Jacobs v. General Acc. Fire & Life Assur. Corp.
| Decision Date | 06 June 1961 |
| Citation | 14 Wis.2d 1,109 N.W.2d 462,88 A.L.R.2d 1347 |
| Court | Wisconsin Supreme Court |
| Parties | , 88 A.L.R.2d 1347 Claydine JACOBS, a minor, by Gdn. ad litem, et al., Plaintiffs, v. GENERAL ACCIDENT FIRST & LIFE ASSURANCE CORP., Ltd., et al., Respondents, Badger Mutual Ins. Co. et al., Appellants, Willis E. Pickins, Impleaded Defendant. Florine TOLIVER, a minor, by Gdn. ad litem, et al., Plaintiffs, v. GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORP., Ltd., et al., Respondents, Badger Mutual Ins. Co. et al., Appellants, Willis E. Pickins, Impleaded Defendant. |
Actions for damages for personal injuries to Claydine Jacobs and Florine Toliver. The pleadings indicate that the material events occurred May 31, 1959, at and near the intersection of North Green Bay avenue and West Glendale avenue in the city of Milwaukee. Nathaniel Hooker was driving his automobile north on North Green Bay avenue and Joseph Flood was driving west on West Glendale avenue. Claydine, age 17, and Florine, age 18, were passengers in Hooker's car. The Hooker and Flood cars did not collide, but plaintiffs allege that Hooker in avoiding a collision with Flood struck the boulevard parkway, lost control of his car, and then struck a parked car causing injuries to the minor plaintiffs.
Plaintiffs brought action against Hooker, Flood, and their insurers, alleging that both drivers were negligent in several respects.
Flood and his insurer served cross-complaints against Hooker and his insurer, and Willis Pickins, a defendant impleaded on the motion of Hooker and his insurer. They alleged that Hooker and Pickins were grossly negligent in several respects, including engaging in a race with each other, and claiming that if it be determined that plaintiffs' damages resulted from ordinary negligence of Flood and gross negligence of Hooker or Pickins, or both, then Flood and his insurer would be entitled to indemnity from the grossly negligent drivers and their insurers. In the alternative they sought contribution if it be determined that plaintiffs' damages resulted from concurring ordinary negligence of Flood and Hooker or Pickins, or both.
Just before trial, plaintiffs and Hooker and his insurer made a settlement approved by the court insofar as the minor plaintiffs were involved. Plaintiffs gave releases to Hooker and his insurer, which included the following provision: 'They also are released and discharged to the extent of their liability, if any, for contribution, and said claims and causes of action are credited and satisfied on their behalf to the extent of one half ( 1/2) thereof.'
On November 30, 1960, the court entered an order based on the settlements, dismissing the complaints as against Hooker and his insurer, dismissing their cross-complaints against the other defendants, and dismissing the cross-complaint of Flood and his insurer as against Hooker and his insurer. Flood and his insurer appealed from the last mentioned portion of the order.
Hoffman, Cannon, McLaughlin & Herbon, Milwaukee, for appellants, Ellis R. Herbon, Peter W. Bunde, Milwaukee, of counsel.
Arnold, Philipp, Murray & O'Neill, Milwaukee, for defendants-respondents, James P. O'Neill, Milwaukee, of counsel.
Presumably plaintiffs will attempt to establish that negligence of Flood was a cause of the minor plaintiffs' injuries as alleged. If successful, plaintiffs will be entitled to judgment, against appellants, for their damages, reduced by one-half by virtue of the provisions of the releases given to respondents Hooker and his insurer. (No contributory negligence was alleged.) In that event, appellants will not have to pay any more than if respondents had remained in the case and had remained liable for contribution. To the extent that appellants' cross-complaint was based on a claim for contribution, it was properly dismissed. 1 Appellants contend, however, that if they can establish that gross negligence on Hooker's part was a cause of minor plaintiffs' injuries, appellants will be entitled to full indemnity from respondents for any amount appellants are required to pay plaintiffs. Therefore, appellants say, the circuit court erred in dismissing their cross-complaint.
