Conklin v. Horner

Conklin, Respondent, Appel- another, v. Horner

lants. No. [Case 251.] Thurlby, Respondent, Same, Appellants. v. No. [Case

252.]

February April 9, 1968.

473 appellants For by Heide, Sheldon, there was a brief Hartley & Thom Sheldon, Kenosha, and W. A. all argument by oral A.W. Sheldon. respondents by For Kenney, there awas brief Korf argument Elkhorn,

& and oral H. Richard Pfeil Pfeil. upon J. The defendants’ claim based

Heffernan, 617, our (1965), decision in v. Wilcox Wilcox 26 2dWis. 408, 133 N. W. 2d where we abandoned the choice-of- adopted of lex rule loci delicti and in its a more stead methodology upon qualitative analysis flexible based jurisdictions might the contacts that one or more have adopted general with the ap- relevant facts. We proach of Babcock v. 473, Jackson 12 2d N. Y. Supp. 743, 240 279, N. Y. N. 2d E. 2d 95 A. 2d L. R. 1, principle and the basic Tentative Draft No. Restatement,1 Laws 2d, may which de- Conflicts of nominated as the gravity,” “center of “grouping of contacts,” interest,” “dominant oriented,” “interest analysis” approach. Zelinger “interest v. State Sand & Co., ante, p. Gravel 156 N. empha- W. 2d 466. We adopted general principle we While have of Restatement 2d that a more rational desirable, choiee-of-law rule than lex loci is it apparent methodology not we do follow of the Restate ment. adopted rule, method

sized that what was not a but we jural analysis permitted that dissection of the bundle constituting determine and a tort its environment to a reasonable what elements therein were relevant choice of law. viewed, apparent that the Case it

When Wilcox is so that, leads we cannot conclude when one set of facts logically reverse, forum, or the to the law of the the apparent opposite reverse, of these lead the facts will often remarked in ex- conclusion. It has been scientific perimentation phenome- the mere observation of a history non in itself constitutes a relevant fact in the phenomenon. the The same is true in a choice-of-law observation, put problem, for in the or to it the Wilcox context, methodology, analysis, and the evalua- only by forum, tion of can made contacts and the relationship signifi- forum to the other facts is a analysis. Thus, factual, cant factor in the the exact image substantially mirror in a conflicts case is an impossibility. appellants point out that in Wilcox v. Wilcox the

journey of Mr. and Mrs. Wilcox to California commenced in Wisconsin and intended was to continue until their upon vacation was ended their return to Wisconsin. Using one of favorite cliches of jurisprudes, conflicts happening we referred to the of the accident in Nebraska as “fortuitous.” We stated the automobile was licensed garaged protec- concluded that the by guest tion afforded the Nebraska statute was de- signed to benefit Nebraska hosts and the host in Wilcox awas Wisconsin resident. Since the standard of care required guest by the statute of only Nebraska would penalize gross negligence, we concluded that no Nebraska purpose promoting safety highways on its would be by applying served the lesser-care standard of the Ne- braska law. 2d v. Zellmer Heath later in said Wis.

We 589, 151 easy Wilcox was N. 2d an W. case no revealed conflict with the laws another serious jurisdiction. resorting solely to We resolved Wilcox Wisconsin, only jurisdiction. the law concerned argued by situation, appellants The reverse —that only seriously jurisdiction Illinois is the concerned —is not, however, to be found under facts of this case. seriously jurisdiction. concerned Wisconsin is While Wilcox, merely Nebraska was the site of tort forum, case, only not the in the instant Wisconsin is not the state injury where tortious conduct and the oc- compel curred —facts in themselves would the use of Wisconsin law under the Ee- Bealeian rule of the 1st it Thus, statement —but is the forum well. as this court specially charged is an instrument of the Wisconsin government to further the Wisconsin, interests of if to underlying policies do so the of our furthers law. We obliged policies are to examine the behind the relevant qualitatively to signifi- laws determine whether their great enough finding is cance to warrant a con- serious flict, require making which would turn a conscious law, using “choice-influencing choice of the considera- adopted Heath, supra. Wilcox, supra, page tions” In expressed duty we this of the forum court as an in- policy presumption, strument of state as a “that the law presumptively of the forum should unless it be- clear that greater comes nonforum contacts are of the significance.” Zelinger supra, Case, While the recent pre referred to this sumption presumption aas “weak point” to used starting as a (emphasis supplied), strength presumption irrelevant, the is only purpose trigger since its is responsibility to the of the court carry policy appears out the forum state’s unless it that policies by using rule, forum state’s are unaffected a nonforum unless facts that show contacts with tort are so clearly minimal of the use forum law would be the result of interloping chauvinism. controlling. This that Wilcox not

