Schilling v. Stockel

Decision Date02 March 1965
Citation26 Wis.2d 525,133 N.W.2d 335
PartiesFred H. SCHILLING, Appellant, v. Bernard STOCKEL et al., Respondents.
CourtWisconsin Supreme Court

Becker & Hughes, Dubuque, Iowa, Walter Cole, Platteville, Frank M. Coyne, Madison, of counsel, for appellants.

Kopp, McKichan & Geyer, Platteville, Henry A. Field, Jr., Madison, of counsel, for respondents.

GORDON, Justice.

The Negligence Problem.

The jury found Mr. Schilling 50 percent negligent for driving with his left elbow protruding from the window next to the driver's seat of his automobile. Upon apeal, it is contended that there could be no negligence on the part of Mr. Schilling because of the extrordinary way that the injury occurred.

If the plaintiff's left arm had been struck by a passing vehicle, the jury would have decided the negligence question, and there probably would have been little difficulty in ordering judgment based on such determination. A few cases in other jurisdictions have taken the view that one whose arm is injured while extended from a motor vehicle is contributorily negligent as a matter of law, but the majority of cases have recognized this to be a question for the jury. Anno. 40 A.L.R.2d 233, 235. There do not appear to be any previous Wisconsin decisions on this point.

The problem which we must determine in this case is whether Mr. Schilling may be held liable; he contends he was not negligent, but we believe that the jury was entitled to find that he was negligent. Nonetheless, we conclude that he may not be held accountable for his negligence for reasons of public policy.

On a number of occasions, this court has considered the problem presented when there is a negligent act accompanied by an extraordinary injury. There was a period in our judicial history when we accepted the view of the New York court of appeals in Palsgraf v. Long Island R. R. Co. (1928). 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253. Under such view, if there was an injury resulting from careless action which was not reasonably apparent to the one so acting, there was deemed to be no breach of duty to the injured party; he was simply outside of the zone of risk. Waube v. Warrington (1935). 216 Wis. 603, 258 N.W. 497.

Commencing in 1952, with Pfeifer v. Standard Gateway Theater, Inc. (1952), 262 Wis. 229, 55 N.W.2d 29, we ruled on a number of cases in which we rejected 'the no-duty formula of Palsgraf and Waube,' to use the phraseology of Longberg v. H. L. Green Co. (1962), 15 Wis.2d 505, 516, 113 N.W.2d 129, 114 N.W.2d 435. See Colla v. Mandella (1957), 1 Wis.2d 594, 598, 85 N.W.2d 345, 64 A.L.R.2d 95, and Klassa v. Milwaukee Gas Light Co. (1956), 273 Wis. 176, 77 N.W.2d 397. Duty is still an important factor in determining whether an act is negligent. E. g. Szep v. Robinson (1963), 20 Wis.2d 284, 121 N.W.2d 753. However, once an act has been found to be negligent, we no longer look to see if there was a duty to the one who was in fact injured.

In the Klassa Case, 273 Wis. at page 182, 77 N.W.2d at page 401, we quoted approvingly the analysis of the Minnesota court in Christianson v. Chicago, St. P., M. & O. R. Co. (1896), 67 Minn. 94, 97, 69 N.W. 640, 641:

'Otherwise expressed, the law is that if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury proximately resulting from it, although he could not have anticipated the particular injury which did happen. Consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act, are natual and proximate; and for such consequences the original wrongdoer is responsible, even though he could not have foreseen the particular results which did follow.'

When the court determines that liability should not attach even though a negligent act has been committed, our decisions since 1952 direct that non-liability be based on considerations of public policy rather than couched in terms of an absence of duty. In Colla v. Mandella, we said, 1 Wis.2d at page 598, 85 N.W.2d at page 348:

'It is recognized by this and other courts that even where the chain of causation is complete and direct, recovery against the negligent tort-feasor may sometimes be denied on grounds of public policy because the injury is too remote from the negligence or too 'wholly out of proportion to the culpability of the negligent tort-feasor', or in retrospect it appears too highly extraordinary that the negligence should have brought about the harm, or because allowance of recovery would place too unreasonable a burden upon users of the highway, or be too likely to open the way to fraudulent claims, or would 'enter a field that has no sensible or just stopping point.' [Citations omitted.] In the Pfeifer case [262 Wis. 229, 55 N.W.2d 29], supra, we stated the essential rationals of the cases of that sort in capsule form as follows (p. 238, 55 N.W.2d p. 34):

"In cases so extreme that it would shock the conscience of society to impose liability, the courts may step in and hold as a matter of law that there is no liability."

