Opinion
March 5, 1956 —
May 1, 1956.
APPEALS from judgments of the circuit court for Clark county: BRUCE F. BEILFUSS, Circuit Judge. Reversed.
For the appellants there was a brief and oral argument by Frank L. Morrow of Eau Claire.
For the respondent there was a brief by Devos Skroch of Neillsville, and oral argument by A. L. Devos.
Involved are two actions, one of which is entitled Ralph Ayala, Betty Ayala (his wife), and Vicky Ann Ayala, an infant, by her guardian ad litem, plaintiffs, against Farmers Mutual Automobile Insurance Company and the Western Casualty Surety Company, defendants, and Lyle Fero, impleaded defendant, and was commenced on November 3, 1954. The other action is entitled Lyle Fero and Norma Fero (his wife), plaintiffs, against Farmers Mutual Automobile Insurance Company, defendant, and the Western Casualty Surety Company, impleaded defendant, and was commenced on November 19, 1954. The actions were tried together before the court and a jury. Separate judgments were rendered. The appeals are from the judgments and were taken by Western Casualty Surety Company. Lyle Fero has not appealed.
The plaintiffs in each action sought damages sustained by them in an automobile collision that occurred July 8, 1954, at about 8:15 p. m., on an east-west town road located two miles south, and about one-half mile east of the village of Granton in Clark county. The collision occurred near the crest of a hill. Involved was a Pontiac automobile owned and being driven at the time by Lyle Fero of Granton, and a Plymouth automobile owned by Leon Metcalf of Neillsville, and being driven with his consent by his son, LaVern Metcalf. The Western Casualty Surety Company carried insurance on the Fero car. Farmers Mutual Automobile Insurance Company carried coverage on the Metcalf car. Riding as gratuitous guests with Lyle Fero were Norma Fero, his wife, and the Ayalas of Chicago. LaVern Metcalf was the sole occupant of the car that he was driving. The Fero car was traveling east and the Metcalf car was traveling west. There is a private driveway leading to a farm situated on the south side of the road at the crest of the hill and the collision occurred 68 to 150 feet west of the center of that driveway.
In the action commenced by Lyle Fero and his wife, the complaint charged that LaVern Metcalf had been negligent in respect to position on the highway, lookout, management and control, and speed. Farmers Mutual Automobile Insurance Company interposed an answer and cross complaint. In the answer, the claim of negligence against Metcalf was denied. The cross complaint charged negligence of Lyle Fero with respect to position on the highway, lookout, management and control, speed, and as to yielding the right of way. The Western Casualty Surety Company was impleaded as a defendant. By way of reply to the cross complaint the negligence of Lyle Fero was denied. As a separate defense it was alleged that LaVern Metcalf had been guilty of gross negligence in that he unlawfully operated his automobile while under the influence of intoxicating liquor.
In the action commenced by the Ayalas, the defendant, Farmers Mutual Automobile Insurance Company, made answer to the complaint denying negligence on the part of LaVern Metcalf. It also cross-complained against the Western Casualty Surety Company charging negligence of Lyle Fero in respects identical with those in the Fero action. It demanded contribution in the event of a determination that Lyle Fero and LaVern Metcalf were jointly negligent. A reply to the cross complaint was interposed by the Western Casualty Surety Company in which gross negligence as to LaVern Metcalf was charged on the same basis as asserted in the Fero action.
The special verdict of the jury, in so far as material to the issues raised upon appeal, read as follows:
"Special Verdict
"Question 1. At or immediately prior to the collision in question was LaVern Metcalf negligent in the operation of his vehicle in any of the following respects:
"(a) As to position on the highway? Answer: Yes.
"(b) As to management and control? Answer: Yes.
"(c) As to lookout? Answer: Yes.
"(d) As to operating his vehicle while under the influence of intoxicating liquor or beverage? Answer: Yes.
