Ayala v. Farmers Mut. Auto. Ins. Co.

• Decision Date: 01 May 1956
• Citation: 76 N.W.2d 563,272 Wis. 629
• Court: Wisconsin Supreme Court
• Parties: Ralph AYALA et al., Respondents, v. FARMERS MUTUAL AUTO. INS. CO., Defendant, Western Casualty & Surety Co., Appellant. Lyle FERO, Plaintiff, Norma Fero, Respondent, v. FARMERS MUTUAL AUTO. INS. CO., Defendant, Western Casualty & Surety Co., Impleaded Defendant and Appellant.

Page 563

76 N.W.2d 563

272 Wis. 629

Ralph AYALA et al., Respondents, v. FARMERS MUTUAL AUTO. INS. CO., Defendant, Western Casualty & Surety Co., Appellant.

Lyle FERO, Plaintiff, Norma Fero, Respondent, v. FARMERS MUTUAL AUTO. INS. CO., Defendant, Western Casualty & Surety Co., Impleaded Defendant and Appellant.

Supreme Court of Wisconsin.

May 1, 1956.

Frank L. Morrow, Eau Claire, for appellant.

Devos & Skroch, Neillsville, for Farmers Mut. Auto. Ins. Co.

STEINLE, Justice.

The appellant, Western Casualty and Surety Company contends that under the jury's answers of the first question of the special verdict, gross negligence was established on the part of LaVern Metcalf, and that the trial court erred in no changing the answer to subdivision (d) of question 2 relating to the item of proximate cause in connection with the finding that Metcalf was negligent with respect to operating his automobile while intoxicated. Appellant submits that as a matter of law it is entitled to such change of answer, and maintains that it is entitled to a dismissal of the cross complaint for contribution interposed by Metcalf's carrier, Farmers Mutual Automobile Insurance Company. The issue of gross negligence on Metcalf's part was raised by the replies to the cross complaints.

Ordinary negligence and gross negligence are distinct kinds of negligence, and do not grade into each other. Ordinary negligence lies in the field of inadvertence, and gross negligence in the field of actual or constructive intent to injure. Wedel v. Klein, 1938, 229 Wis. 419, 424, 282 N.W. 606. Gross negligence comprises the commission of the same acts that are involved in ordinary negligence, the only difference being that in gross negligence, those acts are characterized by recklessness, and in ordinary negligence they are characterized by a want of ordinary care. Kuchenreuther v. Chicago, M., St. P. & P. R. Co., 1937, 225 Wis. 613, 615, 616, 272 N.W. 457. To constitute gross negligence there must be either a wilful intent to injure, or that reckless or wanton disregard of the rights and safety of another or his property, and that willingness to inflict injury, which the law deems equivalent to an intent to injury. Bentson v. Brown, 1925, 186 Wis. 629, 203 N.W. 380, 38 A.L.R. 1417. One who operates a motor vehicle negligently while under the influence of liquor may be guilty of gross negligence. In Tomasik v. Lanferman, 1931, 206 Wis. 94, 97, 238 N.W. 857, 858, it was said:

'The evidence was sufficient to warrant the jury in concluding that the defendant was driving the car while he was intoxicated, and, if so, the finding of gross negligence should not be disturbed. We hold that the driving of a car upon our highways by one intoxicated fully responds to all of the elements necessary to constitute gross negligence. One intoxicated is without proper control of all those faculties the exercise of which is necessary to avoid danger to others while driving a car upon a public highway. The driving of a car by one in such condition betrays an absence of any care, and indicates such recklessness and wantonness as evinces an utter disregard of consequences. We would not have it inferred that one is always to be deemed intoxicated when the smell of liquor is upon his breath. The actual degree of intoxication will always be a material consideration, but the coincidence of a breath tainted with liquor on the part of one responsible for a most distressing accident under the circumstances here existing, and whose natural instincts prompt the discourteous retort above quoted, has its implications. It justifies inferences, and, while reasonable men may draw different inferences from the situation, the inference drawn by the jury from the circumstances here presented was entirely reasonable and permissible.'

The element of proximate causation must exist in the case of gross negligence as well as in ordinary negligence in order to make a case for recovery. Natalie v. Chicago & Milwaukee E. R. Co., 1915, 160 Wis. 583, 593, 149 N.W. 697.

It seems to us that questions as raised here with reference to causal gross negligence on the part of Metcalf would have been obviated, had the court employed the method suggested in Wedel v. Klein, supra. There, Mr. Justice Nelson, speaking for the court, pointed out [229 Wis. 419, 282 N.W. 608]:

'The situation which confronted the trial court in this action may arise again in that court or in other courts in this state. So we deem it advisable to suggest the proper course to pursue in such situations. Where a plaintiff alleges a cause of action based on ordinary negligence and one of the defendants, or his insurance carrier, asserts that another defendant was at the time of the accident, guilty of gross negligence, the question of the defendants' negligence should be submitted to the jury in the alternative, accompanied by proper instructions to the effect that if the questions respecting gross negligence be answered 'yes' then in that case the questions respecting ordinary negligence need not be answered and if the questions respecting gross negligence be answered 'no' then the questions respecting ordinary negligence should be answered. Such a verdict, when rendered, will not be subject to the criticism that it is inconsistent and such a verdict will serve as a basis for a judgment in favor of the plaintiff, if the questions are answered in his favor, as well as a basis for a proper judgment respecting contribution between the defendant tort feasors, should both be found guilty of negligence.'

In the case at bar, with reference to subdivision (d) of question 1, the court gave the following instruction:

'Subdivision (d) of Question 1 requires you to determine whether or not LaVern Metcalf was under the influence of liquor or fermented malt beverages. In this connection you are instructed that a statute of this state makes it...