¶1(concurring specially).
¶2I concur in the result reached in this opinion; however, I would reverse the judgment n. o. v. for Joanne Gruba on the grounds that the statute of limitations is a personal defense and does not deprive the trial court of jurisdiction on its face and that it may be waived at any time. See SDCL 15-6-8(c) and Frederickson v. McIntyre, 1938, 52 Ariz. 61, 78 P.2d 1124. As was stated in First v. Byrne, 1947, 238 Iowa 712, 28 N.W.2d 509:
“It is true of course as a rule that the right to interpose the statute (of limitations) as a defense is a personal privilege of the debtor which he may waive, or omit to avail himself of, if so inclined.” 28 N.W.2d at 513-514.
¶3This seems to be the way the statute of limitations defense is viewed in South Dakota. In Stokes v. Rabenberg, 1927, 51 S.D. 493, 215 N.W. 492, the question was whether one party could waive objection to a notice for intention to seek a new trial outside the statutory 20-day period. The court considered the 20-day period to be a statute of limitations. “The jurisdiction conferred by a notice of intention timely served is jurisdiction over the person, not of the subject-matter and can be waived. The time in which such notice must be served is a statute of limitations subject to waiver.”
¶4In his final argument, the defense counsel stated:
“As I said, you can give the plaintiff a verdict against Joanne Gruba in whatever amount you think is right, if you think that’s the right thing to do. I think that the action of Mr. Gruba is understandable and is proper under all the circumstances. There is no reason that you can’t award the plaintiff as much of a verdict as you would award against both defendants if you just give the verdict to the plaintiff against Joanne Gruba. Mr. Holland made reference to the fact that Mr. and Mrs. Gruba are biased; that they’ve got the interest in this *332thing, and that the implication was that they haven’t been truthful. I want to disclose to you something that only I have the right to disclose to you; that neither the Court nor Mr. Holland would be able to disclose to you, and that is the fact that Mr. Gruba and Mrs. Gruba are covered by liability insurance, and they don’t have a monetary interest in this case, as the plaintiff has. So, I ask you to keep that in mind; that they have no reason to be here coloring their testimony in any matter.” (emphasis supplied)
¶5I would hold that the defendant waived her defense of statute of limitations by this statement made openly in court in her presence and in the presence of the court and jury. She should not be permitted to revoke that waiver, relied on by the plaintiff and the jury, in a later motion n. o. v.
¶6This line of reasoning relieves this court of any consideration of the fact that plaintiff’s attorney failed to object to improper statements by defendants’ counsel at the time they were made or by a later motion for mistrial. He would have no reason to object to defendant’s waiver of this defense as it was to his client’s advantage.
¶7(concurring in part, dissenting in part).
¶8I concur in that portion of the opinion that affirms the judgment entered on the jury verdict in favor of defendant Eddie Gruba, and I dissent from that portion of the opinion that reverses the judgment notwithstanding the verdict entered by the trial court in favor of defendant Joanne Gruba.
¶9In his opening argument to the jury following the reading of the instructions, plaintiff’s counsel said:.
“… * And, consider those facts of these disinterested persons. Now when you consider that testimony, pay attention to instruction § 16, because that instruction tells you that you can consider any interest that a witness may have in the outcome of this suit and weigh that testimony accordingly. We submit to you that the testimony of the Gruba’s does not coincide with the *333testimony of disinterested people, people who have nothing to gain or nothing to lose in this lawsuit; Ben Karst and his wife and former Sheriff, Herbert Mundt.
¶10Plaintiffs counsel then went on to discuss the matter of plaintiffs injuries, the amount of his past economic loss and the amount of money that plaintiffs counsel believed would adequately compensate plaintiff for his economic loss and for his past and future pain and suffering.
¶11In reply, defendants’ counsel argued, in this order, that:
“… The next question, I think, to consider is whether the plaintiff should be awarded a judgment against Joanne Gruba. … If you decide that it (the accident) came about because of this act of inadvertence on her part at that time, then you should find for the plaintiff and against Joanne Gruba. We didn’t come in here to Court today to tell you that Mr. Arbach hasn’t been injured, either. We are not claiming that. … Let’s assume for a moment that you do allow the plaintiff to recover against Joanne Gruba. You would then have to fix, of course, the amount of money that the plaintiff would recover against Joanne Gruba, up to $17,167. …”
¶12Defense counsel then went on to attempt to minimize, quite legitimately, plaintiff’s economic loss.
¶13When read in the context of the remarks made by plaintiffs counsel in his opening argument to the jury and in the context of the earlier portion of his own argument, the statements made by defendants’ attorney as set forth in the majority opinion take on a different meaning. The statement, “As I said, you can give the plaintiff a verdict against Joanne Gruba in whatever amount you think is right, if you think that’s the right thing to do,” was nothing more than a legitimate appeal by defense counsel that the jury exercise its fair judgment, hopefully in a manner that would result in a conservative verdict for plaintiff or, at the very outside, a verdict in favor of Joanne Gruba.
¶14*334Likewise, the statement “There is no reason that you can’t award the plaintiff as much of a verdict as you would award against both defendants if you just give the verdict to the plaintiff against Joanne Gruba,” was a legitimate comment in support of the argument that the law reqúires that negligence be established on the part of a husband before he can be held liable for injuries caused by his spouse’s negligent operation of his automobile and that this was an important principle so far as defendant Eddie Gruba was concerned.
¶15The remaining portion of the argument set forth in the majority opinion was nothing more than an attempt by defense counsel to reply to plaintiff’s argument that the jury should consider the interest that the defendants had in the outcome of the suit in weighing their testimony. I would agree that defense counsel should not have interjected the fact of insurance coverage into the lawsuit; as the majority opinion correctly states, our cases have consistently held that the fact of liability insurance has no part in the trial of a negligence action. However, plaintiff’s counsel did not object at the time the argumént was made, and I would hold that it is now too late to raise the question of prejudice;
¶16Instruction number 11 informed the jury that each of the defendants was entitled to a fair consideration of his own defense and stated that “… You will decide each defendant’s case separately, as if each were a separate lawsuit.” There is no indication in the record that the jury did not follow this instruction. Indeed, by affirming the judgment in favor of defendant Eddie Gruba, we are implicitly acknowledging that the jury did follow this instruction. It follows from this that plaintiff could not have suffered any prejudice even if defense counsel’s argument could fairly be described as “playing fast and loose with the court,” a characterization that is unwarranted when the arguments of counsel are read in their entirety.
¶17It was entirely proper for defense counsel to try to restrict the verdict to that defendant on whose behalf he thought he had the stronger legal ground on which to secure post-verdict relief. Plaintiff’s counsel recognized the fact that defendant Joanne Gruba might ultimately prevail on her defense of the statute of *335limitations and accordingly argued to the jury in rebuttal that the jury should return a verdict against both defendants.
¶18The majority opinion states that the result might well have been different had the jury known that this court had already held the statute of limitations to be a valid defense in the case at hand and that the jury relied upon the implied promise that a verdict against Joanne Gruba would be covered by insurance. This seems to imply (1) that the jury would not have followed the instructions of the court had they known about the statute of limitations defense, and (2) that the jury did not follow the instructions of the court. I would reject both of these propositions.
¶19What I have said above also applies to the theory of waiver as expressed in Chief Justice Dunn’s concurring opinion.
¶20The argument on which plaintiff prevails on appeal was presented to the trial court shortly after the trial. I would give the trial court’s decision rejecting this argument great weight, coming as it did from one who had had the vantage point of hearing the arguments of counsel in their full perspective and context.
¶21I join in Justice Coler’s dissenting opinion.