Wilcox v. Wilcox

• Citation: 133 N.W.2d 408,26 Wis.2d 617
• Parties: Ruth E. WILCOX, Appellant, v. Grant W. WILCOX et al., Respondents.
• Decision Date: 05 March 1965
• Court: United States State Supreme Court of Wisconsin

Page 408

133 N.W.2d 408

26 Wis.2d 617

Ruth E. WILCOX, Appellant, v. Grant W. WILCOX et al., Respondents.

Supreme Court of Wisconsin.

March 5, 1965.

John T. Howard, Sun Prairie, for appellant.

Aberg, Bell, Black & Metzner, Madison, for respondents.

HEFFERNAN, Justice.

The facts present a question susceptible to a quick, easy, and long accepted answer: That the law of the place of the tort or injury determines the law to be applied to the case. After long and earnest consideration of the problem, we reject that answer and conclude that the law to be applied in this case on the demurrer is the law of Wisconsin and, accordingly, reverse the trial court and overrule the demurrer.

The problem is an old one. Courts have been seeking for many years to resolve equitably, and with some degree of certainty, the law determining rights of the parties when the wrong has been committed in a country or state outside of the forum.

'The courts of this country came to pass on the question of the law which determined the rights of the parties in case of a foreign tort, long before the automobile days; in fact, quite a while before the horse and buggy days. They took a position which was much simpler than the position which the English courts took later; and they held that the law of the place where the tort took place was the law which fixed the rights of the parties.' ¹

However, Wisconsin was out of step with the nation generally, for as late as 1875 in Anderson v. The Milwaukee & St. Paul Railway Co. (1875), 37 Wis. 321, 322, this court said:

'* * * a personal action for personal injury [is] governed by the lex fori. This is almost too familiar a principle for discussion or authority.'

However, our court in Bain v. Northern Pacific R. Co. (1904), 120 Wis. 412, 417, 98 N.W. 241, 243, overruled Anderson, saying that it was,

'* * * out of harmony with all decided cases in its reasoning * * * [and] opposed to most elementary principles of law * * *.'

As the court in Bain overruled the chain of cases that preceded it, we now overrule Bain and the cases subsequent to it that hold that the proper choice of law rule invariably is lex loci delicti.

We believe that this will permit a reasonable and flexible approach that will allow the use of lex loci delicti, lex fori, or a combination of the two or the law of a third state if it is in the interests of sound legal administration and justice to do so. Instead of the rigidly applied rule of lex loci, we adopt a flexible but, we believe, a practical and workable principle to be used in solving 'choice of law' problems.

The rule that we abandon has long been in disfavor with those who felt that it failed to give due consideration to the jurisprudential facts of life of the mid-twentieth century. Almost 25 years ago, Professor William Herbert Page in referring to the lex loci rule stated:

'The law of the ox-cart and sailing-vessel days has thus persisted through the horse-and-buggy days, into the railroad and street car days, and thence on into the automobile days.' ²

However, the mere fact that a rule is old does not make it bad. In fact, its antiquity is compelling evidence that it must have been reasonably satisfactory, and the rule, though old, should be retained if it continues to serve its purpose. We need, however, only to cite a few examples to see that the application of the rule of lex loci has on occasions produced absurd and unjust results. Consider the case of Walton v. Arabian American Oil Company (2nd Cir., 1956), 233 Fed.2d 541, in which an American citizen employed in Arabia was there injured as the result of the negligent operation of an automobile owned by an American corporation and operated by one of its employees. Suit was brought in an American court. That court held that the law that must be applied is the lex loci, the law of Saudi-Arabia. Though under the laws of either the plaintiff's domicile or the forum, a cause of action was spelled out, the court directed a verdict for the defendant because it could not be shown that a cause of action existed under the laws of Saudi-Arabia. The rule of lex loci may, and will frequently, produce a reasonable result. It did not in that case, and we reject the rule in its Draconic application. ³

The rules of stare decisis attempt to give certainty to our law, so conduct can be planned in light of foreseeable legal consequences. Certainty, however, is less relevant in the law of unintentional torts, where conduct is not planned, then in the law of contracts or, more particularly, in the law of real property. In any event, the rule of lex loci has not produced certainty of result. From the earliest days, hard cases have produced deviations from the rule. New York at an early date refused to hear cases based on foreign law where the result would be contrary to the public policy of that state. Gardner v. Thomas (N.Y., 1817), 14 Johnson's 134. It thus appears that lex loci frequently is not applied where the policy of the forum state is offended, or the conscience of the forum court is shocked. The original Restatement, Conflict of Laws, recognized this fact:

'No action can be maintained upon a cause of action created in another state the enforcement of which is contrary to the strong public policy of the forum.' ⁴

'The lex loci delicti rule leads to uniform treatment of a cause of action only to the extent that none of the possible forums has a strong public policy which would require a different result.' ⁵

Haumschild v. Continental Casualty Co. (1959), 7 Wis.2d 130, 95 N.W.2d 814, is an example of this type of exoneration from an unrealistically rigid rule. We there chose to obviate the public policy conflicts between the law of Wisconsin and the law of California by holding that the question of interspousal immunity was a question of family law and not of tort law. Nevertheless, we said there, at page 138, 95 N.W.2d at page 818:

'* * * this court should adopt the rule that, whenever the courts of this state are confronted with a conflict of laws problem as to which law governs the capacity of one spouse to sue the other in tort, the law to be applied is that of the state of domicile.'

We therein quoted with approval from Koplik v. C. P. Trucking Corp., 27 N.J. 1, 141 A.2d 34, the statement:

'Otherwise, the lex loci will be permitted to interfere seriously with a status and a policy which the state of residence is primarily interested in maintaining.' ⁶

Since the rule of lex loci applied only to matters of substance and not of procedure, courts have, when confronted with an undesirable result, labeled the countervailing foreign law 'procedural,' thus giving lip service to lex loci, but obtaining the desired policy result. Grant v. McAuliffe (1953), 41 Cal.2d 859, 264 P.2d 944, 42 A.L.R.2d 1162.

Bridges and Segal ⁷ summarized court experience with the present rule:

'* * * Courts * * * seek ways to escape such absurd results, and in practice various devices have been utilized to that end. Courts have resorted to characterization of the the action as one of contract rather than tort, or one involving matters of procedure rather than substance in order to apply the lex fori or another law which permits a just result. The place of wrong has been localized in a state with a favorable law and resort has been made to the doctrine of renvoi in order to apply a law other than that of the place of harm. Public policy has been held to require application of the lex fori, as has failure to plead and prove the law of the place of harm.'

It appears therefore that lex loci has not provided a 'fixed star' but rather has been merely a point of departure in hard cases. Willis Reese summarized the predicament of the courts on the predictability phase of of the rule of lex loci:

'* * * although predictability of result is important to the extent that it facilitates the lawyer's task in advising his client and negotiating a settlement, it is not an all-important value in torts since this is an area where persons will rarely, if ever, give advance thought to the legal consequences of their actions. In any event, continued adherence to a bad rule is a high price to pay for predictability. Furthermore, it is doubtful whether a bad rule will provide predictability since the courts will be inclined to engraft exceptions upon it.' ⁸

It seems apparent that the rule as it now exists in Wisconsin has not produced the certainty that stare decisis contemplates. In addition, as we said in Haumschild:

'* * * the rule being discarded is one lying in the field of conflict of laws as applied to torts so that there can hardly have been any action taken by the parties in reliance upon it.' ⁹

The cases that we overrule are the end product of an adherence to the rules of the Restatement, Conflict of Laws (1934). Page 457, sec. 378, provides:

'The law of the place of the wrong determines whether a person has sustained a legal injury.'

The great weight of authority in this country still follows this rule. ¹⁰ Upon a reading of these cases, which on their face offer a deceptively simple solution to a complex problem, we are reminded of the words of Justice Benjamin N. Cardozo, '* * * it is easier to follow the beaten track than it is to clear another.' ¹¹

The path, however, has been departed from in recent cases in other jurisdictions. Cases in which courts have done so are Babcock v. Jackson (1963), 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R2d 1; Griffith v. United Air Lines, Inc. (1964), 416 Pa. 3, 203 A.2d 796; and Kilberg v. Northeast Airlines, Inc. (1961), 9 N.Y.2d 34, 172 N.E.2d 526, 211 N.Y.S.2d 133; Gianni v. Fort Wayne Air Service, Inc. (7th Cir., 1965), 342 F.2d 621; and Watts v. Pioneer Corn Co., Inc. (7th Cir., 1965), 342 F.2d 617. The authors of these decisions, the latter two written by United States District Judge Kenneth Grubb sitting on the Circuit Court of Appeals, and the writers and commentators...