"Question 2. If you answer any subdivision of question No. 1 `Yes,' then answer the corresponding subdivisions of this question. Was such negligence as found a cause of the collision?
"(a) As to position on the highway? Answer: Yes.
"(b) As to management and control? Answer: Yes.
"(c) As to lookout? Answer: Yes.
"(d) As to operating his vehicle while under the influence of intoxicating liquor or beverage? Answer: No.
"Question 3. At or immediately prior to the collision in question was Lyle Fero negligent in the operation of his vehicle in any of the following respects:
"(a) As to position on the highway? Answer: Yes.
"(b) As to management and control? Answer: Yes.
"Question 4. If you answer any subdivision of question No. 3 `Yes,' then answer the corresponding subdivisions of this question. Was such negligence as found a cause of the collision?
"(a) As to position on the highway? Answer: Yes.
"(b) As to management and control? Answer: Yes.
"Question 5. If by your answers to questions No. 1, 2, 3, and 4 you have found that both drivers were negligent and that the negligence of each was a cause of the collision, then answer the question: What portion of the total negligence do you attribute to:
"(a) To LaVern Metcalf? Answer: 60 per cent.
"(b) To Lyle Fero? Answer: 40 per cent."
Various motions after verdict were presented by the parties and determined by the court. Western Casualty Surety Company and Lyle Fero inter alia moved the court to change the answer of subdivision (d) of question 2 from "No" to "Yes" as a matter of law; to change the answers to subdivisions (a) and (b) of question 3 from "Yes" to "No;" to change the answers to subdivisions (a) and (b) of question 4 from "Yes" to "No;" to change the answer of subdivision (a) of question 5 from "60 per cent" to "100 per cent;" to change the answer of subdivision (b) of question 5 from "40 per cent" to "No per cent;" and also moved upon the verdict as so amended, to dismiss the cross complaint of Farmers Mutual Automobile Insurance Company for contribution. In the alternative, it moved for a new trial inter alia because of error in the form of the questions of the special verdict. The court denied the motions. In the Ayala action, judgment in favor of each of the plaintiffs was rendered against both Insurance Companies. In the Fero action, judgment was rendered in favor of Lyle Fero against Farmers Mutual Automobile Insurance Company for 60 per cent of the damage sustained by him. Judgment was also rendered in favor of Norma Fero against both Insurance Companies for the full amount of damages as determined by the jury.
At the trial evidence presented on behalf of the Feros and the Ayalas indicated that the traveled portion of the highway near the place of collision was 22 feet wide with shoulders not over two feet wide that were not in good condition; that Fero was traveling about 35 miles per hour, on his own right side of the road, and that he observed the reflection of the lights of the Metcalf car before it came over the crest of the hill; that when Metcalf cleared the crest of the hill, Fero observed that Metcalf was driving on the wrong side of the road. When the cars were about 150 feet apart, Fero swung his car to the left (north) side of the road, while Metcalf pulled farther to his left (south) side of the road. After the collision, Fero's car was partly on the north side of the road, while Metcalf's car, which had gone through a fence, was in a field south of the road; that the vehicles were about 35 feet apart when they came to rest; that tracks produced by the Metcalf car appeared on the south side of the road for a distance of 186 feet to the point of impact; that the Metcalf car left skid marks 68 feet long to the east when traveling up the hill, and 45 feet long going toward the east. A traffic officer talked to Metcalf after the accident. Metcalf told the officer that he was traveling in the center of the highway, and that Fero was coming right at him. The traffic officer testified that he smelled alcohol on Metcalf's breath and that Metcalf talked incoherently. The officer arrested Metcalf. On July 9, 1954, Metcalf was charged under a county traffic ordinance with unlawful operation of a motor vehicle upon a highway while under the influence of intoxicating liquor. On July 10, 1954, in justice court at Neillsville, Metcalf pleaded guilty to the charge of driving while intoxicated. He chose not to be represented by counsel although he had been advised of his right to be so represented. He had also been advised that a finding of guilt would result in the loss of his driver's license. He was told that a urine test, taken on the night of the collision, indicated that he had been intoxicated.
