Chase v. Am. Cartage Co.
| Decision Date | 07 February 1922 |
| Citation | 176 Wis. 235,186 N.W. 598 |
| Parties | CHASE v. AMERICAN CARTAGE CO., INC. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; Gustav G. Gehrz, Judge.
Action by William R. Chase, administrator, against the American Cartage Company, Inc. Judgment of dismissal, and plaintiff appeals. Reversed and remanded, with directions to enter judgment for plaintiff.
Action for damages resulting from death caused by an automobile collision which occurred March 8, 1920. The jury found defendant negligent; that its negligence was the proximate cause of the death of the deceased; damages in the sum of $3,390; and also that the driver of the deceased was guilty of negligence proximately contributing to produce her death. Upon such special verdict the trial court on December 20, 1920, entered judgment for the defendant dismissing the action upon the merits with costs. The plaintiff appealed.Raymond J. Cannon and Cannon, Bancroft & Waldron, all of Milwaukee (M. L. Lueck, of Beaver Dam, of counsel), for appellant.
Dale C. Shockley and Edgar P. Ettenheim, both of Milwaukee, for respondent.
[1] The only question presented by the appeal is whether the rule that the negligence of a driver would not be imputed to a mere gratuitous passenger stated in Reiter v. Grober, 173 Wis. 493, 181 N. W. 739, decided March 8, 1921, should be applied. Counsel for the defendant claim it should not be because the announcement of the change of rule made in Reiter v. Grober was obiter dictum and cannot be relied upon as a binding decision; that the judgment when entered by the circuit court was correct; that it became the law of the case; and that it would be unjust to change it now. They have subdivided their argument into many more propositions, but the above statement, we think, fairly presents their substantial claims.
[2][3] It is true that it was not necessary in order to decide the issue in Reiter v. Grober to go as far as to reverse the case of Prideaux v. Mineral Point, 43 Wis. 513, 28 Am. Rep. 558, and it was so stated. While it is a rule of general application that the binding force of a decision is coextensive with the facts upon which it is founded, it is nevertheless also true that, when a court of last resort takes up a correlated subject-matter stating that it intends to decide it, and does so, such decision is not a mere obiter dictum. It is at least a judicial dictum. Buchner v. Chi., Mil. & N. W. Ry. Co., 60 Wis. 264, 19 N. W. 56. In Reiter v. Grober we were asked to apply the rule of Prideaux v. Mineral Point and to extend it to include the situation then presented. The court therefore had up for consideration the validity of the rule in Prideaux v. Mineral Point as well as its extension, for when a rule of law is applied the court must assume its validity even if it does not expressly state it. So when we were asked to take the rule in Prideaux v. Mineral Point and extend it, we were asked to recognize or continue the rule and extend it to the situation before us. In answer we said we will not only not extend the rule, but we will not hereafter recognize it as a valid or just rule. True, we could have said we will not extend it and that would have decided Reiter v. Grober. But, having the rule before us as we did for recognition and extension, we deemed it an opportune time to say that we would neither recognize nor extend the rule.
[4] That a subject-matter so considered is more than a mere obiter dictum see cases cited in Hall v. Madison, 128 Wis. 145, 107 N. W. 31. That they appear in a dissenting opinion does not militate against their worth upon the point now under consideration. The federal Supreme Court states the rule thus:
“Where there are two grounds, upon either of which the judgment of the trial court can be rested, and the appellate court sustains both, the ruling on neither is obiter, but each is the judgment of the court and of equal validity with the other.” Union P. R. Co. v. Mason City & Ft. D. R. Co., 199 U. S. 160, 166, 26 Sup. Ct. 19, 20 (50 L. Ed. 134).
In Reiter v. Grober the case could have been disposed of as it was either by overruling the doctrine as to imputed negligence or by refusing to extend it. We said we not only refused to extend the doctrine, but that we expressly overruled it. We decided it on two grounds either of which effectively affirmed the judgment below. A further statement in the federal case above cited is here applicable to the effect that--
“Whenever a question fairly arises in the course of a trial, and there is a distinct decision on that question, the ruling of the court in respect thereto can, in no just sense, be called a mere dictum.” 199 U. S. 166, 26 Sup. Ct. 20, 50 L. Ed. 134.
See, also, Florida Cent. R. Co., v. Schutte, 103 U. S. 118, 26 L. Ed. 327. Thus it frequently happens that a...
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