Dupuis v. General Cas. Co. of Wis.

• Decision Date: 03 October 1967
• Citation: 152 N.W.2d 884,36 Wis.2d 42
• Parties: Victor DUPUIS, Collette Dupuis and Diana Dupuis, minors, by their Guardian ad Litem, Arlo McKinnon, Plaintiffs-Appellants, v. GENERAL CASUALTY COMPANY OF WISCONSIN, a Wisconsin insurance corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 884

152 N.W.2d 884

36 Wis.2d 42

Victor DUPUIS, Collette Dupuis and Diana Dupuis, minors, by their Guardian ad Litem, Arlo McKinnon Plaintiffs-Appellants, v. GENERAL CASUALTY COMPANY OF WISCONSIN, a Wisconsin insurance corporation, Defendant-Respondent.

Supreme Court of Wisconsin.

Oct. 3, 1967.

Rehearing Denied Nov. 28, 1967.

Arlo A. McKinnon, Milwaukee, guardian ad litem, George P. Kersten, Milwaukee, of counsel, for appellants.

deVries, Hollander & Vlasak, Milwaukee, for respondent.

HANSEN, Justice.

The issues for decision on this appeal are:

(1) Was the prospective abrogation of parent-child tort immunity a proper application of Wisconsin common law regarding the effect of judicial decisions?

(2) Does such limitation violate the Wisconsin constitution as an improper exercise of judicial power?

(3) Does such limitation violate sec. 4, art. IV, and the seventh and fourteenth amendments of the United States constitution?

In Goller v. White, supra, this court abrogated the immunity of a parent in a child-parent tort action, but made the change prospective only, except for the Goller case itself. As to all other cases, the change was 'limited to causes of action arising on or after June 28, 1963.'

The appellants here ask this court to overrule that portion of the Goller decision which would limit the change to causes of action arising on or after June 28, 1963, and in effect make the abrogation of the parental immunity doctrine retroactive.

Inherent in a court declaring that a decision should apply prospectively only is a determination that a compelling judicial reason exists for doing so. In many of the cases previously decided which apply this principle, one of the important compelling judicial reasons which has been considered is what has been referred to as the reliance factor, i.e., that the parties involved had relied upon the immunity doctrine and that to make a decision effective retroactive would manifestly adversely effect great numbers of individuals and institutions that had correctly relied upon their expressed immunity in the conduct of their affairs. Kojis v. Doctors Hospital (1961), 12 Wis.2d 367, 107 N.W.2d 131, 107 N.W.2d 292 (charitable immunity); Holytz v. City of Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618 (municipal immunity); Widell v Holy Trinity Catholic Church (1963), 19 Wis.2d 648, 121 N.W.2d 249 (religious immunity).

In the supplemental opinion in Goller, supra, this court found that there were compelling reasons for making this change in the existing law prospective only. We do not deem it necessary for the court to specifically set forth its reasons for so finding. Also, the determination made in Goller was subsequently passed upon with approval by this court. Ertl v. Ertl (1966), 30 Wis.2d 372, 141 N.W.2d 208.

As declared by the trial court, the elements of order, system and predictability are to be considered in determining that a compelling judicial reason exists for making a court decision prospective only. In the instant case, the reliance factor is also an element. This includes due consideration of the protection of prior rights. The appellants lost nothing as a result of Goller. They simply remain in the same position they were in before the decision. However, even though Goller had been construed to be retroactive, someone else would have found themselves in the same position as appellants only under less fortunate circumstances. In such case the statute of limitations ¹ would undoubtedly control the limitation on such a cause of action. This limitation would generally be one year after the minor attained majority. ² This alone would present almost insurmountable problems of proof in many instances, both from the standpoint of plaintiffs and defendants.

We again affirm that there were and are just and compelling reasons for making this change in existing law prospective only and as of the date stated in Goller, supra.

It has many times been determined that an appellate court has the authority to modify and change the common law. Bielski v. Schulze (1962), 16 Wis.2d 1, 114 N.W.2d 105; State v. Esser (1962), 16 Wis.2d 567, 115 N.W.2d 505, and authorities therein cited. To do so is not contrary to any of the provisions of the Wisconsin constitution.

In Bielski v. Schulze, supra, (16 Wis.2d p. 11, 114 N.W.2d p. 110) it was stated:

'* * * Inherent...