The evidence presented on behalf of LaVern Metcalf at the trial indicated that the was twenty-three years of age and lived at Neillsville; that he had been driving cars since he was sixteen or seventeen years of age; that on July 8, 1954, he was in the service of the United States navy, and was at home on furlough; that shortly before noon of that day he drove the Plymouth car from his father's home to a garage in Neillsville and left it there for repairs. He called for the car at 5:30 p. m. From 1 p. m. until 5:30 p. m. he walked around town, picked up some dry cleaning, and spent time in a pool hall. He had "a beer" with his father at about 2 p. m. At 3 p. m. he had a sandwich and some coffee. After 5:30 p. m. he drove around town for a short time and then to the farm of Amery Opelt, located southeast of Neillsville. He visited there for an hour and a half or longer and drank two cans of beer. He was homeward bound and had already traveled four or five miles from Opelt's farm when the collision occurred.
Metcalf testified that as he approached the site of the collision he was traveling uphill 35 to 40 miles per hour, in the center of the highway. He noticed the Pontiac proceeding in its left (north) lane and it appeared to be swinging so as to make a wide turn into the driveway on the south side of the road. The Pontiac car was 70 to 80 feet from him when he first observed it. Metcalf swung his own car to the left (south side) to get around the Pontiac. He applied his brakes when 20 to 30 feet from the other car. Immediately before the collision the Pontiac car was facing southeast. No claim for damages was made by Metcalf or his father in these actions.
Metcalf testified that he pleaded guilty to the complaint in justice court for the reason that he was due back at his home port in Norfolk, Virginia, on the morning of July 13, 1954, and did not want to wait around and try to get an extension of his furlough. He decided to pay a fine and have it over. He testified that he was not intoxicated at the time of the accident, but was somewhat shaken and shocked immediately thereafter. He maintained that in entering the plea of guilty in justice court, he had not been influenced by the fact that he had been informed that the test showed that he was intoxicated. A report of the urinalysis test was not presented at the trial in the cause at bar. No medical evidence as to Metcalf's condition was presented.
The appellant, Western Casualty Surety Company, contends that under the jury's answers to the first question of the special verdict, gross negligence was established on the part of LaVern Metcalf, and that the trial court erred in not changing the answer to subdivision (d) of question 2 relating to the item of proximate cause in connection with the finding that Metcalf was negligent with respect to operating his automobile while intoxicated. Appellant submits that as a matter of law it is entitled to such change of answer, and maintains that it is entitled to a dismissal of the cross complaint for contribution interposed by Metcalf's carrier, Farmers Mutual Automobile Insurance Company. The issue of gross negligence on Metcalf's part was raised by the replies to the cross complaints.
Ordinary negligence and gross negligence are distinct kinds of negligence, and do not grade into each other. Ordinary negligence lies in the field of inadvertence, and gross negligence in the field of actual or constructive intent to injure. Wedel v. Klein (1938), 229 Wis. 419, 424, 282 N.W. 606. Gross negligence comprises the commission of the same acts that are involved in ordinary negligence, the only difference being that in gross negligence, those acts are characterized by recklessness, and in ordinary negligence they are characterized by a want of ordinary care. Kuchenreuther v. Chicago, M., St. P. P. R. Co. (1937), 225 Wis. 613, 615, 616, 275 N.W. 457. To constitute gross negligence there must be either a wilful intent to injure, or that reckless or wanton disregard of the rights and safety of another or his property, and that willingness to inflict injury, which the law deems equivalent to an intent to injure. Bentson v. Brown, (1925), 186 Wis. 629, 203 N.W. 380, 38 A.L.R. 1417. One who operates a motor vehicle negligently while under the influence of liquor may be guilty of gross negligence. In Tomasik v. Lanferman (1931), 206 Wis. 94, 97, 238 N.W. 857, it was said:
"The evidence was sufficient to warrant the jury in concluding that the defendant was driving the car while he was intoxicated, and, if so, the finding of gross negligence should not be disturbed. We hold that the driving of a car upon our highways by one intoxicated fully responds to all of the elements necessary to constitute gross negligence. One intoxicated is without proper control of all those faculties the exercise of which is necessary to avoid danger to others while driving a car upon a public highway. The driving of a car by one in such condition betrays an absence of any care, and indicates such recklessness and wantonness as evinces an utter disregard of consequences. We would not have it inferred that one is always to be deemed intoxicated when the smell of liquor is upon his breath. The actual degree of intoxication will always be a material consideration, but the coincidence of a breath tainted with liquor on the part of one responsible for a most distressing accident under the circumstances here existing, and whose natural instincts prompt the discourteous retort above quoted, has its implications. It justifies inferences, and, while reasonable men may draw different inferences from the situation, the inference drawn by the jury from the circumstances here presented was entirely reasonable and permissible."
