Heath v. Zellmer

Decision Date30 June 1967
Citation35 Wis.2d 578,151 N.W.2d 664
PartiesLaVera HEATH et al., Plaintiffs-Respondents, v. John E. ZELLMER et al., Defendants-Respondents, Eileen R. Meyer et al., Interpleaded Defendants-Appellants.
CourtWisconsin Supreme Court

Schlotthauer, Jenswold & Studt, Madison, for appellants.

Kaftan, Kaftan & Kaftan, Green Bay, and Bernard U. Roels, De Pere, for plaintiffs respondents.

Henry P. Hughes, Oshkosh, for defendants respondents.

HEFFERNAN, Justice.

The plaintiffs, the defendants, and the interpleaded defendants all concur that Wilcox v. Wilcox (1965), 26 Wis.2d 617, 133 N.W.2d 408, governs the disposition of this case. The appellant, the host-driver of the Indiana car, takes the view that this is the reverse case of Wilcox and, since in Wilcox the Wisconsin host-guest relationship formed in Wisconsin remained significant, that the host-guest relationship in this case formed in Indiana is of controlling significance and must lead inexorably to the application of Indiana law. This view, however, takes into consideration only a single facet of the Wilcox Case and overlooks the analysis therein that demonstrated that the single contact with Nebraska, that the accident occurred there, was not relevant to any significant Nebraska policy and there was, in fact, no relevant conflict between the policies of Nebraska and the policies of Wisconsin.

In Wilcox we determined to put aside the 'vested-rights' theory that eventually became incorporated and enunciated in the first Restatement's rule that substantive rights and liabilites arising out of a tortious act are to be resolved and determined by the law of the place where the tort occurred. In Wilcox we sought to outline a methodology that would rationally determine the rights of the parties and lead to the choice of law that had the most significant relationship to the facts. We therein cautioned that the methodology proposed was no rule of thumb--no vade mecum--that could be slapped down upon any set of facts and would reveal unequivocally and without some cerebration the proper choice of law to be followed.

In Wilcox, as here, Wisconsin was the forum, but the place of the accident was Nebraska, which allowed recovery from a host only when there was proof of gross negligence. Wisconsin, of course, permits recovery for ordinary negligence. In that case the plaintiff and defendant were husband and wife (although this marital status played no part in the Wilcox rationale) and were Wisconsin residents whose host-guest relationship commenced in Wisconsin and was intended to terminate in Wisconsin upon completion of their round trip to California. Their automobile was licensed and garaged here, and the insurance was issued here. The fact that their one-car accident occurred in Nebraska was termed 'fortuitous.' On the basis of these facts we held that Nebraska's interest was so minimal that we need not be concerned with the policy behind its guest statute. We concluded that the umbrella of protection it afforded was to Nebraska hosts and insurers, and there were none in Wilcox. We also concluded that Nebraska's interest in furtherance of safety on its highways would not be served, since to apply Nebraska law would be to permit a lesser standard of care. An analysis of the Nebraska contacts led to the conclusion that no policy of Nebraska would be furthered by the application of Nebraska law. Wilcox was the easy case, whose facts showed only one contact with Nebraska--the fortuitous happening of a one-car automobile accident there. In effect, we found no meaningful conflict with Nebraska law.

To determine in this case whether a true conflict exists between the law of Indiana and Wisconsin, 3 the contacts of the event with these jurisdictions must be determined and the relevance of those contacts examined in light of the interests of the competing jurisdictions (although it should be borne in mind that what we seek at the end of our analysis is a choice of law or rule rather than a choice of jurisdictions, for the law of more than one jurisdiction could conceivably be applicable). Wilcox v. Wilcox, supra, page 631, 133 N.W.2d 408.

Indiana had the following substantial contacts with the case: The trip began in Indiana, and it was expected that it would end there. The relationship between Eileen Meyer and her mother and sister arose in Indiana and was expected to continue until their return there. The automobile used was owned by an Indiana resident (Eileen's father), and it was registered and insured there with an Indiana-domiciled company.

Wisconsin contacts are also formidable. The accident occurred in Wisconsin. Under the traditional lex loci rule this alone would have sufficed to carry the day for the plaintiffs-respondents and the interpleaded defendants-appellants. The driver of the other automobile (a party to this suit) was a Wisconsin resident driving a Wisconsin-garaged-and-insured automobile. Moreover, the Meyer car, on its way back to Indiana after a stay in Wisconsin of several days, had three additional passengers, all residents of Wisconsin. It also appears from the pleadings that Eileen Meyer, who at the time of the accident was an Ohio resident, remained in Wisconsin thereafter and at the time of the suit had become a resident of Wisconsin.

Even a cursory inspection of the facts without any qualitative weighing, as Wilcox obliges us to indulge in, reveals a striking dissimilarity with the facts of Wilcox. If a qualitative analysis of these contacts, in light of the purposes or policies underlying the pertinent law of Indiana and Wisconsin, reveals a true conflict, this court is then obliged to make a choice of which law to apply.