It is thus obvious conduct, place of Wilcox, for the of the reverse case is not Accordingly, coincide. place injury, the forum responsibilities of a concerned gamut of the the whole play. court come into forum negli- recovery only if the allows Illinois

The law wanton,” while Wiscon- gence of the host is “wilful to exercise recovery if host fails would allow sin Heath we summarized some ordinary care. In motivating guest a statute. We stated policy factors supra, pages 590, Heath, a statute: such prevent (a) collusive suits “. . . evinces desire ingratitude of guests; (b) hosts and between prevent_the (bites hand that guest kindly his host who sues obligated being protect from him); (c) the host feeds for he bargained judgment (a when more than he keep (the ride); (d) a fund only intact offered parties assets) reached other it can be host’s the accident whose so to have some claims are assumed gratuitous vague priority of the Indiana statute is over the claims moral guest. policy It clear host, insurer, from some and therefore his to shield the duty) (a liability. required of conduct lesser The lower standard is for the in the situation benefit defendants. imposes liability “The in the host- law of Wisconsin negli- guest proof ordinary situation when there is gence : “ policy provide compensation to Tt the of our law is person negligently injured. ato when he has been The policy Among reasons for this that because less are manifold. them are wrongdoer injury the should bear cost of an injured party (un- of his causal fault not the equally fault) he at is the state authorities or services, medical those who have furnished and that to damages negligence puni- in the extent that a action are hoped tive, judgment may it that the burden deter Wilcox, supra, page v. by Wilcox conduct others.’ like 631. purposes compensatory, “The of Wisconsin law are admonitory, and deterrent.”

477 used, policy com- If Illinois law is pensating injured ordinary negligence by are those who 601, Heath, page will defeated. stated in at be We that persons compensatory policy our “. . extends . wheth- to they they er be residents this or whether come state jurisdiction.” from another guest legal accept law, accept

If we Illinois we gives wrongful standard sanction to conduct. The negligence hoped deterrent effect it is our laws ex- upon driver ercise misconduct will be defeated allow- ing negligent go unpunished. misconduct is of This particular importance case, this where misconduct highway. on occurred a Wisconsin hand, On the other if applied, Wisconsin law is policies protecting Illinois host and his insurer defeated and those will be whom would Illinois shield will damages. be answerable apparent

It is thus that a conflict serious arises. Both physical states have substantial tort. contacts with the place injury, conduct, forum all in are Wisconsin, parties while the and the vehicle came from arguably Illinois intended return there. It could jurisdiction contended the law of either could apply.

Accordingly, obligated this court evaluate competing laws to determine which is consonant most with the considerations that have we determined to be to the relevant choice of law. deem sug-

We the most reasonable choice to be that gested by following “choice-influencing considera- adopted Heath, initially proposed tions” by Professor Leflar,3 appellate Robert and first utilized in an decision by Mr. Chief Justice Hampshire.4 of New Kenison 3 (1966), 267, 41 282, N. Y. U. L. (1966), Rev. Cal. L. Rev. 1684. v. Clark H. 107 N. Clark Atl. 2d 209. choice-influencing are:

These considerations Predictability results, order,

Maintenance of interstate and international Simplification judicial task, of the governmental interests, Advancement forum’s Application of the rule of law. better Heath, supra, Zelinger, supra, As we find the predictability inapplicable element of under these facts. Zelinger, page We said 108: choice-influencing predict- “. . . the consideration of ability parties plan is minimal . . . since do not to be negligent relying or interspousal to commit torts on host-guest immunity. . . .” Moreover, hardly imagined, it can days these tourism and traffic, extensive interstate automobile strictly jurisdic- motor vehicle will be confined tion licensed, where it garaged, all, or insured. After Winnebago county, Illinois, residence both plaintiffs and defendant, located on the Wisconsin doubt, frequent border. No automobile travel in the neighboring contemplated by state was all concerned. As respondents point out, appellant insurance com- pany is called the “Nationwide Mutual Insurance Com- pany,” a name with consistent the wide territorial area company responsibility, insurance hardly indicative solely upon it relied setting local laws its rates. Moreover, prior this accident Wilcox, occurred when Wisconsin followed delicti, the rule of lex loci and the contemplation parties at that time would have been that Wisconsin law would if the accident oc- curred on highways. As we have stated be- fore, however, a tort which is not never, by intended can definition, subject be the planning of advance with ref- particular erence to a state’s law.

