Appellant argues the court should have found the defendant Schulze grossly negligent as a matter of law and denied his insurer contribution. The accident occurred at the intersection of Highway 50 and County Trunk Highway HH in Kenosha county, on July 17, 1959, at about 4 p. m. Prior to the accident Carl Bielski, with his wife Elnora in the front seat and their two children in the back seat, was driving his car in an easterly direction on Highway 50 just west of the intersection with HH, and Schulze was driving his car in a westerly direction on Highway 50 with the purpose of turning left onto HH. When Bielski was about 200 feet from the intersection, he saw Schulze's car with its left-turn signal on. When the Bielski car, traveling between 45-50 m. p. h., was about 70-80 feet from the Schulze car, Schulze, proceeding at a speed of about 10-12 m. p. h., turned left across the eastbound lane of Highway 50 onto HH. Bielski applied his brakes and skidded about 60 feet before colliding with the Schulze car in the eastbound lane of Highway 50, in the southeast quarter of the intersection.
At the time of the accident, the weather was clear and the road dry. The speed limit on Highway 50 was 50 m. p. h. Schulze had been drinking prior to the accident and a test made while he was in the hospital showed an alcohol content
The appellant's second argument is that the making of a sudden left turn by Schulze created an emergency and Bielski was not guilty of causal negligence as to speed. It is true, Bielski was driving within the speed limit, but as he approached the intersection and saw the turn light on Schulze's car, he did not reduce his speed as required by sec. 346.57 (3), Stats. Bielski had 200 feet in which to reduce his speed after he saw Schulze's car approaching with his left-turn signal operating. If he had done so, he could have stopped his automobile sooner when Schulze made his left turn. Bielski left skid marks on a dry pavement of some 60 feet. At the time of the impact, the Schulze car was almost across the eastbound lane of Highway 50 and facing practically south when struck. There was credible evidence for the jury to find causal negligence as to speed on the part of Bielski. Rodenkirch v. Johnson (1960), 9 Wis.2d 245, 101 N.W.2d 83; Ruid v. Davis (1959), 8 Wis.2d 288, 99 N.W.2d 129.
The emergency doctrine has no application because even though Schulze was negligent in turning to the left, Bielski is not entitled to the benefit of the emergency rule as he was likewise negligent. Schmidt v. C. Schlei Dray Line (1959), 7 Wis.2d 374, 97 N.W.2d 194; Wiley v. Fidelity & Casualty Co. (1958), 3 Wis.2d 320, 88 N.W.2d 366; Jewell v. Schmidt (1957), 1 Wis.2d 241, 83 N.W.2d 487.
After considerable study and careful consideration of the first problem and of the consequences of a change or modification of the present rule,
The doctrine of contribution is an equitable doctrine based on natural justice and well recognized in suretyship and other areas of the law before it was adapted to negligence. As applied in contracts, equality was equity, either on an implied promise of such reimbursement or because of the nature of the liability for the debt. See Estate of Ryan (1914), 157 Wis. 576, 147 N. W. 993. Naturally, the pro rata share concept, being part and parcel of the doctrine, was used when the doctrine was applied in the field of negligence. At the time of this transition, negligence was not determined on a comparative basis, and two or more negligent tort-feasors stood in equal relation to each other as codebtors did. Palmer v. Wick & Pulteneytown Steam Shipping Co., Ltd. (1894), A. C. 318.
Wisconsin, at a relatively early date, took the forward step by judicial decision and recognized contribution between negligent tort-feasors in Ellis v. Chicago & N. W. R. Co. (1918), 167 Wis. 392, 167 N. W. 1048. Even today, Wisconsin is among the minority of states which, by court decisions, recognizes the doctrine of contribution in negligence cases,
Wisconsin is unique, perhaps, in possessing devices of procedure and practice which make the adoption of the new rule pragmatically sound as well as realistically just. The use of the special verdict is commonplace;
Sec. 331.045, Stats., must be regarded as an attempt to correlate the amount of recovery to the degree of negligence, at least to a limited extent, and a recognition that justice and fairness demand a comparison of the relative fault of tort-feasors in realistic terms of money, when possible. The history of the equitable basis of the doctrine of
If the doctrine is to do equity, there is no reason in logic or in natural justice why the shares of common liability of joint tort-feasors should not be translated into the percentage of the causal negligence which contributed to the injury. This is merely a refinement of the equitable principle. It is difficult to justify, either on a layman's sense of justice or on natural justice, why a joint tort-feasor who is five percent causally negligent should only recover 50 percent of the amount he paid to the plaintiff from a co-tortfeasor who is 95 percent causally negligent, and conversely why the defendant who is found five percent causally negligent should be required to pay 50 percent of the loss by way of reimbursement to the co-tort-feasor who is 95 percent negligent.
It is argued the rule of equal contribution should not be changed because it is a well-established rule. This specious
"It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."
