tbe insurance company has waived its right to insist thereon; second, because tbe evidence shows *362tbat tbe insurance company bad no agent in tbis state upon whom service could be made; and, *third,*as to tbe interest of Willie Runge, at least, tbat by tbe provisions elf sec. 4234, Stats. 1898, tbe time for bringing tbe action was extended by reason of bis death, wbicb took place July 6, 1901. These contentions will be taken up in their order:

1. Tbis court has held, in accordance with authorities elsewhere, tbat if an insurance company, by its acts, induces tbe beneficiary to delay bringing suit on tbe policy, tbe time of such delay is not to be reckoned as a part of tbe time limited for tbe bringing of tbe action. *Killips v. Putman F. Ins. Co.*28 Wis. 472; *Black v. Winneshiek Ins. Co.*31 Wis. 74. In tbe first case above cited there was evidence showing tbat tbe general agent of tbe company wrote to tbe insured, stating tbat tbe proofs already furnished were defective, and promising to call and see tbe insured with reference to tbe* matter during tbe following month, and tbat tbe insured delayed furnishing additional proofs or commencing suit, relying on tbis promise, wbicb was never fulfilled; and it was* held tbat tbis was sufficient to go to tbe jury as proof of waiver. ■ In tbe *Black Gase*it was held tbat an agreement made between tbe insured and tbe insurance company, soon after a fire loss, providing tbat tbe insured would accept a certain sum in full payment, and tbat tbe company would pay tbat sum on or before a certain date, three months in tbe future, unless it should previously notify tbe insured tbat it would contest tbe loss, waived tbe limitation for tbe time during wbicb tbe agreement ran, no such notice 'having been given. It is manifest tbat the proof in tbe present case does. 1 not bring it within either of tbe above cases. Tbe evidence here shows tbat tbe proofs of death were duly furnished September 5, 1900, and no objection was ever made to them. November 28, 1900, Mr. Grotophorst wrote to tbe Potomac Company, stating that be was retained by tbe heirs of Runge, and asked when payment of tbe policy might be expected. Re*363ceiving no reply to this letter, he wrote again February 16,. 1901, stating that he had heard nothing from the company, and asking the company to report at once what they intended to do; that, in case of refusal to pay, he would take steps- to collect the amount due on the policy. To this letter the company replied February 19, 1901, by letter stating that “the matter is now before our claims committee and owing to the absence of our adjuster, we cannot, at the present moment give the full facts in regard to the same but you will be duly notified upon return of said adjuster to this office.” On April 16th following, the company’s secretary sent to Groto-phorst a letter stating that “the claim is in the hands of the company’s general counsel, investigation having developed the fact that death was the result of *suicide.*jSo soon as I have heard from him will communicate with you.” This was the last letter sent to Grotophorst. It appears further that the claim at about this time was in the hands of Mr. E. A. Jones, an attorney at Washington, D. 0., where tire home office of the Potomac company then was, and that on April 20, 1901, the secretary of the company wrote to him, 'stating that “all the papers in the Runge case have been sent to Gov. Hart, the company’s general counsel, to whom you are referred.” No further negotiations or letters between the company and either Grotophorst or Jones are shown. There is very little in this correspondence which could reasonably be construed as a request, either express or implied', to delay action; bixt, conceding that the letter of February 19th might be so construed, and that it was acted upon, still the letter of April 16th, stating that the cause of death was suicide, and that the papers had been placed in the hands of the company’s counsel, must certainly be construed, especially when received by an attorney at law, as quite definitely putting an end to negotiation, and withdrawing any implied request for delay. In this view of the matter, there was only two months’ delay on account of acts of the company; and, *364.as tbe action was delayed six months beyond tbe termination of tbe year, it is plain that, even if tbe two months be deducted, tbe action was still brought four months after tbe expiration of tbe year. There was another line of evidence, however, that was somewhat relied upon to' prove waiver. One Geisser was called as a witness, who testified that he was local agent at the village of Ablemans both of the Piqua Company and its successor, the Potomac Company, and he produced some correspondence with the Potomac Company in' 'reference to the claim. It appears that Geisser assisted in preparing and forwarding the proofs of death in September, 1900, and afterwards wrote several letters to the company concerning the claim, in which he signed his name as “local agent.” November 28, 1900, he received the first reply to his inquiries from the company; stating, in effect, that there was litigation pending against the old Piqua Association, but that they believed that all claims would soon be adjusted to the satisfaction of all, and that all claims would be listed according to date of approval, and paid in their turn. March 18, 1901, he received another letter from the company, stating that the Kunge claim would be taken up “the last of this month or the first of next for settlement.” Geisser also testified that he received a letter from the company in reply to one written by himself about eight months after Bunge’s death, in which they said they would settle the case soon, but this alleged letter could not be found.. Mr. Grotophorst testified, against objection and exception, that he had a conversation with Geisser about the last of February-or the first of March, 1901, in which Geisser told him that the matter would be settled shortly, within two weeks or two months, and that Geisser then showed him some letters from the company in which they stated.that the matter would be- adjusted. There is no testimony that Geisser acted in any degree as agent of the beneficiaries in this correspondence, or that they even knew of his action; but even conceding that the'letter of No-*365vernber 28, 1900, could be construed as a request for delay, still the letter of April 16th to 'Grotophorst would terminate-the request, and the delay occasioned, at the most, was less than five months, so that the full' year had expired before the bringing of the action.