The element of proximate causation must exist in the case of gross negligence as well as in ordinary negligence in order to make a case for recovery. Natalie v. Chicago Milwaukee E. R. Co. (1915), 160 Wis. 583, 593, 149 N.W. 697.
It seems to us that questions as raised here with reference to causal gross negligence on the part of Metcalf would have been obviated, had the court employed the method suggested in Wedel v. Klein, supra. There, Mr. Justice NELSON, speaking for the court, pointed out (p. 424):
"The situation which confronted the trial court in this action may arise again in that court or in other courts in this state. So we deem it advisable to suggest the proper course to pursue in such situations. Where a plaintiff alleges a cause of action based on ordinary negligence and one of the defendants, or his insurance carrier, asserts that another defendant was at the time of the accident, guilty of gross negligence, the question of the defendants' negligence should be submitted to the jury in the alternative, accompanied by proper instructions to the effect that if the questions respecting gross negligence be answered `Yes' then in that case the questions respecting ordinary negligence need not be answered, and if the questions respecting gross negligence be answered `No' then the questions respecting ordinary negligence should be answered. Such a verdict, when rendered, will not be subject to the criticism that it is inconsistent and such a verdict will serve as a basis for a judgment in favor of the plaintiff, if the questions are answered in his favor, as well as a basis for a proper judgment respecting contribution between the defendant tort-feasors, should both be found guilty of negligence."
In the case at bar, with reference to subdivision (d) of question 1, the court gave the following instruction:
"Subdivision (d) of question 1 requires you to determine whether or not LaVern Metcalf was under the influence of liquor or fermented malt beverage. In this connection you are instructed that a statute of this state makes it unlawful to drive a vehicle upon a public highway while under the influence of any intoxicant. `Under the influence of intoxicants' means such as to materially affect his faculties so as to impair his ability to operate his vehicle in a careful and prudent manner."
With reference to all corresponding subdivisions in question 2 the court, in part, instructed the jury as follows:
"The inquiry presented by these questions is whether the relation of cause and effect existed between negligence, if found by you, and the collision. There may be more than one cause of a collision. The negligence of one person alone may cause it, or the negligent acts or omissions of two or more persons may jointly cause it, as the word `cause' is used in these questions. Before such relation of cause and effect can be found to exist, however, it must appear that the negligence under consideration was a substantial factor in producing the collision, — that is to say, that it was a factor actually operating and which had substantial effect in producing the collision as a natural result."
By its verdict the jury found that Metcalf was intoxicated (as that term was properly defined by the court) at the time of the collision, and was negligent as to position on the highway, management and control, and lookout, and that while his negligence with respect to the particulars of position on the highway, management, and lookout was a cause of the collision, nevertheless, his intoxication was not a cause.
By such findings the jury attempted to disassociate the intoxication from the negligence. Such disassociation is impossible. The finding of the causal negligence coupled with the finding of intoxication is, as a matter of law, in effect, a finding of causal gross negligence.
