Vroman v. Kempke

• Decision Date: 09 May 1967
• Citation: 150 N.W.2d 423,34 Wis.2d 680
• Parties: Elaine VROMAN, Special Administratrix of the Estate of Pauline Kempke, Plaintiff-Respondent, v. Julius C. KEMPKE and Heritage Mutual Insurance Company, a Wisconsin Corporation, Defendants-Appellants. Elaine VROMAN and Basil Vroman, Plaintiffs-Respondents, v. Julius C. KEMPKE and Heritage Mutual Insurance Company, a Wisconsin corporation, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 423

150 N.W.2d 423

34 Wis.2d 680

Elaine VROMAN, Special Administratrix of the Estate of Pauline Kempke, Plaintiff-Respondent, v. Julius C. KEMPKE and Heritage Mutual Insurance Company, a

Wisconsin Corporation, Defendants-Appellants.

Elaine VROMAN and Basil Vroman, Plaintiffs-Respondents, v. Julius C. KEMPKE and Heritage Mutual Insurance Company, a

Wisconsin corporation, Defendants-Appellants.

Supreme Court of Wisconsin.

May 9, 1967.

Holden & Halvorsen, Sheboygan, for appellants.

Kopish, Miron & Boyle, Marinette, for respondents.

HALLOWS, Justice.

We believe the verdict is so defective as to be void and unable to support a judgment and consequently there must be a reversal and a new trial. It was not proper to include the passive negligence of the two guest-passengers in the same comparative negligence question with the active negligence of the host and thus require the jury to assume the total of the negligence, active and passive, of all the parties constituted 100 percent. Such form of verdict would be correct in the rare case where the negligence of the passengers was active in the sense it contributed with the host's negligence to the accident and thus each party could be considered a tort-feasor as against the other parties. However, that is not the case here. The negligence of each of the passengers was passive in nature and contributed only to her own injuries, not to the accident or to the injuries of the other passengers. Neither plaintiff was a tort-feasor causing harm to others. As used in this context, whether negligence is active or passive is not determined by whether the acts were of commission or omission but whether they were a cause of the accident or only of injuries. The negligence of each passenger went no further than to account for that passenger's presence in the car under the conditions and at the time it went off the road. Since the negligence of one passenger had no relationship to the negligence of the other passenger, the passive negligence of both could not be included in the same comparative-negligence question.

The trial court took the view that sec. 895.045, Stats., which provides that damages allowed in the negligence action shall be diminished in proportion to the amount of negligence attributed to the person recovering, would be satisfied by allowing each plaintiff to recover 75 percent of her damages. The court reasoned that 25 percent was what the jury intended to assess against each passenger as compared to the host driver. But, this is speculation. The jury was not asked to make a comparison between the negligence of the host and the negligence of each passenger separately, so we do not know what percentage of negligence the jury would have assessed to the plaintiff in each case. It can as reasonably be argued that because the jury found the defendant driver twice as negligent as each plaintiff that the conversion of the percentages found on a 100 percent basis in each case would require a finding of 66 2/3 percent negligence on the part of the defendant driver and 33 1/3 percent on the part of each plaintiff. We do not think speculative results should be read into the verdict in an attempt to answer a question which was not asked the jury. Vlasak v. Gifford (1946), 248 Wis. 328, 21 N.W.2d 648.

It is argued the defendants cannot raise this question because they did not object to the form of the verdict. For this proposition the plaintiffs rely on Nimits v. Motor Transport Co. (1948), 253 Wis. 362, 34 N.W.2d 116; Leiske v. Baudhuin Yacht Harbor (1958), 4 Wis.2d 188, 89 N.W.2d 794; and Geis v. Hirth (1966), 32 Wis.2d 580, 146 N.W.2d 459. These cases are not applicable. The defect in the verdict is not formalistic but of substance and renders the verdict void. The problem would not have arisen if the cases had been tried separately; consolidating them for trial only makes the error possible.

The form of a verdict for the purpose of determining contributory negligence was early set forth in Walker v. Kroger Grocery & Baking Co. (1934), 214 Wis. 519, 252 N.W. 721, 92 A.L.R. 680. When 'assumption of risk' was abolished as a defense in host and guest cases, this court pointed out the conditions which would require separate comparative negligence questions. McConville v. State Farm Mut. Auto. Ins. Co. (1962), 15 Wis.2d 374, 113 N.W.2d 14. The difference between active and passive negligence and the problem of the comparison of such negligence was again discussed and further clarified in Theisen v. Milwaukee Automobile Mut. Ins. Co. (1962), 18 Wis.2d 91, 118 N.W.2d 140, 119 N.W.2d 393. Passive negligence of the various plaintiffs cannot be compared in the same question; two separate comparison questions must be submitted, each involving only the negligence of one plaintiff...