Vincent v. Pabst Brewing Co.

177 N.W.2d 513, 47 Wis. 2d 120, 1970 Wisc. LEXIS 975

• Court: Wisconsin Supreme Court
• Decided: June 5, 1970
• Docket: 232
• Status: Published

Opinions

Hanley, J".

Two related questions are presented on this appeal:

(1) Should the doctrine of pure comparative negligence be adopted in Wisconsin; and, if so,

(2) Should such adoption be accomplished by this court rather than by the legislature ?

Under the current law in Wisconsin, the appellant can recover nothing from the respondents because his negligence exceeded that of the respondent Nye. Under pure comparative negligence, however, appellant would recover 40 percent of his damages, for pure comparative negligence never bars recovery. Instead, it merely reduces the recoverable amount of one’s damages by the percentage of his negligence. In considering the appellant’s contention that a doctrine of pure comparative negligence should be adopted, the Wisconsin history of both contributory negligence and comparative negligence should be briefly noted.¹

The doctrine of contributory negligence as a complete bar to recovery was originally adopted by the English courts in Butterfield v. Forrester (1809), 11 East. 60, 103 Eng. Rep. 926. This doctrine then spread to this country and was adopted by this court in Chamberlain v. Milwaukee & Mississippi RR. Co. (1858), 7 Wis. 367, 374 (*425, *431), and in Dressler v. Davis (1858), 7 Wis. 449, 452 (*527, *531). In order to avoid the harshness of the doctrine of contributory negligence, which had its origin in an era of economic individualism, the Wisconsin legislature in 1875 created what exists in our present statutes as sec. 192.50, Stats.² This section, however, is limited in its application to railroads and their employees. It was not until 1931 ³ that our legislature passed, for general application, what is now sec. 895.045.

In its present form sec. 895.045, Stats., reads:

“Contributory negligence; when bars recovery. Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering.”

Noting that contributory negligence is a court-adopted doctrine, the appellant contends that such doctrine has only been partially eliminated by sec. 895.045, Stats. In other words, the appellant contends that .the statute eliminates the doctrine where the negligence of the defendant exceeds that of the plaintiff, but that the court-adopted doctrine remains in effect where the negligence of the plaintiff equals or exceeds that of the defendant. Thus, according to the appellant, it is not sec. 895.045, but the common-law doctrine of contributory negligence (to the extent it was left unchanged by the statute) which bars his recovery. If, in fact, such were the case, this court, of course, would have authority to change the common law.

As to the relative merits of pure comparative negligence and the Wisconsin application of comparative negligence, much has been written. In reference to the Wisconsin application of partial comparative negligence, Professor Prosser has stated:

“It is obvious that a slight difference in the proportionate fault may permit a recovery; and there has been much quite justified criticism of a rule under which a plaintiff who is charged with 49 per cent of the total negligence recovers 51 per cent of his damages, while one who is charged with 50 per cent recovers nothing at all. Actually, of course, juries almost never indulge in such refined hair-splitting, and the criticism really goes to the directed verdict. It has been said that the restriction is necessary to prevent the jury from giving the plaintiff something in every case, even where the defendant may not be negligent at all, or is at fault to the extent of only 1% of the total. But this ignores the fact that the court still has control over an unjustified apportionment, and that a 1% recovery will be insignificant, and less than the nuisance value of the suit. Actually the writer has found no such cases. It appears impossible to justify the rule on any basis except one of pure political compromise. It is difficult to be happy about the Wisconsin case's, or to' escape the conclusion that at the cost of many appeals they have succeeded merely in denying apportionment in many cases where it should have been made.” ⁴ (Emphasis supplied.)

It has also been stated that since Bielski v. Schulze (1962), 16 Wis. 2d 1, 114 N. W. 2d 105, has established pure comparative negligence in situations wherein multiple defendants are seeking contribution among themselves, there is no justification for not applying pure comparative negligence between plaintiffs and defendants.

“The plaintiff’s right of recovery should be handled the same way. He should be allowed to recover irrespective of how negligent he is. Of course, where his negligence is high in comparison with that of a defendant or defendants, recovery would be reduced in a large degree. The doctrine which bars recovery by a claimant who is 60 per cent or more negligent is the common law bar rule at a different level. It is a misfit in a system designed, to distribute responsibility according to degrees of fault. . . .” ⁵ (Emphasis supplied.)

Others have favored the Wisconsin position and have said:

“. . . [Pure comparative negligence] would increase claims and litigation. It would put a greater strain on ever increasing insurance rates. It would cause the general public to bear a larger premium for insurance and costs for judicial administration as a result of allowing plaintiffs of greater fault to recover. It would be the first step to a ‘no fault’ system whereby the wrongdoer is allowed to profit from his own wrong. It is contrary to the basic sense of justice created by the majority of citizens and as such embodied in the historic principles of tort law. ...” ⁶

Although considerable disagreement exists as to whether a doctrine of pure comparative negligence should be adopted in Wisconsin, there has been considerable agreement as to the ability or propriety of this court’s initiating such adoption. One writer has said that the Wisconsin doctrine of comparative negligence “. . . is a statutory rule and the court is helpless. ...” ⁷ The writer continues by stating:

. . If the legislature had never developed a comparative negligence doctrine, our supreme court might feel free to act. However, the right of the claimant is now controlled by the 1931 statute. The change should be made, but it will require action by the Wisconsin Legislature.” ⁸

In support of the contention that this court has authority to adopt pure comparative negligence, it has been argued in the amicus curiae brief of the American Trial Lawyers Association that the legislature, in enacting sec. 895.045, Stats., did not pre-empt the field of comparative negligence and thereby preclude further development by this court. Analogy is then drawn to this court’s decision in Holytz v. Milwaukee (1962), 17 Wis. 2d 26, 115 N. W. 2d 618, where in the common-law doctrine of governmental immunity for tort liability was abolished, despite previous legislative activity which had removed immunity in limited circumstances. See: Farmers Mut. Automobile Ins. Co. v. Gast (1962), 17 Wis. 2d 344, 117 N. W. 2d 347, for further discussion of legislative preemption.