In Martell v. Klingman, 1960, 11 Wis.2d 296, 105 N.W.2d 446, the jury had found causal gross negligence on the part of one driver and causal ordinary negligence on the part of the other. The circuit court denied the second driver's alternative request for judgment of indemnity against the driver guilty of gross negligence. Although asked to review that denial, we did not consider the question because we determined that the finding of causal ordinary negligence was not sustained by the evidence. Assuming that Flood was liable to plaintiffs for causal ordinary negligence and Hooker for causal gross negligence, the same question as to indemnity is now squarely presented.
States differ in their classification and treatment of gross negligence, in their rules for contribution and indemnity, and in their treatment of contributory negligence. All these policy matters bear directly or indirectly upon the question before us.
Where two or more persons sustain a common liability to a plaintiff because the fault of each has combined or concurred in causing damage, one basic problem is the extent to which, and formula by which the ultimate burden of payment ought to be distributed among the persons liable. Wisconsin has followed certain rules:
A person who pays plaintiff a liability arising out of his negligence has a right to contribution from another who sustained a common liability to plaintiff arising out of his negligence. 2
A person whose liability to plaintiff arose from his intentional wrong is not entitled to contribution. 3
Gross negligence falls in the field of intentional wrong, the intent involved being actual or constructive. 4
A person whose liability to plaintiff arose out of his gross negligence is not entitled to contribution from another. 5
This court has stated that a person whose liability to plaintiff arose out of his negligence has a right to contribution from one whose common liability to plaintiff arose out of his gross negligence. 6 This proposition may suggest that the person whose liability to plaintiff arose out of negligence is not entitled to the greater relief of indemnity from one whose liability arose out of gross negligence, but the claim for indemnity under these circumstances has not been made and decided.
Where contribution is permitted, the burden is apportioned equally to all who have common liability to plaintiff (leaving aside any problem resulting from lack of financial responsibility). The sharing of the burden is not adjusted to reflect any comparison of the causal negligence. 7
Since 1931, sec. 331.045, Stats., has provided that if the injured person's negligence is less than that of the defendant, it will not bar recovery, but recovery will be diminished in proportion.
Where defendant is grossly negligent, whether plaintiff is contributorily negligent is immaterial. 8
Some seven years after Wisconsin adopted the doctrine of comparative negligence as between plaintiff and defendant, it was contended before this court that the doctrine had destroyed the reason for the concept of gross negligence, and that the distinction between gross negligence and negligence should be discarded. It was further contended that contribution between the persons owing a common liability to plaintiff should be based upon comparison of negligence. These suggestions were rejected. 9
Appellants urge us to adopt a rule that where the negligence of one tortfeasor and the gross negligence of another concur in causing injury for which there is a common liability to a plaintiff, the negligent tortfeasor may have indemnity against the grossly negligent one. Assuming that both are able to pay, the burden would be imposed entirely on the latter, whether plaintiff chose to collect from him initially or not. It is argued that Flood and Hooker are not in pari delicto, and that the difference in culpability between negligence and gross negligence justifies imposing the full burden of compensating plaintiff on Hooker and his insurer.
Appellants' claim is not entirely illogical, and is supported by the statements of two writers although we do not find decisions squarely in point. If a plaintiff makes the initial collection from the grossly negligent tortfeasor, no part of the burden can be shifted to another under a rule recognized in Wisconsin and previously stated. There is some logic in saying that if the plaintiff makes collection from the negligent tortfeasor, the negligent tortfeasor should be able to produce the same result as in the other case by shifting the entire burden (rather than only one-half of it) to the grossly negligent one. If we grant contribution but deny indemnity in the latter situation, we are leaving it up to the plaintiff to determine whether the negligent tortfeasor will bear one-half, or none of the burden, and whether the grossly negligent tortfeasor will bear one-half, or all of it. It should be pointed out, however, that the situation will not always be presented in the simplest form. If a plaintiff were also causally negligent, under present rules he could recover a larger amount from the grossly negligent tortfeasor than from the negligent tortfeasor. The rule for which appellants contend would also be consistent with the rule which permits a negligent plaintiff to impose the entire burden on a grossly negligent defendant.
Dean Keeton has written that 10 He cites only one case. 11 The decision cited, like the Wisconsin decisions, Wedel and Ayala, supra,...
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