176 Wis. 235 | Wis. | 1922
The only question presented by the appeal is whether the rule that the negligence of a driver would not be imputed to a mere gratuitous passenger stated in Reiter v. Grober, 173 Wis. 493, 181 N. W. 739 (decided March 8, 1921), should be applied. Counsel for defendant claim it should not be because the announcement of the change of rule made in Reiter v. Grober was obiter dictum and cannot be relied upon as a binding decision; that the judgment when entered by the circuit court was correct; that it became the law of the case, and that it would be unjust to change it now. They have subdivided their argu
It is true that it was not necessary in order to decide the issue in Reiter v. Grober to go as far as to reverse the case of Prideaux v. Mineral Point, 43 Wis. 513, and it was so stated. While it is a rule of general application that the binding force of a decision is co-extensive with the facts upon which it is founded, it is nevertheless also true that when a court of last resort takes up a co-related subject matter stating that it intends to decide it, and does so, such decision.is not a mere obiter dictum. It is at least a judicial dictum. Buchner v. C., M. & N. W. R. Co. 60 Wis. 264, 19 N. W. 56. In Reiter v. Grober we were asked to apply the rule of Prideaux v. Mineral Point and to extend it to include the situation then presented. The court therefore had up for consideration the validity of the rule in Prideaux v. Mineral Point as well as its extension, for when a rule of law is applied the court must assume its validity even if it does not expressly state it. So when we were asked to take the rule in Prideaux v. Mineral Point and extend it, we were asked to recognize or continue the rule and extend it to the situation before us. In answer we said, we will not only not extend the rule but we will not hereafter recognize it as a valid or just rule. True, we could have said we will not extend it, and that would have decided Reiter v. Grober. But having the rule before us as we did for recognition and extension, we deemed it an opportune time to say that we would neither recognize nor extend the rule.
That a subject matter so considered is more than a mere obiter dictum, see cases cited in Hall v. Madison, 128 Wis. 132, 145, 107 N. W. 31. That they appear in a dissenting opinion does not militate against their worth upon the point now under consideration. The federal supreme court states the rule thus: „
*237 “Where there are two grounds upon either of which the judgment of the trial court can be rested, and the appellate
In the present case this question is not so vital because • the court has heretofore in another case than that of Reiter
Does the fact that when an appealable judgment is entered by a trial court it is in accord with the then law make it the law of the case? If it does, then this court cannot apply to it the rule of law it has twice announced within a year. As stated in Reiter v. Grober, the rule of imputed negligence was not a rule of property in which any one had a vested right, but was a pure rule of judicial construction in negligence cases, and that no one could say he relied upon it, because such reliance would stamp him a wrong-doer — • convict him of wilful negligence. It was therefore held that the court could change the rule, and such change became applicable to all future cases coming before it unless the law of the case had been otherwise declared by this court as in John v. Pierce, ante, p. 220, 186 N. W. 600. The judgment of a trial court that is appealed from cannot establish the law of the case. That must be established by this court in the decision upon the appeal. A lawful change in a judicial rule not amounting to a rule of property or its equivalent, by a court of last resort, becomes effective at once, and thereafter, upon subsequent appeals, operates alike upon acts coming within it whether occurring before or after its announcement. Kneeland v. Milwaukee, 15 Wis. 454; Mason v. A. E. Nelson C. Co. 148 N. C. 492, 62 S. E. 625, 18 L. R. A. n. s. 1221 and note; 7 Ruling Case Law, 1010; 26 Am. & Eng. Ency. of Law, 179.
Defendant asks that in the event the judgment is not affirmed a new trial be granted, because it is claimed the questions of the contributory negligence' of the deceased and whether her death was proximately caused by the accident were not as fully tried as they should have been. The
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment for plaintiff for $3,390 with interest and costs.