This court, however, has consistently interpreted the statute itself as having created the bar to recovery. The statute says: “Contributory negligence shall not bar recovery ... if such [negligence of the party seeking recovery is] not as great as the negligence of the person against whom recovery is sought. . . .” The natural inference is that if one’s negligence is as great, or greater, than the party against whom recovery is sought recovery is denied. Consistent with the interpretation given sec. 895.045, Stats., is Lawver v. Park Falls (1967), 35 Wis. 2d 308, 316, 151 N. W. 2d 68. There, in a concurring opinion, Mr. Justice Hallows, noting that the statute itself “. . . denies recovery to the plaintiff if his contributory negligence is as great as the negligence of the person against whom recovery is sought, . . .” stated:

“. . . The full scope of an apportionment rule could only be attained by amending the statute to remove [the] bar [to recovery]. . . .”

If the decisions of this court, forbidding recovery to a plaintiff who is 50 percent or more contributorily negligent, are based upon the legislature’s intent in creating sec. 895.045, Stats., rather .than upon our own thoughts concerning justice to the parties, the following statement from Zimmerman v. Wisconsin Electric Power Co. (1968), 38 Wis. 2d 626, 633, 634, 157 N. W. 2d 648, is applicable:

“. . . Where a law passed by the legislature has been construed by the courts, legislative acquiescence in or refusal to pass a measure that would defeat the courts’ construction is not an equivocal act. The legislature is presumed to know that in absence of its changing the law, the construction put upon it by the courts will remain unchanged; for the principle of the courts’ decision —legislative intent — -is a historical fact and, hence, unchanging. Thus, when the legislature acquiesces or refuses to change the law, it has acknowledged that the courts’ interpretation of legislative intent is correct. This being so, however, the courts are henceforth constrained not to alter their construction; having correctly determined legislative intent, they have fulfilled their function.”

The appellant has argued that he and the people of Wisconsin come to this court for relief from the harsh doctrine of contributory negligence which it has created. This, however, is a somewhat novel approach in that the public is, unlike the instant case, usually represented in a class action. If, in fact, the people of Wisconsin seek redress from this court’s application of sec. 895.045, Stats., their petition might better be addressed to the legislative branch of government.

The respondents contend that, while the court is here presented with only a given fact situation, a broad change as sought by the appellant would of necessity affect all areas of negligence law. Since a judicial change of the present comparative negligence doctrine would create questions in situations involving multiple defendants, multiple plaintiffs and joint tort-feasors, respondents contend that the legislature, which can conduct extensive study, should initiate any necessary change.

In regard to this contention it should he noted that the legislature in its most recent session has established an interim committee to study problems such as those cited by the respondents.⁹

In order to make the current doctrine of comparative negligence function, it was necessary for this court to foster the ultimate fact verdict. In addition, this court has abolished assumption of risk, gross negligence, governmental, charitable, religious and parental immunities. In light of the efforts extended in making the present doctrine function, it would be prudent to allow the legislature to make any changes following a comprehensive study of the problem.

Such a study could consider respondents’ assertions that collateral benefits available to negligent plaintiffs are ample protection for those more negligent than the persons from whom recovery is sought. The collateral benefits to which respondents refer are kept regardless of plaintiff’s fault and include such things as medical and hospitalization insurance, automobile insurance and social security.

Since poverty can affect defendants as well as plaintiffs, the possibility that given an ultimate fact verdict, which is necessary in implementing any form of comparative negligence, a defendant will always be found partially negligent should be considered. By adopting pure comparative negligence out of a sense of intellectual fairness one might well be eliminating what has been called an arbitrary rule of no recovery, while at the same time creating an arbitrary rule of partial recovery in all cases. If such were the case, pure comparative negligence would render defendants the insurers of any who chose to commence an action.

In short, the legislature should consider whether fairness is preserved by applying the comparative negligence doctrine as we now know it or by applying a doctrine of pure comparative negligence.

Without passing judgment upon the merits of pure comparative negligence as opposed to comparative negligence as it is presently applied in this jurisdiction, we think that the legislature is the body best equipped to adopt the change advocated by the appellant. Such was also the decision of the Illinois Supreme Court in Maki v. Frelk (1968), 40 Ill. 2d 193, 239 N. E. 2d 445, when it was asked .to adopt for general application the doctrine of comparative negligence.

The appellant has requested that if the judgment of the trial court be affirmed he nonetheless be allowed costs on this appeal pursuant to sec. 251.23 (1), Stats. A reading of the statute clearly indicates that costs are allowed in the discretion of this court to the prevailing party. No reference is made of allowing costs to the losing party.

By the Court. — Judgment affirmed.

1 See: Hallows, Comparative Negligence, 19 Federation of Insurance Counsel Quarterly, No. 3 (1969), 71; and Whelan, Comparative Negligence, 1938 Wis. L. Rev. 465.

2 Ch. 173, Laws of 1875.

3 Ch. 242, Laws of 1931.

4 Prosser, Comparative Negligence, 51 Mich. L. Rev. (1953), 465, 493, 494.

5 Campbell, Wisconsin Law Governing Automobile Accidents — Part II, 1962 Wis. L. Rev. 557, 569.

6 Ghiardi, 10 For the Defense, No. 8 (Oct. 1969), 61, 64.

7 Supra, footnote 5, at page 569.

8 Id. at page 569.

9 1969 Senate Joint Resolution 69; 1969 Assembly Joint Resolution 63.