Switzer v. Weiner
| Decision Date | 07 March 1939 |
| Citation | 230 Wis. 599,284 N.W. 509 |
| Parties | SWITZER v. WEINER et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Rock County; Jesse Earle, Judge.
Reversed.
This action was begun in October, 1937, by Bert Switzer, administrator of the estate of Boyd Switzer, deceased, plaintiff, against Judith A. Weiner, administratrix of the estate of W. T. Arvin, deceased, and Employers' Liability Assurance Corporation, Ltd., defendants. The case was tried to a jury which found in favor of the plaintiff and from judgment entered upon the verdict on May 19, 1938, defendants appeal.
The facts will be stated in the opinion.Jeffris, Mouat, Oestreich, Wood & Cunningham, of Janesville, for appellants.
Nolan, Dougherty, Grubb & Ryan, of Janesville, for respondent.
On February 20, 1937, William Arvin, James Gardner and Robert Thompson left Beloit in Arvin's car. On the way to Rockford, Illinois, at South Beloit, they picked up Boyd Switzer, who lived at Marengo, Illinois, about twenty miles directly east of Rockford. The distance from Rockford to Beloit is approximately eighteen miles. About three and one-half miles south of Beloit is Rockton, where the parties stopped for a glass of beer and at which place they evidently spent some time. The day was a foggy and misty one. On the way to Rockford they overtook Charles and Janette Hathaway, brother and sister, who were walking to Rockford. They were invited to ride and got into the rear seat of the coach, the sister sitting on her brother's lap. This was upon the invitation of Arvin. Five or six minutes later and after travelling about five miles, the car crashed into a telephone pole and as a result Arvin, Switzer and Robert Thompson were killed. The jury found that Arvin was guilty of wilful and wanton misconduct in respect to excessive speed, proper lookout, keeping his car under control, under the circumstances in attempting to pass an automobile going in the same direction and driving his automobile while under the influence of intoxicating liquor. They found that each and all of these acts of wilful and wanton misconduct were a proximate cause of the injuries to plaintiff's intestate. The following question was submitted to the jury: “In placing himself in the car of Arvin by remaining in his automobile and riding with him in the condition Arvin was in and under all the circumstances in evidence, did Boyd Switzer acquiesce in the operation of said automobile by Arvin in the condition he was in?” Answer by the jury: “Yes”.
Upon this appeal two principal questions are raised: (1) Did Boyd Switzer by acquiescence and placing himself in the care of the intoxicated driver Arvin, the deceased, bar recovery in this action; (2) Inasmuch as the jury found that the conduct which resulted in the accident was wilful and wanton misconduct, was the loss covered by the policy of insurance by which the insurance company agreed “to pay on behalf of the Assured all sums which the Assured shall become obligated to pay by reason of the liability imposed upon him by law for damages *** sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of the automobile”?
[1][2][3][4] The accident happened in the state of Illinois and the liability of the parties is therefore to be determined in accordance with the law of the state of Illinois. The plaintiff in his complaint set out the statutory law of Illinois relating to damages being secs. 1 and 2 of ch. 70, Smith-Hurd Illinois Annotated Stats., and sec. 58a of ch. 95 1/2 of said statutes, but made no allegation respecting the common law of the state of Illinois nor was any proof offered upon the trial with respect to the common law of the state of Illinois. The courts of this state take judicial notice of the statutes of the United States and of all the states and territories thereof (sec. 328.01). This, however, does not apply to the common law. If a party claims that his rights are to be determined in accordance with the law of another state, the law of that state must be pleaded and proven as any other fact; otherwise the common law of the state where the injury occurred will be presumed to be the same as the law of the forum. De Lorenzo v. Supreme Lodge, Knights of Phythias, 1936, 222 Wis. 141, at page 148, 268 N.W. 217;Jensen v. Jensen, 1938, 228 Wis. 77, 279 N.W. 628. See, also, 3 Beale, Conflict of Laws, sec. 621.4. There being no allegation in the pleadings as to the law of the state of Illinois and no proof in respect thereto, the questions...
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Hennessy v. Wells Fargo Bank, N.A.
...Wisconsin courts cannot take judicial notice of foreign countries laws; the parties must prove them as facts.1 Cf. Switzer v. Weiner, 230 Wis. 599, 601–02, 284 N.W. 509 (1939). ¶66 This conclusion is bolstered by the Wisconsin cases addressing Wis. Stat. § 902.02 and is consistent with the ......
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Bogen v. Bogen
... ... by entering the car, must himself bear the consequences when ... he is injured by reason of a known danger. Switzer v ... Weiner, 1939 [230 Wis. 599], 284 N.W. 509. *** She ... voluntarily entered into the host-guest relationship and ... accepted the benefits ... ...
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Hammer v. Road America, Inc.
...risk still applies to situations where there is a consensual relationship between the defendant and the plaintiff. Switzer v. Weiner, 230 Wis. 599, 603, 284 N.W. 509 (1939). See also, Polsky v. Levine, 73 Wis.2d 547, 552, 243 N.W.2d 503 The defense of express assumption of risk is described......
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Pierce v. Clemens
... ... himself bear ... [46 N.E.2d 841] ... the consequences when he is injured by reason of a known ... danger," citing Switzer v. Weiner, 1939, 230 ... Wis. 599, 284 N.W. 509. Where the evidence on the question of ... assumption of risk presents an issue of fact, that issue ... ...