Olson v. Augsberger

• Decision Date: 27 November 1962
• Citation: 18 Wis.2d 197,118 N.W.2d 194
• Parties: Elizabeth OLSON and Richard Olson, her husband, and Eleanore Augsberger, Plaintiffs-Respondents, v. Frederick John AUGSBERGER and Farmers Mutual Automobile Insurance Company, Defendants-Respondents, and Chicago, Milwaukee, St. Paul and Pacific Railroad Company, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 194

118 N.W.2d 194

18 Wis.2d 197

Elizabeth OLSON and Richard Olson, her husband, and Eleanore Augsberger, Plaintiffs-Respondents, v. Frederick John AUGSBERGER and Farmers Mutual Automobile Insurance Company, Defendants-Respondents, and Chicago, Milwaukee, St. Paul and Pacific Railroad Company Defendant-Appellant.

Supreme Court of Wisconsin.

Nov. 27, 1962.

Bender, Trump, Davidson & Godfrey, Richard R. Robinson, Milwaukee, of counsel, for defendant-appellant.

Humke, Poole & Axel, Sheboygan, for defendants-respondents.

HALLOWS, Justice.

At the outset we point out this appeal is properly taken only from the judgment. The order for judgment and the order denying the motion to review and modify the judgment are not appealable orders. ¹ In Bielski v. Schulze, supra, we determined the amount of contribution between joint tortfeasors having a common liability was to be determined in proportion to the causal negligence attributable to each in the verdict. The new rule was applied retrospectively except in three classes of cases. Generally when a court overrules a doctrine of common law, the new rule of the decision applies retroactively. Will of Allis (1959), 6 Wis.2d 1, 9, 94 N.W.2d 226, 69 A.L.R.2d 1128; Estate of Bray (1950), 257 Wis. 507, 509, 44 N.W.2d 245, 45 N.W.2d 72; 14 Am.Jur., Courts, p. 345, sec. 130. See Theisen v. Milwaukee Auto. Mut. Ins. Co. (1962), Wis. 118 N.W.2d 140, which applied retroactively the rule of McConville v. State Farm Mut. Auto. Ins. Co. (1962), 15 Wis.2d 374, 113 N.W.2d 14. However, this court can limit the retrospective operation of a decision and make it exclusively prospective or applicable to the case and condition its prospective operation. Kojis v. Doctors Hospital (1961), 12 Wis.2d 367, 373, 107 N.W.2d 131, 292; Great Northern R. Co. v. Sunburst Oil & Ref. Co. (1932), 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360. The basis of the court's choice in our latest cases is well set forth in the recent law review article of Justice Thomas E. Fairchild. ² The rule-making power of the court under sec. 251.18, Stats., has no application to the power of the court to determine the effective date or the conditions of the application of a new rule of substantive law. There is no merit in the argument of the appellant that the limitations on the retrospective operation of Bielski are invalid.

The appellant further contends it is entitled to proportional contribution because this case does not come within any of the three exceptions of the application of the rule retrospectively and also because it properly raised the issue in the trial court and preserved its rights on appeal. The only exception in the retrospective application of the rule which might bar the appellant from its benefits is the language in Biclski providing the rule would not apply 'where a judgment based upon the old rules had been entered and no motion to vacate it has been made or appeal taken before this date' [March 6, 1962]. The purpose of this exception was to prevent a judgment settled on the old rule from being disturbed on appeal solely on the ground of the new rule. The exception contemplated a judgment was settled upon the old rule unless a motion to vacate it had been made or an appeal had been taken on some ground other than the new rule which had not yet been announced. A judgment which was under attack at the time the Bielski decision was rendered is entitled to receive the benefits of the new rule unless it came under the other two exceptions. In Longberg v. H. L. Green Co. (1962), 15 Wis.2d 505, 114 N.W.2d 435...