151 N.W.2d 664 (Wis. 1967), Heath v. Zellmer

Citation:151 N.W.2d 664, 35 Wis.2d 578
Opinion Judge:The opinion of the court was delivered by: Heffernan
Party Name:LaVera HEATH et al., Plaintiffs-Respondents, v. John E. ZELLMER et al., Defendants-Respondents, Eileen R. Meyer et al., Interpleaded Defendants-Appellants.
Attorney:For the defendants-appellants there was a brief by Schlotthauer, Jenswold & Studt and Robert R. Studt, all of Madison, and oral argument by John F. Jenswold.
Case Date:June 30, 1967
Court:Supreme Court of Wisconsin

Page 664

151 N.W.2d 664 (Wis. 1967)

35 Wis.2d 578

LaVera HEATH et al., Plaintiffs-Respondents,


John E. ZELLMER et al., Defendants-Respondents,

Eileen R. Meyer et al., Interpleaded Defendants-Appellants.

Supreme Court of Wisconsin.

June 30, 1967.

Page 665

[Copyrighted Material Omitted]

Page 666

This is an appeal from an order denying the motion of the interpleaded defendants for summary judgment. The interpleaded defendant Eileen R. Meyer, hereinafter referred to as the host, contends that the law of Indiana, which requires that a host's conduct be 'wanton or wilful' if a guest is to recover, is applicable to this case and that, since the only allegation of the complaint is of ordinary negligence, the suit must be dismissed. The trial court held that Wisconsin law was applicable and denied the motion.

The facts are these. Eileen R. Meyer, a resident of Ohio, had for approximately three months prior to the Wisconsin trip used her father's car for pleasure and business in the state of Ohio. A few days before the accident, while visiting her parents in Indiana, it was decided that Eileen, her mother, Louisa Meyer, and her sister, LaVera Heath, would drive to Wrightstown, Wisconsin, to visit relatives there. Louisa Meyer and LaVera[35 Wis.2d 586] Heath

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were residents of Indiana. The automobile owned by Eileen's father was licensed in Indiana and was insured there with an Indiana-domiciled insurance company. It was this automobile, driven by Eileen at the time of the accident, that was used for the trip. They stayed at Wrightstown for a few days and were returning to Indiana, with three of their Wisconsin relatives as passengers, and while still in Wisconsin their automobile collided with an automobile owned and operated by John E. Zellmer, a Wisconsin resident. He was insured by an Illinois-domiciled liability insurer licensed to do business in Wisconsin, where, in fact, the insurance contract was issued.

Louisa Meyer and LaVera Heath commenced an action against Zellmer, and subsequently Zellmer interpleaded the host-driver, Eileen R. Meyer, asserting claim for contribution in the event that she was also found to be causally negligent for injuries to Louisa Meyer and LaVera Heath. Issue was joined on March 25, 1964, and apparently the case was awaiting trial when this court on March 5, 1965, issued its mandate in Wilcox v. Wilcox (1965), 26 Wis.2d 617, 133 N.W.2d 408. On the basis of that holding the interpleaded defendants concluded that the law of Wisconsin (lex loci delicti) was no longer applicable and, in the belief that te law to be applied was Indiana law requiring that the conduct of the host be 'wanton or wilful,' 1 moved for summary judgment. This appeal is from the denial of that order.

[35 Wis.2d 587] Is there a true conflict?

'Neanderthal, J.

'Why did our civilized neighbors * * * fashion this barbaric law? We are told it was done from a misguided purpose to protect insurance companies from the frauds of insured motorists--who otherwise presumably would have had great sport hurtling their cars off high cliffs so their passenger friends might collect easy money as personal injury damages. * * *

'So be it. But in 1963 (the New York court) met and slew the statutory dragon when it sought to level its fiery blast against New Yorkers in an Ontario accident in the celebrated case of Babcock v. Jackson. Ever since Babcock, choice of law in automobile guest cases has most certainly been an art, not a science * * *. Later decisions of this court have explained and re-explained Babcock, have analyzed and re-analyzed its ratio, have distinguished and dissected its facts, have worded and reworded its rule; and still the mystery grows. Its Delphic phrases delight the scholars, who disagree as to what it means but agree that they adore it.

'The bar and lower court judges are flabbergasted by it. A * * * lawyer with a guest statute case has more need of an ouija board today than a copy of Shepard's citations.

'The case at bar is a fine example of the progress ushered in by the new era of enlightenment. In conflicts days of yore we would have had no trouble at all deciding it. Inasmuch as the accident occurred well within the boundaries of (the state), which gladly allows hurt passengers to recover from driver hosts for simple negligence, we would have invoked the primitive rule of the Ice Age of conflicts and would have intoned:

"An injured passenger's right to sue in negligence depends on whether such a

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right was given in the state wherein he was hurt." 2

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.

[35 Wis.2d 588] 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 [35 Wis.2d 589] 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

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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 [35 Wis.2d 590] 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...

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