2. It is claimed that the plaintiffs were excused from bringing the action within the year because the evidence shows that the Potomac Company had no agent in the state upon whom service could be made. This contention is based upon the testimony of one Bristow, the secretary of the Potomac Company, to the effect that Geisser was never agent of that company, and that it had no agents in Wisconsin. The argument is that the one-year limitation clause cannot apply if by its own act of omission the company makes it impossible for the policy holder to (commence an action upon the policy in the local courts, because, in such case, the company has prevented the commencement of the action by its-own act, and,- if the limitation were to be held effective, the-company would be taking advantage of its own wrong. There' is much reason in the argument, and it has been directly approved by the supreme court of Michigan. *Peoria M. & F. Ins. Co. v. Hall,*12 Mich. 202. It is not necessary to pass upon the question here. The plaintiffs are in no position to-make the contention that the Potomac Company had no agent in Wisconsin. They put upon the stand as a witness Mr. Geisser, before mentioned in this opinion, and proved directly by him that he was the local agent of the Piqua Company, the Potomac Company, and’ the defendant company during the whole time that they did business at Ablemans, and up to February 16, 1902; that he received and remitted dues and assessments as such agent; that he wrote numerous letters to the Potomac Company, signing them as “local agent” — among them being a letter notifying the company of Eunge’s death, and requesting that claim blanks be forwarded; that such blanks were at once forwarded to him; *366and that be made out tbe proofs of death. Not only is it apparent tbat this testimony was introduced for tbe purpose •of proving tbe fact of Geisser’s agency, in order to justify the subsequent introduction of Geisser’s statements to Groto-phorst, as binding on tbe company, but plaintiffs’ attorneys ■definitely stated to tbe court tbat such was tbe object of tbe testimony; and tbe statements made by Geisser to Groto-pborst were in fact afterwards received in evidence for tbat reason. After successfully assuming this position and reaping tbe advantage of it for one purpose, tbe plaintiffs cannot •abandon it for another purpose. If Geisser was enough of an agent to make bis declarations admissible against tbe company, be was enough of an agent for tbe purpose of service -of process, especially when subd. 9, sec. 2637, Stats. 1898, is considered, by tbe broad and sweeping terms of which it is provided tbat service upon a foreign insurance company may be made upon any one who aids or assists the company in transacting any business.

3. Nor do we think tbat tbe provisions of sec. 4234, Stats. 1898, have any bearing on tbe question even as to tbe share ■of Willie Runge who died July 6, 1901, and within tbe year. That section provides:

> “If any person entitled to bring an action die before tbe ■expiration of the time *limited,*for the commencement thereof and tbe cause of action survive, an action may be commenced by bis representatives after tbe expiration of tbat time and within one year from bis death.”

