Marier v. Memorial Rescue Service, Inc.

• Decision Date: 25 May 1973
• Docket Number: No. 43322,43322
• Citation: 296 Minn. 242,207 N.W.2d 706
• Parties: Warren MARIER, Appellant, v. MEMORIAL RESCUE SERVICE, INC., et al., Respondents, Robert Hughes, Respondent.
• Court: Minnesota Supreme Court

Page 706

207 N.W.2d 706

296 Minn. 242

Warren MARIER, Appellant, v. MEMORIAL RESCUE SERVICE, INC., et al., Respondents Robert Hughes, Respondent.

No. 43322.

Supreme Court of Minnesota.

May 25, 1973.

Syllabus by the Court

1. Under Minnesota's comparative negligence statute, plaintiff can have recovery against a defendant only if plaintiff's negligence is less than that of the defendant against whom recovery is sought.

2. Minnesota's comparative negligence statute, under certain fact situations, permits comparison of plaintiff's negligence to the aggregate of defendants' negligence, but does not permit the aggregating of the negligence of defendants whose liability to plaintiff is premised on concurrent negligence.

3. Any change in the statutory doctrine of comparative negligence is properly a function of the legislature.

Alfred R. Sundberg, James R. McClure, St. Paul, for appellant.

David W. Nord, Collins & Buckley, Eugene D. Buckley, St. Paul, for Memorial Rescue Serv. Inc., and others.

Murnane, Murnane, Battis & Conlin, and Thomas J. Battis, St. Paul, for Robert Hughes.

Heard before KNUTSON, C.J., and KELLY, TODD, and OLSON, JJ.

TODD, Justice.

Plaintiff appeals from a denial of his motion for a new trial. Plaintiff's claim arose out of an intersection accident, and the jury found plaintiff and two defendants each 33 1/3 percent negligent. The trial court ordered judgment for defendants. We affirm.

Pursuant to Rule 110.04, Rules of Civil Appellate Procedure, no record of this case was reproduced. The following is a statement of the case approved by the district court:

'This was an action for personal injuries including total disability for a period and permanent partial disability thereafter arising out of an accident where the plaintiff, driving easterly on a construction by-pass of State Highway No. 8, was struck by an ambulance going westerly on said highway and making a left turn into the plaintiff. The ambulance was meeting a highway department truck for directions to the scene of another accident. The defendant driver of the truck directed the ambulance to left turn, and the ambulance made the left turn without (the driver) seeing the plaintiff.

The defendant driver of the truck admitted that he directed the left turn, and the defendant ambulance driver and assistant both admitted they made the left turn without seeing the plaintiff.

'The jury found a verdict for the plaintiff in the sum of $15,850.00 under a special verdict which found plaintiff 33 1/3% Negligent, defendant ambulance (driver) 33 1/3% Negligent, and defendant truck driver 33 1/3% Negligent. The court denied plaintiff's motion to find the defendants jointly and severally liable for concurrent negligence in the proportion of 66 2/3% As against plaintiff's 33 1/3%. The court also refused to certify the case to the Supreme Court as important and doubtful.

'Because of the financial inability of the plaintiff to accept the further burden of the cost of a transcript of testimony, the printing of a record and brief, and the refusal of both defendants to agree to a full statement of facts, plaintiff is obliged to limit the issues on the appeal to the construction of Minnesota statute MSA 604.01 and the challenge of the lower court's determination herein.'

The sole issue presented on appeal is construction of our comparative negligence statute, Minn.St. 604.01, ¹ which provides in part:

'Subdivision 1. Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering. * * * When there are two or more persons who are jointly liable, contributions to awards shall be in proportion to the percentage of negligence attributable to each, provided, however, that each shall remain jointly and severally liable for the whole award.'

1. Plaintiff contends that since the negligence of the defendants in this case was concurrent he is entitled to have his percentage of negligence compared to the combined percentages of negligence of the defendants. Defendants assert that since the negligence of plaintiff equals that of each of the defendants no liability attaches.

Our comparative negligence statute was based on Wis.Stat.1969, § 895.045, the predecessor of which was adopted in 1931. We have held that, when we adopt a statute from another state which has been interpreted by the highest court of that state, we normally take the interpretation with the statute up to the time of the adoption of our statute. Olson v. Hartwig, 288 Minn. 375, 377, 180 N.W.2d 870, 872 (1970).

In construing § 895.045, prior to its amendment in 1971, the Wisconsin Supreme Court held on numerous occasions that, in order for the plaintiff to recover against any defendant in a multiple-party action, his negligence must be less than that of the party against whom recovery is sought. Chille v. Howell, 34 Wis.2d 491, 149 N.W.2d 600 (1967); Walker v. Kroger Grocery & Baking Co., 214 Wis. 519, 252 N.W. 721, 92 A.L.R. 680 (1934).

Plaintiff claims that the Wisconsin court has created exceptions to this rule. Cases which appear to support plaintiff's position are Severson v. City of Beloit, 42 Wis.2d 559, 167 N.W.2d 258 (1969); Reber v. Hanson, 260 Wis. 632, 51 N.W.2d 505 (1952); and Schwenn v. Loraine Hotel Co., 14 Wis.2d 601, 111 N.W.2d 495 (1961). Examination of these cases indicates that they do not support the position advocated by plaintiff. In the Severson case, the parties stipulated at trial that the defendants' negligence would be submitted as a single question, and the Wisconsin Supreme Court held that the failure to request a special verdict on the issue of each defendant's...