Schon v. Modern Woodmen of America

Citations

• 51 Wash. 482
• 99 P. 25
• 1909 Wash. LEXIS 1216

Syllabus

<p>Appeal — Review—Waiver of Error — Nonsuit. Error in denying a motion for a nonsuit, asked on the ground that the burden of proof had been upon the plaintiff respecting a certain defense, and as to which no evidence was given, is waived where the matter was afterwards fully gone into by the defense.</p> <p>Insurance — Actions—Proof of Death — Evidence — Admissibility. An attending physician’s certificate of death js admissible as part of the proofs of death, in an action on a benefit certificate, although it contains a clause giving the cause of death, which was an issue in the action.</p> <p>Appeal — Review—Harmless Error — Pacts Otherwise Established. It is harmless error to exclude a physician’s certificate of death, stating the cause of death, where the physician testified fully as to the matters contained in the certificate.</p> <p>Trial — Instructions — Necessity of Written Instructions. Where a stenographic report of instructions to the jury is made by a stenographer employed by both parties, he is sufficiently under the control of the court to constitute his report “instructions in writing,” within the meaning of Laws 1903, p. 119, §1, requiring written instructions upon demand, provided that a stenographic report of the charge shall be considered a charge in writing (Overruling McIntosh v. Sawmill Phoenix, 49 Wash. 152.).</p> <p>Insurance — Actions—Cause of Death — Evidence—Remoteness. ’ In an action upon a benefit certificate, evidence of a liquor bill for $30, owed by deceased and that the same was purchased for his own use, is too remote to require its admission upon an issue as to whether death resulted from intemperance.</p> <p>Same — Defenses—Intemperance—Statements in Application. In an action upon a benefit certificate, the defendant cannot rely upon a statement in the deceased’s application that he had always been an total abstainer, where the application further stated that he was “almost” a total abstainer and drank beer once in a great while.<