It forms a part of tbe chapter on legal limitations of actions. After providing in numerous sections tbe specific limitations upon various forms of action, tbe chapter proceeds to specify certain exceptions to tbe running of tbe limitations. Sec. 4231 provides, in substance, tbat if tbe defendant be out of tbe state when the action accrues, or depart ■from and reside out of tbe state after it accrues, tbe time of 'bis absence shall not be deemed a part of the time limited. *367■Sec. 4232 provides tliat, when a person is an alien enemy, the time of the continuance of the war shall not be a part of the time limited. Sec. 4233 provides, in substance, that if any plaintiff (except in certain cases) at the time the action •accrues be a minor, or insane, or imprisoned on a criminal ■charge, or in execution under a sentence for a term less than life, the time of such disability is not to be a part of the time limited for the commencement of the action, with certain provisos, not necessary to be stated; and then follows sec. 4234, the terms of which have been previously stated. It seems to us very clear that these sections were designed simply to mate the chapter on legal limitations a harmonious whole, and that, when they refer to “the time limited for the commencement of the action,” they refer to the time limited by law, as laid down in the previous sections of the chapter. Legal limitations, and not contract rights, is the subject under consideration. Had there been an intention to affect the terms of contracts, it would have been very easy of statement, and it seems certain that it would have been indicated -in some unequivocal manner. It has been directly held that the statutory exception in favor of minors does not affect the contract limitation. *Suggs v. Travelers’ Ins. Co. 71*Tex. 579, 2 S. W. 676; 4 Joyce, Insurance, § 3196; *O’Laughlin v. Union Cent. L. Ins. Co.*11 Fed. 280. See, also, *Riddlesbarger v. Hartford Ins. Co. 7*Wall. 386.

Our conclusion is that a nonsuit should have been granted, •or, in default of a nonsuit, that a verdict for the defendant should have been directed at the close of the evidence.

There are some minor questions presented, which perhaps deserve attention, especially in case of another trial. An inquest was held upon the body of Bunge, and a verdict rendered that he came to his death by “taking carbolic acid.” The defendant offered the verdict in evidence, and it was rejected, and this ruling is claimed to be error. Conceding that the record was admissible, which may be a matter of *368some doubt *(Olwell v. Milwaukee St. R. Co.*92 Wis. 334, 66 N. W. 362), there was no prejudicial error in tlie ruling, because the fact that the death was caused by drinking carbolic acid was proven beyond dispute, and was, in substance, admitted, and the only real question was whether the taking was accidental.

Again, the defendant offered in evidence a part of the proof of death made by Emma Brickman, in which she stated that the deceased “swallowed carbolic acid,” and the evidence was excluded. This was plainly error, because, though the proof was not made by any of the plaintiffs, still it was made on behalf of all the beneficiaries, and the rights of all were dependent upon the fact that these proofs had been made; hence any statements required *to*be *made*therein were admissible against all, the fact being that the other beneficiaries had made m> separate and independent proofs, and relied solely on Emma’s proofs; but here, again, there was no prejudice, as the fact was not in dispute.

The form of the question submitted to the jury is criti-cised, and while, perhaps, there is no ground for holding it materially defective, it must be said that it was not well framed. The sole material question was whether the death of the insured was caused by suicide, sane or insane; and the question should have been framed, if not in these words, at least in such words as to clearly put this exact issue before the jury.

The plaintiff *Fred Bunge*is a minor, and it does not appear that any guardian *ad litem*was ever appointed for him. Objection is made in this court for the first time that he cannot maintain the action, on account of his being an infant when the same was commenced. The objection is too late. It is an objection that the plaintiff has not legal capacity to sue, and this objection must be taken by demurrer or answer, or it is waived. Sec. 2654, Stats. 1898.

Another very vital question is presented by the briefs and *369arguments. Tbe policy provided that “if tbe death of tbe insured is caused by suicide, wbetber tbe insured be sane or insane,” it should be avoided; and tbe appellant contends that tbe evidence shows with such clearness as to exclude every other reasonable hypothesis that Runge committed suicide, so that a verdict for tbe defendant should have been directed on this ground. There are but four justices participating in the decision of this appeal, and there is an equal division of opinion upon the question; hence there can be no reversal on this ground, and no useful purpose subserved by a recital or discussion of the evidence.

*By the Gourt*— Judgment reversed, and action remanded for á new trial.

Siebeckee, J., took no part.