Fitzgerald v. Meissner & Hicks, Inc.

Decision Date09 April 1968
Citation38 Wis.2d 571,157 N.W.2d 595
CourtWisconsin Supreme Court
PartiesMarie E. FITZGERALD, Appellant, v. MEISSNER & HICKS, INC., a Wisconsin corporation, et al., Respondents.

Goldberg, Previant & Uelmen, Milwaukee, for appellant.

Prosser, Zimmermann, Wiedabach, Koppa & Lane, Milwaukee, James W. Lane, Milwaukee, of counsel, for Meissner & Hicks.

Merten, Connell & Sisolak, James G. Sisolak, Milwaukee, of counsel, for Towne Mfg. Co.

Kluwin, Dunphy, Hankin & Hayes, Milwaukee, for Woerfel Corp.

BEILFUSS, Justice.

The issues presented on this appeal are:

1. Does the rule of law recognizing a wife's right to maintain a cause of action for loss of consortium as set forth in Moran v. Quality Aluminum Casting Co., supra, have prospective or retrospective application?

2. Must a wife claiming loss of consortium, because of an injury to her husband, join her cause of action with an action by her husband for his personal injuries?

The general rule adhered to by this court is the 'Blackstonian Doctrine.' 1 This doctrine provides that a decision which overrules or repudiates an earlier decision is retrospective in operation.

There are, however, exceptions to this rule which have long been recognized by this court:

'While there would seem to be no middle ground in logic, between a complete adherence to or a complete repudiation of the Blackstonian doctrine, the courts nevertheless have established certain exceptions to it for the purpose of mitigating hardships created by its literal application. Without attempting to deal exhaustively with the subject it may be said that, generally speaking, courts adhering to the rule that a later decision operates retrospectively, have created the following exceptions: (1) Where contracts have been entered into in reliance upon a legislative enactment as construed by the earlier decisions. (2) Where a legislative enactment has been declared valid by earlier decisions. and contracts have been entered into in reliance upon the statute and decisions. (Cases cited.) (3) Where a criminal statute, which has received a limited construction by earlier decisions, has been so expanded in meaning by the later overruling decision as to make acts criminal which were not such under the earlier decisions, and the later decision is sought to be applied to one whose acts were committed before the statute was given the enlarged construction.' Laabs v. Tax Comm. (1935), 218 Wis. 414, 417--418, 261 N.W. 404, 405. See also Nickoll v. Racine Cloak & Suit Co. (1927), 194 Wis. 298, 216 N.W. 502; Estate of Bray (1950), 257 Wis. 507, 44 N.W.2d 245, 45 N.W.2d 72; Libby, McNeill & Libby v. Wisconsin Dept. of Taxation (1952), 260 Wis. 551, 51 N.W.2d 796.

Generally, throughout the various American jurisdictions, other exceptions to the Blackstonian doctrine have been utilized. Retroactive operation has been sometimes denied where there has been great reliance on an overruled decision by a substantial number of persons and considerable harm or detriment could result to them. It has also been denied where the purpose of the new ruling cannot be served by retroactivity, and where retroactivity would tend to thrust an excessive burden on the administration of justice. 10 A.L.R.3d 1384. 2

In this jurisdiction the 'reliance' and 'administration of justice' considerations have been recognized. In relatively recent years the court has applied exceptions to the Blackstonian doctrine in the tort area of the law where it has determined a compelling judicial reason exists. The reliance factor has been a most prominent consideration in the prospective only abrogation of the various tort immunities. 3 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 (governmental immunity); Widell v. Holy Trinity Catholic Church (1963), 19 Wis.2d 648, 121 N.W.2d 249 (religious immunity).

Recently in Dupuis v. General Casualty Co. (1967), 36 Wis.2d 42, 45, 152 N.W.2d 884, 885, the court emphasized the importance of the reliance factor in its decisions to limit application of the foregoing list of cases:

'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 affect great numbers of individuals and institutions that had correctly relied upon their expressed immunity in the conduct of their affairs.'

Obviously the court was not suggesting a great number of individuals and institutions had committed torts relying upon the immunity. The reason for the prospective application of these decisions, as mentioned in Kojis, was because the court was concerned about the failure of those affected to purchase insurance coverage in reliance upon the immunity.

The possibility of imposing an excessive burden on the administration of justice was a compelling judicial reason for the limitation placed on the retrospective application of this court's decision in Bielski v. Schulze (1962), 16 Wis.2d 1, 114 N.W.2d 105, which changed our contribution rule and discarded the concept of gross negligence. This is best described by former Mr. Justice THOMAS E. FAIRCHILD in his article in 46 Marquette L.Rev. 1, 15:

'In Bielski the court limited the retrospective application of the change in law with respect to contribution and gross negligence. Here again were elements of law which are ordinarily not relied upon by people who are about to engage in tortious conduct. Yet the court was mindful of the fact that if full retrospective application were given, burdens of further litigation would probably be imposed on litigants and the public in cases where claims had been substantially disposed of by litigation or settlement. Such burdens would seem to be wasteful.'

The compelling judicial reason for the prospective limitation placed on this court's decision abrogating the doctrine of parental immunity, Goller v. White (1963), 20 Wis.2d 402, 122 N.W.2d 193, contained consideration both for the reliance placed on the doctrine and for the affect retroactive operation would have on the administration of justice. Our statute controlling limitations of actions of minors (sec. 893.33) provides that a child has until one year after he attains majority to bring suit for injuries sustained during his minority. Conceivably, retroactive application of Goller could have resulted in suits for injuries sustained by minors for a period of more than 20 years previous to that decision. There was not only concern over the possibility of overburdening the courts with litigation, but also concern for those who in reliance on the immunity doctrine failed to preserve essential evidence. Dupuis v. General Casualty Co., supra.

In the case at bar none of the considerations presented by the foregoing are present to any significant degree. Obviously the contract and criminal considerations are not present. The degree of reliance a tortfeasor might have placed on a wife's inability to recover consortium damages would be insignificant if existent. Certainly the tort was not committed with this in mind and the degree to which it may have influenced the decision whether or not to purchase liability insurance would be less than minimal. Nor will it effect the monetary limits of liability of the insurance carrier.

The respondents vigorously contend the reliance factor is present because insurance companies have relied on this court's position prior to Moran in the calculation of their insurance rates. The degree to which the premiums charged by insurance companies would have differed had a wife always been accorded the right to recover consortium damages is speculative and probably relatively insignificant. In any event, it is not of such proportion to be recognized as a compelling judicial reason.

Mr. Justice FAIRCHILD'S statement setting forth the reasons for this court's retroactive application of its decisions abolishing the defense of assumption of risk 4 is apropos:

'In McConville and Colson, abrogating the defense of...

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    ...barred by the statute of limitations may now be asserted: for the reasons persuasively stated in Fitzgerald v. Meissner & Hicks, Inc. (1968), supra, 38 Wis.2d 571, 157 N.W.2d 595, 598--599, our decision herein is to be given normal retroactive effect within the limits of the statute of limi......
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