Conklin v. Horner

• Decision Date: 09 April 1968
• Parties: Robert S. CONKLIN, Respondent, v. J. C. HORNER and Nationwide Mutual Insurance Co., a foreign corporation, Appellants. Russell THURLBY, Respondent, v. J. C. HORNER et al., Appellants.
• Court: Wisconsin Supreme Court

Page 579

157 N.W.2d 579

38 Wis.2d 468

Robert S. CONKLIN, Respondent, v. J. C. HORNER and Nationwide Mutual Insurance Co., a foreign

corporation, Appellants.

Russell THURLBY, Respondent, v. J. C. HORNER et al., Appellants.

Supreme Court of Wisconsin.

April 9, 1968.

Heide, Sheldon, Hartley & Thom, Kenosha, for appellants.

Kenney, Korf & Pfeil, Elkhorn, for respondent.

HEFFERNAN, Justice.

The defendants' claim is based upon our decision in Wilcox v. Wilcox (1965), 26 Wis.2d 617, 133 N.W.2d 408, where we abandoned the choice-of-law rule of lex loci delicti and adopted in its stead a more flexible methodology based upon the qualitative analysis of the contacts that one or more jurisdictions might have with the relevant facts. We adopted the general approach of Babcock v. Jackson (1963), 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R.2d 1, and the basic principle of Tentative Draft No. 9, Restatement, ^a Conflicts of Laws 2d, which may be denominated as the 'center of gravity,' 'grouping of contacts,' 'dominant interest,' 'interest oriented.' or 'interest analysis' approach. Zelinger v. State Sand and Gravel Co. (1968), 38 Wis.2d 98, 156 N.W.2d 466. We emphasized that what we adopted was not a rule, but a method of analysis that permitted dissection of the jural bundle constituting a tort and its environment to determine what elements therein were relevant to a reasonable choice of law.

When the Wilcox Case is so viewed, it is apparent that we cannot conclude that, when one set of facts leads logically to the law of the forum, the reverse, or the apparent reverse, of these facts will lead to the opposite conclusion. It has often been remarked in scientific experimentation that the mere observation of a phenomenon in itself constitutes a relevant fact in the history of the phenomenon. The same is true in a choice-of-law problem, for the observation, or to put it in the Wilcox context, the methodology, the anallysis, and the evaluation of contacts can only be made by the forum, and the relationship of the forum to the other facts is a significant factor in the analysis. Thus, the exact factual, mirror image in a conflicts case is substantially an impossibility.

The appellants point out that in Wilcox v. Wilcox the journey of Mr. and Mrs. Wilcox to California commenced in Wisconsin and was intended to continue until their vacation was ended upon their return to Wisconsin. Using one of the favorite cliches of conflicts jurisprudes, we referred to the happening of the accident in Nebraska as 'fortuitous.' We stated the automobile was licensed and garaged in Wisconsin and concluded that the protection afforded by the Nebraska guest statute was designed to benefit Nebraska hosts and the host in Wilcox was a Wisconsin resident. Since the standard of care required by the guest statute of Nebraska would only penalize gross negligence, we concluded that no Nebraska purpose in promoting safety on its highways would be served by applying the lessercare standard of the Nebraska law.

We said later in Heath v. Zellmer (1967), 35 Wis.2d 578, 589, 151 N.W.2d 664, Wilcox was an easy case that revealed no serious conflict with the laws of another jurisdiction. We resolved Wilcox by resorting solely to the law of Wisconsin, the only concerned jurisdiction.

The reverse situation, argued by the appellants--that Illinois is the only seriously concerned jurisdiction--is not, however, to be found under the facts of this case.

