Breunig v. American Family Ins. Co.

• Decision Date: 03 February 1970
• Docket Number: No. 43,43
• Citation: 45 Wis.2d 536,173 N.W.2d 619
• Parties: , 49 A.L.R.3d 179 Phillip A. BREUNIG, Respondent, v. AMERICAN FAMILY INSURANCE COMPANY, a Wisconsin insurance corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 619

173 N.W.2d 619

45 Wis.2d 536, 49 A.L.R.3d 179

Phillip A. BREUNIG, Respondent, v. AMERICAN FAMILY INSURANCE COMPANY, a Wisconsin insurance corporation, Appellant.

No. 43.

Supreme Court of Wisconsin.

Feb. 3, 1970.

This is an action by Phillip A. Breunig to recover damages for personal injuries which he received when his truck was struck by an automobile driven by Erma Veith and insured by the defendant American Family Insurance Company (Insurance Company). The accident happened about 7:00 o'clock in the morning of January 28, 1966, on highway 19 a mile west of Sun Prairie, while Mrs. Veith was returning home from taking her husband to work. Mrs. Veith's car was proceeding west in the eastbound lane and struck the left side of the plaintiff's car near its rear end while Breunig was attempting to get off the road to his right and avoid a head-on collision.

The Insurance Company alleged Erma Veith was not negligent because just prior to the collision she suddenly and without warning was seized with a mental aberration or delusion which rendered her unable to operate the automobile with her conscious mind.

The jury returned a verdict finding her causally negligent on the theory she had knowledge or forewarning of her mental delusions or disability. The jury also found Breunig's damages to be $10,000. The court, on motions after verdict, reduced the amount of damages to $7,000, approved the verdict's finding of negligence, and gave Breunig the option of a new trial or the lower amount of damages. Breunig elected to accept the lower amount and judgment was accordingly entered. The defendant insurance company appeals.

Aberg, Bell, Blake & Metzner, Madison, for appellant.

Oldenburg & Lent, Madison, for respondent.

HALLOWS, Chief Justice.

There is no question that Erma Veith was subject at the time of the accident to an insane delusion which directly affected her ability to operate her car in an ordinarily prudent manner and caused the accident. The specific question considered by the jury under the negligence inquiry was whether she had such foreknowledge of her susceptibility to such a mental aberration, delusion or hallucination as to make her negligent in driving a car at all under such conditions.

At the trial Erma Veith testified she could not remember all the circumstances of the accident and this was confirmed by her psychiatrist who testified this loss of memory was due to his treatment of Erma Veith for her mental illness. This expert also testified to what Erma Veith had told him but could no longer recall. The evidence established that Mrs. Veith, while returning home after taking her husband to work, saw a white light on the back of a car ahead of her. She followed this light for three or four blocks. Mrs. Veith did not remember anything else except landing in a field, lying on the side of the road and people talking. She recalled awaking in the hospital.

The psychiatrist testified Mrs. Veith told him she was driving on a road when she believed that God was taking ahold of the steering wheel and was directing her car. She saw the truck coming and stepped on the gas in order to become air-borne because she knew she could fly because Batman does it. To her surprise she was not air-borne before striking the truck but after the impact she was flying.

Actually, Mrs. Veith's car continued west on highway 19 for about a mile. The road was straight for this distance and then made a gradual turn to the right. At this turn her car left the road in a straight line, negotiated a deep ditch and came to rest in a cornfield. When a traffic officer came to the car to investigate the accident, he found Mrs. Veith sitting behind the wheel looking off into space. He could not get a statement of any kind from her. She was taken to the Methodist Hospital and later transferred to the psychiatric ward of the Madison General Hospital.

The psychiatrist testified Erma Veith was suffering from 'schizophrenic reaction, paranoid type, acute.' ¹ He stated that from the time Mrs. Veith commenced following the car with the white light and ending with the stopping of her vehicle in the cornfield, she was not able to operate the vehicle with her conscious mind and that she had no knowledge or forewarning that such illness or disability would likely occur.

The Insurance Company argues Erma Veith was not negligent as a matter of law because there is no evidence upon which the jury could find that she had knowledge or warning or should have reasonably foreseen that she might be subject to a mental delusion which would suddenly cause her to lose control of the car. Plaintiff argues there was such evidence of forewarning and also suggests Erma Veith should be liable because insanity should not be a defense in negligence cases.

