Kuroske v. Aetna Life Ins. Co. of Hartford, Conn.

• Decision Date: 09 April 1940
• Citation: 291 N.W. 384,234 Wis. 394
• Parties: KUROSKE v. AETNA LIFE INS. CO. OF HARTFORD, CONN.
• Court: Wisconsin Supreme Court

234 Wis. 394

291 N.W. 384

KUROSKE

v.AETNA LIFE INS. CO. OF HARTFORD, CONN.

Supreme Court of Wisconsin.

April 9, 1940.

Appeal from a judgment of the County Court of Oneida County, upper Municipal Branch; H. F. Steele, Judge.

Affirmed.

The action was commenced on March 2, 1939, by the plaintiff, Katherine Kuroske, against the defendant, Aetna Life Insurance Company, to recover on an accident policy issued by it to her son, Edward R. Kuroske, in which she was the beneficiary. The insured sustained fatal injuries in a collision between an automobile driven by him and a locomotive of a passenger train. The defendant denied liability on the ground that the policy did not cover the particular accident because the insured, at the time of the accident, was under the influence of alcoholic liquors and intoxicants. Trial was had to the court and a jury. The jury found in answer to the only question submitted to it, that at the time of the accident the insured was not under the influence of intoxicants. Upon the coming in of the verdict, the defendant moved, (1) to change the answer from “No” to “Yes” and for judgment on the verdict as amended; (2) for judgment notwithstanding the verdict because the verdict was contrary to law and contrary to the evidence; and (3) for a new trial on the grounds that the court erred, in receiving evidence over its objection; in rejecting evidence offered by it; in instructing the jury, and in refusing to instruct the jury, as requested. The court denied the motions of the defendant and ordered the entry of judgment on the verdict. From a judgment so entered on August 31, 1939, the defendant appealed.Quarles, Spence & Quarles, of Milwaukee (Kenneth P. Grubb; of Milwaukee, of counsel), for appellant.

Vernon J. McHale, of Antigo (D. W. Goodnough, of Antigo, of counsel), for respondent.

NELSON, Justice.

The policy in question was a so-called “special automobile accident policy” under the terms of which the liability of the defendant was limited. The policy provided in part as follows: “The insurance under this policy shall not cover accident, injury, death, disability or other loss caused directly or indirectly, wholly or partly, (1) by disease in any form, (2) by gas poisoning or asphyxiation, or (3) by war or any act of war; or sustained by the insured *** (7) while under the influence of any intoxicant or narcotic.”

[1][2]The policy was issued in this state and must be construed as a Wisconsin contract. In Bakalars v. Continental Casualty Co., 141 Wis. 43, 122 N.W. 721, 722, 25 L.R.A.,N.S., 1241, 18 Ann.Cas. 1123, the language: “under the influence of any intoxicant,” was construed. It was there said: “We must presume that it means such and so much influence as impairs the ability of the subject to care for himself, and thus increases the probability of his suffering accidental injury. In light of such reasoning it has been decided by all courts speaking upon the subject that influence of intoxicants in accident policies means the same thing as the word ‘intoxication”’ Citing cases.

The trial court instructed the jury as to the meaning of the language “under the influence of any intoxicant” as declared by this court in the Bakalars case, supra, and the jury found that the deceased, at the time of the accident, was not under the influence of any intoxicants.

The defendant assigns as error (1) the refusal of the trial court to change the answer of the jury, (2) the denial of its motion for judgment notwithstanding the verdict, and (3) the denial of its motion for a new trial.

The broad contention made by the defendant is that the evidence does not support the verdict. Before considering the more specific contentions of the defendant it will be helpful to summarize the facts.