Indiana's law requiring 'wanton or wilful' conduct as a condition of liability to a guest envinces a desire to (a) prevent collusive suits between hosts and guests; 4 (b) prevent the ingratitude of the guest who sues his kindly host (bites the hand that feeds him); (c) protect the host from being obligated for more than he bargained for (a) judgment when he only offered a ride; and (d) keep intact a fund (the host's assets) so it can be reached by other parties to the accident whose claims are assumed to have some vague moral priority over the claims of the gratuitous guest. 5 It is clear that the policy of the Indiana statute is to shield the host, and therefore his insurer, from some liability. The lower standard of conduct (a lesser duty) required in the host-guest situation is for the benefit of defendants.

The law of Wisconsin imposes liability in the host-guest situation when there is proof of ordinary negligence:

'It is the policy of our law to provide compensation to a person when he has been negligently injured. The reasons for this policy are manifold. Among them are that the wrongdoer should bear the cost of an injury because of his causal fault and not the injured party (unless he is equally at fault) or the state authorities or those who have furnished medical services, and that to the extent that damages in a negligence action are punitive, it is hoped that the burden of a judgment may deter like conduct by others.' Wilcox v. Wilcox, supra, p. 631, 133 N.W.2d p. 415.

The purposes of the Wisconsin law are compensatory, admonitory, and deterrent.

While, arguably, the Indiana law seeks to serve those same purposes, it does not do so in the host-guest situation unless the conduct is 'wanton or wilful.' It is perhaps hyperbole to say that Indiana law encourages a host to subject his guest to all risks short of conduct that is 'wanton or wilful,' but it is nonetheless true that under Indiana law the host who is merely guilty of ordinary negligence is relieved of all obligation to compensate his injured guest victims. In Wisconsin the law in its compensatory attributes is brought into play by the finding of ordinary negligence in a host-guest relationship.

On the basis of this analysis it is apparent that the application of either Indiana or Wisconsin law arguably could be justified. Each state has numerous significant contacts with the tort and its consequences, and each has important policies that it believes will be furthered by the application of its law. In this case the choice of law is outcome-determinative of the case. In the event Indiana law is used, the guests who traveled with Miss Meyer from Indiana will not be compensated by their negligent host, and the deterrent factor that Wisconsin law attributes to damages for negligent conduct will not be imposed upon the driver. Moreover, the Wisconsin driver of the second car, if found negligent in causing the injuries to the passengers in the Meyer car, will not be entitled to contribution from the other negligent tortfeasor since no common liability would then exist. If Indiana law is applied, those policies favored in the Wisconsin law will suffer. In the event Wisconsin law is applied, the kindly host and his Indiana insurer, the objects of the bounty of the Indiana guest law, will suffer or at least be answerable in damages.

Thus, a true conflict arises in the instant case unlike the situation in Wilcox, where only Wisconsin had any real interest in the outcome of the case and only its policies could be furthered or impaired by the choice of law made. In Wilcox no important Nebraska policy was involved.

Resolving the conflict--the choice-of-law process

Various methods have been proposed for determining the choice of law. In Wilcox, supra, 26 Wis.2d page 634, 133 N.W.2d page 416, we stated:

'We start with the premise that if the forum state is concerned it will not favor the application of a rule of law repugnant to its own policies, and that the law of the forum should presumptively apply unless it becomes clear that non forum contacts are of the greater significance.'

While this statement gives some guide in the choice of law, it does not resolve that choice when the greater significance of foreign contacts is not absolutely...

To continue reading

Request your trial
108 cases
  • Reminga v. United States
    • United States
    • U.S. District Court — Western District of Michigan
    • January 19, 1978
    ...Robert Leflar's five choice-influencing factors. Decker v. Fox River Tractor Co., 324 F.Supp. 1089 (E.D.Wis. 1971); Heath v. Zellmer, 35 Wis.2d 578, 151 N.W.2d 664 (1967); Wilcox v. Wilcox, 26 Wis.2d 617, 133 N.W.2d 408 In Hunker v. Royal Indemnity Co., 57 Wis.2d 588, 204 N.W.2d 897 (1973),......
  • Abendschein v. Farrell
    • United States
    • Court of Appeal of Michigan — District of US
    • July 20, 1968
    ...courts have declared that the forum should try to select the law which reaches the soundest result: Accord: Heath v. Zellmer (1967), 35 Wis.2d 578, 151 N.W.2d 664, 673. A commentator recently suggested that the effort to achieve the result attainable under the 'better law' explains some of ......
  • Hutchinson v. Proxmire, 76-C-257.
    • United States
    • U.S. District Court — Western District of Wisconsin
    • April 22, 1977
    ...Application of the better rule of law." Conklin v. Horner, 38 Wis.2d 468, 478, 157 N.W.2d 579, 583 (1968); accord, Heath v. Zellmer, 35 Wis.2d 578, 151 N.W.2d 664 (1967). It is not certain what law Wisconsin would apply in this case, using these "choice-influencing" considerations; but it a......
  • Bauer v. Armslist, LLC
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • November 19, 2021
    ...of substantive or procedural law is to be preferred.’ " State Farm, 251 Wis.2d at 591, 641 N.W.2d 662 (quoting Heath v. Zellmer, 35 Wis. 2d 578, 597, 151 N.W.2d 664 (Wis. 1967) ). The court can easily and simply apply Wisconsin law, the law of the forum state. See Drinkwater v. Am. Family M......
  • Request a trial to view additional results
1 firm's commentaries
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT