Premier Refining Co. v. Falkenberg

The record shows that the court placed the burden of proof on the defendant to establish by a clear and satisfactory preponderance of the evidence that the third question should be answered “Yes.” To such portion of the instruction the defendant excepted. The burden of proof was upon the plaintiff as to this question instead of upon the defendant, and were the plaintiff’s right to recover dependent upon the answer to this question, such erroneous instruction would be clearly prejudicial error. Estate of Utter, 173 Wis. 180, 183, 180 N. W. 810.

Under the evidence, however, as we view the…