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 Metcalfs carrier, Farmers Mutual Automobile Insurance Company. The issue of gross negligence on Metcalf’s part was raisеd 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 negligencе in the field of actual or constructive intent to injure. Wedel v. Klein (1938),
“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 intoxiсated 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 tо 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 implicatiоns. 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),
It seems to us that questions as raised here with reference to causаl 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*639 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 inconsistеnt 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 fеrmented 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 suсh 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 оne 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*640 effect can bе 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 аnd 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 criminаl 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),
The judgments in so far as they relate to contribution between the appellant carrier and the respondent carrier must
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),
Since Metcalf was guilty of causal gross negligence, his carrier, Farmers Mutual Automоbile 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.