The case was tried on the theory that some forms of insanity are a defense to and preclude liability for negligence under the doctrine of Theisen v. Milwaukee Automobile Mut. Ins. Co. (1962), 18 Wis.2d 91, 118 N.W.2d 140, 119 N.W.2d 393. We agree. Not all types of insanity vitiate responsibility for a negligent tort. The question of liability in every case must depend upon the kind and nature of the insanity. The effect of the mental illness or mental hallucinations or disorder must be such as to affect the person's ability to understand and appreciate the duty which rests upon him to drive his car with ordinary care, or if the insanity does not affect such understanding and appreciation, it must affect his ability to control his car in an ordinarily prudent manner. And in addition, there must be an absence of notice of forewarning to the person that he may be suddenly subject to such a type of insanity or mental illness.

In Theisen we recognized one was not negligent if he was unable to conform his conduct through no fault of his own but held a sleeping driver negligent as a matter of law because one is always given conscious warnings of drowsiness and if a person does not heed such warnings and continues to drive his car, he is negligent for continuing to drive under such conditions. But we distinguished those exceptional cases of loss of consciousness resulting from injury inflicted by an outside force, or fainting, or heart attack, or epileptic seizure, or other illness which suddenly incapacitates the driver of an automobile when the occurrence of such disability is not attended with sufficient warning or should not have been reasonably foreseen.

Theisen followed Eleason v. Western Casualty & Surety Co. (1948), 254 Wis. 134, 135 N.W.2d 301, and Wisconsin Natural Gas Co. v. Employers Mutual Liability Ins. Co. (1953), 263 Wis. 633, 58 N.W.2d 424. In Eleason we held the driver, an epileptic, possessed knowledge that he was likely to have a seizure and therefore was negligent in driving a car and responsible for the accident occurring while he had an epileptic seizure. In Wisconsin Natural Gas Co. v. Employers Mutual Liability Ins. Co., supra, the sleeping driver possessed knowledge that he was likely to fall asleep and his attempts to stay awake were not sufficient to relieve him of negligence because it was within his control to take effective means to stay awake or cease driving.

There are authorities which generally hold insanity is not a defense in tort cases except for intentional torts. Restatement of Torts, 2d Ed., p. 16, sec. 283B, and appendix (1966) and cases cited therein. These cases rest on the historical view of strict liability without regard to the fault of the individual. Prosser, in his Law of Torts, 3d Ed. p. 1028, states this view is a historical survival which originated in the dictum in Weaver v. Ward (1616), Hob. 134, 80 English Reports 284, when the action of trespass still rested upon strict liability. He points out that when the modern law developed to the point of holding the defendant liable for negligence, the dictum was repeated in some cases. ²

The policy basis of holding a permanently insane person liable for his tort is: (1) Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it; (2) to induce those interested in the estate of the insane person (if he has one) to restrain and control him; and (3) the fear an insanity defense would lead to false claims of insanity to avoid liability. These three grounds were mentioned in the In re Guardianship of Meyer (1935), 218 Wis. 381, 261 N.W. 211, where a farm hand who was insane set fire to his employer's barn. The insurance company paid the loss and filed a claim against the estate of the insane person and was allowed to recover.

In an earlier Wisconsin case involving arson, the same view was taken. Karow v. Continental Ins. Co. (1883), 57 Wis. 56, 64, 15 N.W. 27, 30. But it was said in Karow that an insane person cannot be said to be negligent. The cases holding an insane person liable for his torts have generally dealt with pre-existing insanity of a permanent nature and the question here presented was neither discussed nor decided. The plaintiff cites Sforza v. Green Bus Lines (1934), 150 Misc. 180, 268 N.Y.S. 446; Shapiro v. Tchernowitz (1956), 3 Misc.2d 617, 115 N.Y.S.2d 1011; Johnson v. Lombotte (1961), 147 Colo. 203, 363 P.2d 165, for holding insanity is not a defense in negligence cases. Sforza and Shapiro are New York trial court decisions which do not discuss the question here presented and are unconvincing. In Johnson, the defendant was under observation by order of the county court and was being treated in a hospital for 'chronic schizophrenic state of paranoid type.' On the day in question, she wanted to leave the hospital and escaped therefrom and found an automobile standing on a street with its motor running a few blocks from the hospital. She got into the car and drove off, having little or no control of the car. She soon collided with the plaintiff. Later she was adjudged mentally incompetent and committed to a state hospital. Johnson is not a...