The current position of the Wisconsin court regarding duty versus public policy was discussed by Professor Richard V. Campbell in Wisconsin Law Governing Automobile Accidents--Part I, 1962 Wisconsin Law Review 240.

The concept of relieving a negligent actor from liability on grounds of public policy was also recognized by this court in several cases involving the question of intervening cause. Heritage Mut. Ins. Co. v. Sheboygan County (1962), 18 Wis.2d 166, 171, 118 N.W.2d 118; Strahlendorf v. Walgreen Co. (1962), 16 Wis.2d 421, 429, 114 N.W.2d 823; Ryan v. Cameron (1955), 270 Wis. 325, 331, 71 N.W.2d 408.

In examining Mr. Schilling's conduct, it may be tempting to conclude that because he could not reasonably have foreseen the hazard of a falling box, he should not be called negligent. Nevertheless, one who permits his elbow to project from the window of an automobile may be deemed negligent under many circumstances; the fact that the instant injury occurred in an extraordinary fashion should not preclude the trier of fact from concluding that Mr. Schilling committed an act of negligence.

Even though the jury found Mr. Schilling's act to have been negligent, this court is convinced that a desirable public policy requires that he should not be charged with any liability therefor. This is one of those unusual cases in which the judicial determination should be made in favor of Mr. Schilling holding him free of any effect of his negligence. It would be unjust to surcharge Mr. Schilling for his negligence in permitting his elbow to extend from his car window when it was struck by an object emanating from another vehicle which was passing well over on the other side of the highway. This injury could have occurred if he had been driving non-negligently in an open convertible instead of negligently with his elbow protruding from the window of his sedan.

We cannot hold Mr. Schilling's conduct to be non-negligent as a matter of law or hold that there was no duty on his part to use reasonable care. Nevertheless, upon these facts, public policy precludes the attachment of liability for his conduct.

Upon remand, the circuit court should enter judgment in favor of the plaintiff for the full amount of his damages notwithstanding the jury's assessment to him of 50 percent of the negligence.

The Insurance Coverage Problem.

The policy of liability insurance issued to Mr. Stockel by State Farm Mutual, covering his own vehicle, contained the following provision:


'Such insurance as is afforded by this policy under coverages A, B, Division 2 of C and M, D, D-50 F, G and H with respect to the automobile applies to the use of a non-owned automobile by the named insured or a relative, and any other person or organization legally responsible for the use by the named insured or relative of an automobile not owned or hired by such other person or organization.

'Insuring Agreement II does not apply:

'(1) to a non-owned automobile (a) * * * (b) * * * (c) while used in the business or occupation of such named insured or relative except a private passenger automobile operated or occupied by such named insured, relative, or by his private chauffeur or domestic servant.'

State Farm Mutual contends that no coverage is afforded under the foregoing provisions for the operation of a nonowned automobile if the vehicle is being used in the business of the insured and is not a private passenger automobile. However, Mr. Stockel's operation of Mr. Johns' vehicle was covered under the terms of the State Farm policy even though it was used in Mr. Stockel's business if Mr. Johns' vehicle was a private passenger automobile.

Considerable testimony was taken concerning the nature and purpose of the trip. It appears that Mr. Stockel operated a tavern as his business, that the articles he picked up were in the nature of business fixtures and not commodities for sale, and that the commodities he held for sale were delivered by others. It is clear that Mr. Stockel was in no manner engaged in the trucking or hauling business. No issue is raised on appeal as to whether the vehicle was being used in Mr. Stockel's business. We will, therefore, assume without deciding that the vehicle was being 'used in the business of the insured.'

We must decide whether there is any credible evidence, or reasonable inferences therefrom, to sustain the jury's finding that the Studebaker pickup was not 'a type of vehicle other than a 'private passenger automobile' as that phrase is defined and used in the insurance policy issued by State Farm Mutual Automobile Insurance Company to Bernard Stockel.'

The State Farm Mutual policy contains these definitions:

'Private Passenger Automobile--means a private passenger, station wagon...

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