Intoxication, standing by itself, does not constitute either gross negligence or ordinary negligence. While a person's driving of a motor vehicle when intoxicated, is prohibited by statute, and is a criminal offense, nevertheless, an intoxicated driver of a motor vehicle may become involved in a collision and yet be free from negligence, and, therefore, not liable to respond in damages. See McNamer v. American Ins. Co. (1954), 267 Wis. 494, 66 N.W.2d 342. However, when there is concurrence of intoxication and causal negligence as to items such as speed, management and control, position on the highway, lookout, etc., the same constitutes gross negligence. Here, the jury found that Metcalf was intoxicated i. e., that he was under the influence of intoxicants to the extent that his faculties were so materially affected as to impair his ability to operate his vehicle in a careful and prudent manner. There is ample evidence of record which the jury was entitled to deem credible supporting the finding of Metcalf's intoxication.
It seems to us that complication and possible confusion are less likely to arise in the mind of a jury when it is called upon to determine an issue of gross negligence predicated on intoxication, were the trial court to refrain from submitting a question in the verdict with reference to intoxication, but treating the matter by instruction, and employing the method suggested in Wedel v. Klein, supra. To augment the recommendation in Wedel v. Klein, supra, we suggest that where gross negligence predicated on intoxication is alleged, a question of the verdict shall inquire whether the defendant was guilty of gross negligence with respect to any items such as speed, management and control, etc. The jury shall be instructed that in connection with the answering of this question, they shall first determine whether the defendant was negligent with respect to one or more of the subdivisions of the question, and that in the event that they find negligence in one or more of such particulars, they shall then determine whether the defendant was intoxicated as that term is defined under the law of this state (the court to present the definition of intoxication). They are to be told that only in the event that they find that the defendant had been negligent and that he was intoxicated, may they answer that he was grossly negligent. The causal question shall follow. The jury shall then be told that if their answers to all of the subdivisions of the causal question are in the negative, or that if under the instructions of the court they were not required to answer the questions in the subdivisions of the causal question, they shall then proceed to a determination of subsequent questions dealing with causal ordinary negligence. They shall, of course, be instructed that in the event that they shall have answered any of the causal questions as to gross negligence in the affirmative, they are not to consider the questions treating with causal ordinary negligence.
The judgments in so far as they relate to contribution between the appellant carrier and the respondent carrier must be reversed for the reason of the finding that the respondent carrier's assured was guilty of causal gross negligence.
The right of contribution in Wisconsin is based on principles of equity and arises from common liability. State Farm Mut. Auto. Ins. Co. v. Continental Casualty Co. (1953), 264 Wis. 493, 59 N.W.2d 425. The effect of our decision in Wedel v. Klein, supra, was to hold that, in a situation where A sustains injuries which were proximately caused by the ordinary negligence of B and the gross negligence of C in the operation of motor vehicles under circumstances where A would be entitled to recover against either or both, C cannot have contribution against B for any part of the amount C may have been paid in satisfying a judgment obtained against C by A for such injuries. The reason for such conclusion is not stated in the opinion. There is common liability of both B and C to A, in the sense that A can recover against both, and if only B were sued by A and a judgment secured against B which B paid, equity would require that B have contribution against C. A valid reason for sustaining the result reached in Wedel v. Klein, supra, would seem to be that gross negligence is so much more tortious than ordinary negligence that equity does not require that one guilty of the former should be accorded any right of contribution.
Since Metcalf was guilty of causal gross negligence, his carrier, Farmers Mutual Automobile Insurance Company is not entitled to contribution from Fero's carrier, Western Casualty Surety Company.
By the Court. — Judgments reversed in so far as they provide for contribution on the part of Western Casualty Surety Company to Farmers Mutual Automobile Insurance Company. The court shall dismiss the cross complaints of Farmers Mutual Automobile Insurance Company for contribution.