Wisconsin is a seriously concerned jurisdiction. While in Wilcox, Nebraska was merely the site of the tort and not the forum, in the instant case, Wisconsin is not only the state where the tortious conduct and the injury occurred--facts that in themselves would compel the use of Wisconsin law under the Bealeian rule of the 1st Restatement--but it is the forum as well. Thus, this court is specially charged as an instrument of the Wisconsin government to further the interests of Wisconsin, if to do so furthers the underlying policies of our law. We are obliged to examine the policies behind the relevant laws to determine qualitatively whether their significance is great enough to warrant finding a serious conflict, which would in turn require making a conscious choice of law, using the 'choice-influencing considerations' adopted in Heath, supra. In Wilcox, supra, page 634 of 26 Wis.2d, page 416 of 133 N.W.2d, we expressed this duty of the forum court as an instrument of state policy as a presumption, 'that the law of the forum should presumptively apply unless it becomes clear that nonforum contacts are of the greater significance.' ¹

It is thus obvious that Wilcox is not controlling. This case is not the reverse of Wilcox, for the place of conduct, the place of injury, and the forum coincide. Accordingly, the whole gamut of the responsibilities of a concerned forum court come into play.

The law of Illinois allows recovery only if the negligence of the host is 'wilful and wanton,' while Wisconsin would allow recovery if the host fails to exercise ordinary care. In Heath we summarized some of the policy factors motivating a guest statute. We stated in Heath, supra, pages 590, 591 of 35 Wis.2d, page 669 of 151 N.W.2d, that such a statute:

'* * * evinces a desire to (a) prevent collusive suits between hosts and guests; (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. 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, page 631, 133 N.W.2d page 415.

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

If Illinois law is used, the Wisconsin policy of compensating those who are injured by ordinary negligence will be defeated. We stated in Heath, at page 601, 151 N.W.2d at page 674, that our compensatory policy extends to '* * * persons whether they be residents of this state or whether they come from another jurisdiction.'

If we accept the Illinois guest law, we accept a legal standard that gives sanction to wrongful conduct. The deterrent effect that it is hoped our negligence laws exercise upon driver misconduct will be defeated by allowing negligent misconduct to go unpunished. This is of particular importance in this case, where the misconduct occurred on a Wisconsin highway.

On the other hand, if Wisconsin law is applied, the Illinois policies of protecting the host and his insurer will be defeated and those whom Illinois would shield will be answerable in damages.

It is thus apparent that a serious conflict arises. Both states have substantial physical contacts with the tort. The place of conduct, injury, and the forum are all in Wisconsin, while the parties and the vehicle came from Illinois and intended to return there. It could arguably be contended that the law of either jurisdiction could apply.

Accordingly, this court is obligated to evaluate the competing laws to determine which is most consonant with the considerations that we have determined to be relevant to the choice of law.

We deem the most reasonable choice to be that suggested by the following 'choice-influencing considerations' adopted in Heath, initially proposed by Professor Robert Leflar ², and first utilized in an appellate decision by Mr. Chief Justice Kenison of New Hampshire. ³

These choice-influencing considerations are:

Predictability of results,

Maintenance of interstate and international order,

Simplification of the judicial task,

Advancement of the forum's governmental interests,

Application of the better rule of law.

As in Heath, supra, and Zelinger, supra, we find the element of predictability inapplicable under these facts. We said in Zelinger, page 470 of 156 N.W.2d:

'* * * the choice influencing consideration of predictability is minimal * * * since parties do not plan to be negligent or to commit torts relying on interspousal or host-guest immunity. * * *'

Moreover, it can hardly be imagined, in these days of tourism and extensive interstate automobile traffic, that a motor vehicle will be confined strictly to the jurisdiction where it is licensed, garaged, or insured. After all, Winnebago county, Illinois, the residence of both the plaintiffs and the defendant, is located on the Wisconsin border. No doubt, frequent automobile travel in the neighboring state was contemplated by all concerned. As the respondents point out, the appellant insurance company is called the 'Nationwide Mutual Insurance Co.,' a name consistent with the wide territorial area of insurance company responsibility, hardly indicative that it relied solely upon local laws for setting its rates. Moreover, this accident occurred prior to Wilcox, when Wisconsin followed the rule of lex loci delicti, and the contemplation of the parties at that time would have been that Wisconsin law would apply if the accident...