Bakalars v. Cont'l Cas. Co.

• Decision Date: 05 October 1909
• Citation: 141 Wis. 43,122 N.W. 721
• Parties: BAKALARS v. CONTINENTAL CASUALTY CO.
• Court: Wisconsin Supreme Court

141 Wis. 43

122 N.W. 721

BAKALARS

v.CONTINENTAL CASUALTY CO.^d1

Supreme Court of Wisconsin.

Oct. 5, 1909.

Appeal from Circuit Court, La Crosse County; J. J. Fruit, Judge.

Action by Rose Bakalars against the Continental Casualty Company. Judgment for plaintiff, and defendant appeals. 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 courts 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.Jesse E. Higbee (Manton Maverick, of counsel), for appellant.

W. F. & A. C. Wolf, for respondent.

DODGE, J. (after stating the facts as above).

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 willful 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 Life Ins. Co., 24 Wis. 28, 1 Am. Rep. 157,Shevlin v. The American Mutual Accident Ass'n, 94 Wis. 180, 68 N. W. 866, 36 L. R. A. 52, and in Sargent v. Central Accident Ins. Co., 112 Wis. 29, 87 N. W. 796, 88 Am. St. Rep. 946. The only evidence upon which the court or jury could act was that the deceased was a locomotive fireman insured as such, whose duties, of course, took him about the tracks in railroad yards, and that on the occasion in question he took an entirely usual route, and the shortest one, from his home to his place of employment at the roundhouse through the railroad yard, and in the vicinity of tracks, and that his injuries indicated that he had been struck and run over by a passing engine. In the absence of any other evidence, we agree with the trial court that a conclusion either that he knew of the danger from which he suffered, or that he willfully and intentionally exposed himself to it, could have been based only on conjecture or guess. The burden of proof was upon the defendant to offer evidence from which such conclusion might result by reasonable inference, and not alone by conjecture. Follis v. Insurance Co., 94 Iowa, 435, 62 N. W. 807, 28 L. R. A. 78, 58 Am. St. Rep. 408;Musbach v. Wisconsin Chair Co., 108 Wis. 57, 84 N. W. 36;Hyer v. City of Janesville, 101 Wis. 371, 77 N. W. 729;Schell v. Railway Co., 134 Wis. 142, 113 N. W. 657. The trial court did not err in holding that no such evidence had been introduced, and therefore an affirmative answer to such question could not have been sustained.

2. A second error is assigned upon the refusal of the court to direct verdict that the deceased at the time of his injury was under the influence of intoxicating liquor, which fact it is claimed was established without dispute. We cannot at all agree with this view of appellant's counsel. The evidence of any considerable use of intoxicating liquor, or influence thereof upon deceased even at any time during the evening before his death, is very conflicting; but, even if a condition of some degree of intoxication had existed, there was evidence tending to show that the last use of liquor was prior to 10 o'clock; that an hour or more of slumber succeeded it, and that as early as an hour before the casualty, on awakening from that slumber, deceased had fully...