Law and justice are not necessarily synonymous. The function of law is to attain and maintain justice. No one denies the proposed change is more just in distributing the loss in proportion to the degree of negligence or fault which caused it. See Prosser, The Thomas M. Cooley Lectures, Fourth Series, Selected Topics on the Law of Torts (1953), at pages 61-66. But it is argued the modification of the contribution rule is one for the legislature and not for the courts because, under sec. 13, art. XIV of the constitution, the common law, as was in force in the territory of Wisconsin at the time we became a state, can only be altered or suspended by the legislature. To show that equal contribution between tort-feasors was established prior to 1848, reliance is placed on the English cases of Adamson v. Jarvis (C. P. 1827), 4 Bing. 66, 130 Eng. Rep. 693, Pearson v. Skelton (1836), 1 Mees. & W. 504, and Betts v. Gibbins (K. B. 1834), 2 Ad. & E. 57, 111 Eng. Rep. 22, but no cases are cited to show what the common-law rule was in the territory of Wisconsin. Contribution, as recognized and as we know it today, springs from the case of Palmer v. Wick & Pulteneytown Steam Shipping Co., Ltd., supra. In Coburn v. Harvey (1864), 18 Wis. 156 (*147), the court stated, only that part of the common law which was in existence at
True, the doctrine of contribution existed in the common law, but certainly it is illogical to suppose the Wisconsin constitution forbade the application of that doctrine to other areas of the law. In any event, we cannot adopt the view that sec. 13, art. XIV of our constitution prohibited this court from now adopting common-law principles or of changing them. Inherent in the common law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose.
The argument based on discouraging settlements of lawsuits is worthy of consideration but seems not to be entirely sound. Specific cases which might be settled under the present rule might not be under the new rule; likewise, some cases which cannot be settled under the present rule are more likely to be settled under the new rule. However, no justification for the retention of a rule exists because it is a convenient blackjack to force a settlement on the part of a defendant who is possibly only slightly negligent. The end does not justify the means. Under the new rule, a defendant
We find no insuperable difficulties in using covenants not to sue under the new rule. We see no greater difficulty in giving releases in settling a suit and giving releases with reservations of rights and covenants not to sue than under the present doctrine. In order for a plaintiff to give a release and covenant which will protect the settling tort-feasor from a claim of contribution, the plaintiff must agree to satisfy such percentage of the judgment he ultimately recovers as the settling tort-feasor's causal negligence is determined to be of all the causal negligence of all the co-tort-feasors. The law relating to releases and covenants not to sue is admittedly complex and confusing
By determining the amount of contribution in relation to negligence, it is claimed socially desirable features of liability
The history of the development of gross negligence, its reason for existing, the content of the concept, and the inequitable results and consequences of its application have led us to decide the doctrine of gross negligence, as we know it, should be interred in the limbo of jurisprudence alongside the doctrine of assumption of risk in negligence cases. See McConville v. State Farm Mut. Automobile Ins. Co. (1962), 15 Wis.2d 374, 113 N.W.2d 14. Gross negligence is an anomaly and contradiction in terms,
In the field of contribution and indemnity, the doctrine of gross negligence has worked inequitably. One guilty of gross negligence can recover no contribution from his joint tort-feasor who is guilty only of ordinary negligence, and a tort-feasor guilty of ordinary negligence can only recover one half of the loss from one guilty of gross negligence whose negligence obviously contributed substantially more to the loss in comparison with ordinary negligence. See Jacobs v. General Accident Fire & Life Assur. Corp. (1961), 14 Wis.2d 1, 109 N.W.2d 462; Ayala v. Farmers Mut. Automobile Ins. Co., supra. Thus, whether one guilty of ordinary negligence bore a pro rata part of the loss or none of it or the one guilty of gross negligence bore all the loss or only a pro rata share was not determined by any principle of equity and justice but by the happenstance of which tort-feasor the plaintiff chose to sue and recover from. Upon the principle it was not inequitable for each joint tort-feasor with common liability to bear part of the loss, we held in Jacobs v. General Accident Fire & Life Assur. Corp., supra, a defendant ordinarily negligent could not recover on the theory of indemnity from his co-tort-feasor guilty of gross negligence—a result quite different from cases involving contributory versus gross negligence. The irreconcilable rules applying to gross negligence in contribution, indemnity, and contributory-negligence cases cannot stand together upon equitable principles. Only by
The argument is made the doctrine of gross negligence is needed to deter such conduct, but it is doubtful that potential tort-feasors were aware of the rule and, if they were, whether they reflected upon it or their conduct was deterred by it.
We are aware of some problems arising in the field of anticipatory releases and exculpatory clauses and in the area where tort immunity may still exist, but the remedy, if any is needed, lies in the field of law applicable to that subject matter rather than to retain the illogical concept of gross
It is argued that if the doctrine of gross negligence is abolished, an uninsured tort-feasor can discharge the judgment in bankruptcy but could not if based upon gross negligence. This argument is only partly correct. True, under sec. 17 of the Bankruptcy Act (11 U. S. C. sec. 35), a discharge does not affect the liability for wilful and malicious injury to the person or property of another. But assuming its correctness, the relatively few cases which would involve an uninsured insolvent tort-feasor who might have been found grossly negligent are not sufficient to overcome the justice and benefits of abolishing the doctrine.
The new rules shall apply generally whether the cause of action has heretofore arisen or not except that they shall not apply in the following situations: (1) Where a judgment based upon the old rules has been entered and no motion to vacate it has been made or appeal taken before this date; (2) where verdicts have been rendered sufficient to dispose of the case under the former rules but where application of the new rules would require a new trial not required for other reasons; (3) when settlements have been effected with one co-tort-feasor in such manner as would sufficiently protect him from liability for contribution under the former rules.
By the Court.—Judgment appealed from is reversed, with directions to enter a judgment in favor of Edwin Fred Schulze and the Farmers Insurance Exchange for $1,250, which is five percent of $25,000, against Mutual Service Casualty Insurance Company.