The injured, at the time of his death, was forty-two years of age. He operated a tavern at Sayner. He had served as a bartender in prior years. During the winter preceding February 23, 1938, he had been drinking more or less heavily. From February 23d to March 2d, he was treated at the Rhinelander hospital for chronic alcoholism. On November 14, 1938, he drove from Sayner to Rhinelander, arriving there at his mother's home at about 10 o'clock P.M. At about 11 o'clock he and his brother Leo drove to Deau's Tavern in Rhinelander. They were there about forty minutes. They then drove to Langdon's Tavern where they remained until about ten minutes to one. They then drove to Khoury's Club, another tavern located about two miles from Rhinelander. They stayed there until a little after 3 o'clock. They left that tavern intending to go to a tavern in Rhinelander known as the “Hungry Hole” where the deceased wished to get some pea soup. Enroute to the “Hungry Hole” and within the city of Rhinelander, the accident occurred. Just prior to the collision, the train was being operated at a speed of about ten miles per hour and the automobile at thirty to forty miles per hour. The automobile collided with the left side of the pilot of the locomotive. The train was so quickly stopped that the dragged automobile was still within the street limits. Both the deceased and his brother were severely injured. Within a comparatively short time they were taken by ambulance to the Rhinelander hospital. After being released from his automobile the deceased had walked to the ambulance with the assistance of the ambulance driver. He sat on the seat with the driver until the hospital was reached. His brother Leo was first cared for at the hospital because he was bleeding. The deceased was then cared for. His chest was severely injured and he was in great shock and pain. Pursuant to the request of a state traffic officer, Dr. Richards, the attending physician, took a sample of deceased's blood. The deceased died the following day, November 16th.

Testimony was adduced by the defendant to show that the sample of blood taken by Dr. Richards was, after several days, delivered to Goodwin Jost of Minneapolis, a commercial chemist; for analysis. Mr. Jost testified that he analyzed the sample delivered to him and found that it contained .25 per cent of ethyl alcohol by weight. Drs. H. A. Heise and E. L. Tharinger, both of Milwaukee, who testified as experts, stated their opinions as to the various degrees of intoxication that exist in individuals having different percentages of alcohol in their blood. Both of them related experiments conducted by them and by other scientists, based on chemical tests to determine intoxication. They testified in substance that they were not able to say that individuals having .05 per cent of alcohol in their blood are under the influence of alcohol; that some individuals having .05 per cent to .15 per cent of alcohol in their blood are definitely in the range of alcoholic effects; that individuals having .15 per cent or more of alcohol in their blood are not border line cases and are definitely under the influence of alcohol and that individuals having .25 per cent of alcohol in their blood are intoxicated.

The plaintiff produced a number of lay witnesses who testified as to the limited number of drinks that they had observed the deceased take during the late hours of November 14th and the early hours of November 15th, while he was in the taverns mentioned, and as to his non-intoxicated condition at the time he left the Khoury Club shortly before the accident.

It is contended that the testimony adduced by the plaintiff was negative in character under the rule stated in Zenner v. Chicago, St. P. M. & O. R. Co., 219 Wis. 124, 262 N.W. 581, and numerous cases cited therein, and that such testimony therefore did not create a jury question. Leo Kuroske testified that he saw the deceased drink only two beers and that he did not see him take any other drinks. His testimony as to the two beers was of course positive. Carl Larson, who was tending bar at Deau's Tavern on the evening of November 14th, testified that he did not see any signs of intoxication on the deceased when the latter was in that tavern. This testimony was of little or no materiality on the question of the deceased's intoxication about four hours later. Mrs. Khoury, the wife of the proprietor of the Khoury Club, testified that the deceased arrived at the Khoury Club between 1 and 2 o'clock and stayed there about two hours; that when he first came in he had a bowl of chili; that she did not see him drink anything; that she talked to him and observed no signs of intoxication on him; that the deceased talked mostly to her husband; that she participated in the conversation off and on; that the deceased evidenced no signs of mental confusion or intoxication; that she and one waitress waited on the tables and booths and served both drinks and food and that during the hours mentioned, she was in conversation with the deceased quite a bit of the time. Anton Khoury, the proprietor; testified that he was well acquainted with the deceased; that the deceased had worked for him; that he talked to the deceased much of the time during the two hours; that the deceased was not drunk; that he could observe no signs of intoxication on him and could smell no liquor on his breath; that in discussing a business matter with him, the deceased made no remark that seemed unreasonable; that he himself had not taken a drink within twenty-four hours prior to the time that the deceased was in his place; that he might have left the room for a few seconds ten or fifteen times while the deceased was there. The witness admitted that the deceased might have had drinks which he had not observed. Albert Onson, the driver of the ambulance, testified that he did not notice any signs of intoxication but also stated that he had made no observations at all to determine whether the deceased was sober, because he was not interested. Dr. Richards testified that he did not observe any signs of...