122 N.W. 721 (Wis. 1909), Bakalars v. Continental Cas. Co.

Citation:122 N.W. 721, 141 Wis. 43
Opinion Judge:DODGE, J.
Party Name:BAKALARS, Respondent, v. CONTINENTAL CASUALTY COMPANY, Appellant
Attorney:For the appellant there was a brief by Jesse E. Higbee, attorney, and Manton Maverick, of counsel, and oral argument by Mr. Higbee. For the respondent there was a brief by W. F. & A. C. Wolfe, and oral argument by W. F. Wolfe.
Judge Panel:JOSHUA ERIC DODGE, J. JOHN B. WINSLOW, C. J., no opinion.
Case Date:October 05, 1909
Court:Supreme Court of Wisconsin
 
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Page 721

122 N.W. 721 (Wis. 1909)

141 Wis. 43

BAKALARS, Respondent,

v.

CONTINENTAL CASUALTY COMPANY, Appellant

Supreme Court of Wisconsin

October 5, 1909

Argued September 15, 1909.

APPEAL from a judgment of the circuit court for La Crosse county: J. J. FRUIT, Circuit Judge. Affirmed.

Action on policy for accidental death of John Bakalars on December 7, 1905, whose body was found shortly after 1 o'clock in the morning beside a railroad track. Death by one of the causes insured against was not contested, but the defendant set up, first, that it occurred from "the voluntary exposure of said Bakalars to unnecessary danger and obvious risk and injury," and, second, while said Bakalars was "under the influence of intoxicating liquors," in each of which cases the policy provided that only one tenth of the face thereof should be paid. This amount was tendered. The court submitted but one question to the jury, namely, whether Bakalars at the time he sustained the actual injury was under the influence of any intoxicant, which was answered in the negative. Whereupon judgment for the face of the policy was rendered, from which the defendant appeals.

Judgment affirmed.

For the appellant there was a brief by Jesse E. Higbee, attorney, and Manton Maverick, of counsel, and oral argument by Mr. Higbee.

For the respondent there was a brief by W. F. & A. C. Wolfe, and oral argument by W. F. Wolfe.

JOSHUA ERIC DODGE, J. JOHN B. WINSLOW, C. J., no opinion.

OPINION

Page 722

[141 Wis. 44] The following opinion was filed October 5, 1909:

DODGE, J.

1. The first error assigned is upon refusal to submit to the jury the question whether the injury resulted "from voluntary exposure to unnecessary danger or obvious risk of injury." According to the great weight of authority three elements are essential to this excuse from liability: (a) Conscious knowledge of the danger; (b) intentional or wilful exposure to it; and (c) that the danger shall be unnecessary. As to the first two elements, this court has declared itself in accord with such authority in Schneider v. Providence L. Ins. Co. 24 Wis. 28; Shevlin v. Am. Mut. Acc. Asso. 94 Wis. 180, 68 N.W. 866; and in Sargent v. Central Acc. Ins. Co. 112 Wis. 29, 87 N.W. 796. The only evidence upon which the court or jury could act was that the deceased was a locomotive fireman insured as...

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