Schwenkhoff v. Farmers Mut. Auto. Ins. Co.

• Decision Date: 28 June 1960
• Parties: Vada SCHWENKHOFF et al., Appellants, v. FARMERS MUTUAL AUTOMOBILE INSURANCE CO., et al., Respondents.
• Court: Wisconsin Supreme Court

Page 154

104 N.W.2d 154

11 Wis.2d 97

Vada SCHWENKHOFF et al., Appellants, v. FARMERS MUTUAL AUTOMOBILE INSURANCE CO., et al., Respondents.

Supreme Court of Wisconsin.

June 28, 1960.

Vaughn S. Conway, Kenneth H. Conway, Baraboo, Irving D. Gaines, Milwaukee, of counsel, for appellants.

Langer & Cross, James R. Seering, Dist. Atty., Baraboo, for respondents.

DIETERICH, Justice.

This action comes before us a second time. Schwenkhoff v. Farmers Mut. Automobile Ins. Co., 1959, 6 Wis.2d 44, at pages 45, 46, 93 N.W.2d 867, 868. In that case Mr. Justice Broadfoot stated:

'In Wick v. Wick, 1927, 192 Wis. 260, 212 N.W. 787, 52 A.L.R. 1113, this court determined that an unemancipated minor cannot maintain an action in tort against its parent for personal injury sustained in an automobile accident due to the negligence of the parent. That rule has been consistently followed in this state since that time.'

'A careful reading of the decisions in the cases cited above will show that there has been no relaxation or modification of the rule pronounced in the Wick case. In some of the decisions attention is called to the fact that the Wick decision was based upon public policy; that matters of public policy are to be resolved by the legislature, and the attention of the legislature was directed to the matter in those decisions. The legislature as late as 1957 failed to enact a bill designed to change the rule.'

The 1958-1959 legislature has likewise failed to enact a bill designed to change the rule. This constitutes an expression by the legislature that no change should be made in the rule.

The so-called new allegations contained in the amended complaint recite constitutional provisions which the minor child claims gives her a right to maintain a cause of action against her father's automobile insurance company as well as Sauk County. These issues were considered by this court in its decision of January 2, 1959, when it affirmed the order of the trial court dismissing the complaint as to the minor, Lonette Schwenkhoff, with leave to plead over.

The trial court in its order and judgment dismissed both plaintiffs' causes of action against the defendants Farmers Mutual Automobile Insurance Company and Sauk County.

The plaintiff, Vada Schwenkhoff, has an action against the Farmers Mutual Automobile Insurance Company and Sauk County, and Lonette Schwenkhoff, the minor, has an action against Sauk County. It is our opinion that justice to the parties plaintiff requires the exercise of our discretionary power to reverse that part of the judgment dismissing the complaint of Vada Schwenkhoff against the defendants Farmers Mutual Automobile Insurance Company and Sauk County, a municipality, and the action of Lonette Schwenkhoff by her guardian ad litem, Vaughn S. Conway, against Sauk County, a Wisconsin municipality, defendant, and reinstate the three alternatives contained in the trial court's order dated October 28, 1959, plaintiffs to exercise such option within 30 days from the date of the remittitur.

The judgment in so far as it dismisses the complaint of Lonette Schwenkhoff by her guardian ad litem against the Farmers Mutual Automobile Insurance Company is affirmed. In all other respects the judgment is reversed and the trial court is directed to reinstate the three alternatives of its order dated October 28, 1959, plaintiffs to exercise such option within 30 days from the date of the remittitur.

HALLOWS, J., not participating.

CURRIE, Justice (concurring).

The appellants' brief points out that, while our opinion in the first appeal stated that the contention had been raised that sec. 9, art. I, Wisconsin constitution, which provides that every person is entitled to a certain remedy in the laws for all injuries or wrongs that he may receive in his person, governed the plaintiff minor's right to recover, nevertheless such opinion failed to pass on such issue. Again, although the same contention is vigorously advanced on this second appeal, the opinion of the court fails to advance any reason why such contention is not a meritorious one.

The opinion on the first appeal, after making note of the contentions advanced, stated (6 Wis.2d 44, 46, 93 N.W.2d 867, 868):

'The subject has received the attention of this court in later cases, among which are Zutter v. O'Connell, 200 Wis. 601, 229 N.W. 74; Segall v. Ohio Casualty Co., 224 Wis. 379 272 N.W. 665, 110 A.L.R. 82; and Lasecki v. Kabara, 235...