Vincent v. Pabst Brewing Co.
Decision Date | 05 June 1970 |
Citation | 177 N.W.2d 513,47 Wis.2d 120 |
Parties | Dennis E. VINCENT, a minor, by his guardian ad litem, David Walther, Plaintiff-Appellant, Ronald B. Vincent, Plaintiff, v. PABST BREWING CO., a domestic corp., et al., Respondents. |
Court | Wisconsin Supreme Court |
The appeal is from the judgment on the verdict in an action for damages sustained in a pedestrian-automobile accident.
On June 1, 1966, eight-year-old Dennis E. Vincent was struck by an automobile while crossing the street at 1548 South Sixth Street, Milwaukee, Wisconsin. At the time of the accident the automobile was driven by Charles H. Nye who was performing services for his employer, the Pabst Brewing Company.
Following the accident, an action was commenced against Nye, the Pabst Brewing Company and its insurer, Aetna Casualty and Surety Company. In a trial to a jury a verdict was returned finding the plaintiff 60 percent negligent and Nye 40 percent negligent. The plaintiff, by his guardian ad litem, David L. Walther, now appeals from the judgment entered upon the verdict.
David L. Walther, guardian ad litem, Milwaukee, Thomas A. Plein, Milwaukee, of counsel, for plaintiff-appellant.
Wickham, Borgelt, Skogstad & Powell, Milwaukee, Reuben W. Peterson, Jr., and George W. Greene, Milwaukee, of counsel, for respondents.
Ins. Trial Counsel of Wis., Madison, Conrad H. Johnson, Madison, of counsel, amicus curiae.
American Trial Lawyers Assn., Geo. P. Kersten, Milwaukee, of counsel, amicus curiae.
Two related questions are presented on this appeal:
(1) Should the doctrine of pure comparative negligence be adopted in Wisconsin; and, if so.
(2) Should such adoption be accomplished by this court rather than by the legislature?
Under the current law in Wisconsin, the appellant can recover nothing from the respondents because his negligence exceeded that of the respondent Nye. Under pure comparative negligence, however, appellant would recover 40 percent of his damages, for pure comparative negligence never bars recovery. Instead, it merely reduces the recoverable amount of one's damages by the percentage of his negligence. In considering the appellant's contention that a doctrine of pure comparative negligence should be adopted, the Wisconsin history of both contributory negligence and comparative negligence should be briefly noted. 1
The doctrine of contributory negligence as a complete bar to recovery was originally adopted by the Engligh courts in Butter-field v. Forrester (1809), 11 East. 60, 103 Eng.Rep. 926. This doctrine then spread to this country and was adopted by this court in Chamberlain v. Milwaukee & Mississippi RR. Co. (1858), 7 Wis. 425, 431, and in Dressler v. Davis (1958), 7 Wis. 527, 531. In order to avoid the harshness of the doctrine of contributory negligence, which had its origin in an era of economic individualism, the Wisconsin legislature in 1875 created what exists in our present statutes as sec. 192.50, Stats. 2 This section, however, is limited in its application to railroads and their employees. It was not until 1931 3 that our legislature passed, for general application, what is now sec. 895.045, Stats.
In its present form sec. 895.045, Stats., reads:
Noting that contributory negligence is a court-adopted doctrine, the appellant contends that such doctrine has only been partially eliminated by sec. 895.045, Stats. In other words, the appellant contends that the statute eliminates the doctrine where the negligence of the defendant exceeds that of the plaintiff, but that the courtadopted doctrine remains in effect where the negligence of the plaintiff equals or exceeds that of the defendant. Thus, according to the appellant, it is not sec. 895.045, Stats., but the common law doctrine of contributory negligence (to the extent it was left unchanged by the statute) which bars his recovery. If, in fact, such were the case, this court, of course, would have authority to change the common law.
As to the relative merits of pure comparative negligence and the Wisconsin application of comparative negligence, much has been written. In reference to the Wisconsin application of partial comparative negligence, Professor Prosser has stated:
4 (Emphasis supplied.)
It has also been stated that since Bielski v. Schulze (1962), 16 Wis.2d 1, 114 N.W.2d 105, has established pure comparative negligence in situations wherein multiple defendants are seeking contribution among themselves, there is no justification for not applying pure comparative negligence between plaintiffs and defendants.
5 * * *'(Emphasis supplied.)
Others have favored the Wisconsin position and have said:
6 * * *'
Although considerable disagreement exists as to whether a doctrine of pure comparative negligence should be adopted in Wisconsin, there has been considerable agreement as to the ability or propriety of this court's initiating such adoption. One writer has said that the Wisconsin doctrine of comparative negligence '* * * is a statutory rule and the court is helpless. * * *' 7 The writer continues by stating:
8
In support of the contention that this court has authority to adopt pure comparative negligence, it has been argued in the amicus curiae brief of the American Trial Lawyers Association that the legislature, in enacting sec. 895.045, Stats., did not preempt the field of comparative negligence and thereby preclude further development by this court. Analogy is then drawn to this court's decision in Holytz v. Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618, wherein the common law doctrine of governmental immunity for tort liability was abolished, despite previous legislative activity which had removed immunity in limited circumstances. See: Farmers Mut. Automobile Ins. Co. v. Gast (1962), 17 Wis.2d 344, 117 N.W.2d 347, for further discussion of legislative preemption.
This court, however, has consistently interpreted the statute itself as having created the bar to recovery. The statute says: 'Contributory negligence shall not bar recovery * * * if such (negligence of the party seeking recovery is) not as great as the negligence of the person against whom recovery is sought, * * *' The natural inference is that if one's negligence is as great, or greater, than the party against whom recovery is sought recovery is denied. Consistent with the interpretation given sec. 895.045, Stats., is Lawver v. Park Falls (1967), 35 Wis.2d 308, 316, 151 N.W.2d 68, 72. There, in a concurring opinion, Mr. Justice Hallows, noting that the statute itself '* * * denies recovery to the plaintiff if his contributory negligence is as great as the negligence of the person against whom recovery is sought, * * *' stated:
'* * * The full scope of an apportionment rule could only be attained by amending the statute to remove (the) bar (to recovery). * * *'
If the decisions of this court, forbidding recovery to a plaintiff who is 50 percent or...
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