Vincent v. Pabst Brewing Co.

Decision Date05 June 1970
Citation177 N.W.2d 513,47 Wis.2d 120
PartiesDennis 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.
CourtWisconsin 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.

HANLEY, Justice.

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:

'Contributory negligence; when bars recovery. Contributor 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.'

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:

'It is obvious that a slight difference in the proportionate fault may permit a recovery; and there has been much quite justified criticism of a rule under which a plaintiff who is charged with 49 per of the total negligence recovers 51 per cent of his damages, while one who is charged with 50 per cent recovers nothing at all. Actually, or course, juries almost never indulge in such refined hair-splitting, and the criticism really goes to the directed verdict. It has been said that the restriction is necessary to prevent the jury from giving the plaintiff something in every case, even where the defendant may not be negligent at all, or is at fault to the extent of only 1% of the total. But this ignores the fact that the court still has control over an unjustified apportionment, and that a 1% recovery will be insignificant, and less than the nuisance value of the suit. Actually the writer has found no such cases. It appears impossible to justify the rule on any basis except one of pure political compromise. It is difficult to be happy about the Wisconsin cases, or to escape the conclusion that at the cost of many appeals they have succeeded merely in denying apportionment in many cases where it should have been made.' 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.

'The plaintiff's right of recovery should be handled the same way. He should be allowed to recover irrespective of how negligent he is. Of course, where his negligence is high in comparison with that of a defendant or defendants, recovery would be reduced in a large degree. The doctrine which bars recovery by a claimant who is 50 per cent or more negligent is the common law bar rule at a different level. It is a misfit in a system designed to distribute responsibility according to degrees of fault. * * *' 5 (Emphasis supplied.)

Others have favored the Wisconsin position and have said:

'* * * (Pure comparative negligence) would increase claims and litigation. It would put a greater strain on ever increasing insurance rates. It would cause the general public to bear a larger premium for insurance and costs for judicial administration as a result of allowing plaintiffs of greater fault to recover. It would be the first step to a 'no fault' system whereby the wrongdoer is allowed to profit from his own wrong. It is contrary to the basic sense of justice created by the majority of citizens and as such embodied in the historic principles of tort law. * * *' 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:

'* * * If the legislature had never developed a comparative negligence doctrine, our supreme court might feel free to act. However, the right of the claimant is now controlled by the 1931 statute. The change should be made, but it will require action by the Wisconsin Legislature.' 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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