While we predictability conclude that is not an ele- preselection ment of controls choice of law in an accident, thereby automobile do not we mean there that any uncertainty respect should be to which law should applied after all the facts to relevant the occurrence subject are analysis. and pointed available to We out that analysis such certainty to a upon leads reasonable based rational considerations as contrasted irrational, to the though (as following certain viewed the adventitious tort), situs of the rule of lex loci.5 obliged We are also to consider whether the choice of impede Wisconsin law will the maintenance of inter- comity state order and or whether per- the free flow of sons and commerce between Illinois Wisconsin will be facilitated the choice of Illinois law. This criterion requires minimally that a state that is concerned defer to of a substantially interests state that concerned. Wisconsin minimally is more than concerned, for the negligent conduct highways.6 occurred on its

Nor do likely think it governmental we that Illinois’ are interests so concerned retaliatory conduct would fact, ensue. In case, while in least, willing this at we are accept premise to host-guest the Illinois results in a marked difference in par- outcome a negligence strong ticular case, we have doubts that this literally true. carefully application The reasoned the Wilcox-Heath analysis by judge encourages the trial us the belief of the feasibility application methodology approach of this as an certainty. any One of the possi hazards that besets conflicts rule is the bility shopping. present here, forum That element is not for brought the suit injury was in the state where the conduct and occurred, logical place bring the action. plaintiffs’ any prior The suits in event were commenced 5, 1966, the March mandate in No Wilcox. doubt any forum was chosen not because of variance in the law, permits against but because Wisconsin law direct suit a lia- bility company. insurance pro- Injury Jury Instructions Personal Illinois

vide: “ a cause of action conduct’ means ‘Willful wanton which, indifference to intentional, if not an utter shows disregard safety person’s and the conscious own safety of others.” However, decidedly the decided on a differ- cases take ent flavor. wanton,”

All term, studies indicate that the “wilful degree negligence refers to a indicated than less by a literal The commentator construction of the term. 267, (1959), 263, in 54 re- Nw. U. L. Rev. reviewed pointed cent cases and out the refusal of the Illinois Supreme exactly statute, Court to define the words and “wilful wanton.” He observed that the court stated expressed ordinary negli- term that the an area between gence and actual malice. The commentator at stated page 268: contemplation “Whether this was within the legislature or whether it indicates a trend com- towards pensation every injury, the Illinois Statute Guest something quite

has evolved as different from what the original proponents guest legislation evidently of statute had in mind.” Spivack A appellate opinion, recent division v. Hara App. 22, 26, 69 Ill. 2d 216 N. E. 2d equate something would the words the statute akin ordinary negligence. opinion That stated: charge “The and words wilful wanton used finding against longer in the Hara no have the connota- tion of wilfulness or even have been used to restraint, utter lack of but vague shadowy define and somewhat ordinary negligence. area They close to imply do not intentionally disregarded that the defendant safety of another.” a fair While evaluation of the Illinois cases would lead something to the conclusion that more ordinary than negligence liability upon generally required place is contemplated by host, yet immunity clear that it is grudgingly by Illinois the statute rendered is but host-guest position courts. on not as much Wisconsin’s opposed position to the as one the Illinois courts would reading conclude from literal of the statute. great policy We no done thus see violence to Illinois applied. in the However, event Wisconsin law is assum- ing, do, just as we that “wilful and wanton” means that —negligence substantially ordinary in excess of lack of care —we nonetheless conclude that our interest not so application minimal Wisconsin law to the merely preference. case would a matter of forum Moreover, imposition liability it is obvious that upon likely an Illinois host is not to reduce the likelihood hosts Illinois will continue to drive into Wisconsin guests. upon with their We no burden see interstate movement result of the choice of Wisconsin law. Zelinger pointed out in Heath

We the third choice-influencing simplification of the consideration — judicial importance task —is little in the Although previous situation. discussion indicates posture some doubt about exact of the Illinois host- guest law, no would doubt we be surer of our own law, though state, of courts this more accustomed to trying forum, under the law of the cases find would little difficulty applying Heath, in Illinois law. in We said supra, page 600, “the or ‘wanton wilful’ . test . . could applied easily by any lawyer judge.” be Ad- complications posed by possible ditional use of Illinois insignificant they may ignored. law are so that be One of the most duty relevant considerations is the of legitimate governmental to policies courts further policy The of compensate forum. our tort law is to injured by negligent pointed those who are acts. We out Heath, page 601, policy in applies this to all who come our borders: within deny recovery negligence ordinary “To for is to de- policy compensating feat of of Wisconsin’s victims ordi- negligence. nary provide policy It is the of Wisconsin to compensation persons they whether residents those be they juris- of this state or come from whether another deny damages recovery diction. To nonresidents for by liability occasioned tort that creates same to a only policy resident would not defeat Wisconsin’s and its

governmental interest, perhaps challenged but could be equal protection denial laws nonresi- dents.” Mr. Chief Justice Zelinger, supra, Hallows stated in page 112: “. . . Wisconsin’s in the interest nonexistence of such [interspousal host-guest

rules mote the on a moral immunity] pro- is to spreading liability the risk and fasten in torts basis fault.” that, We have also stated compensa- addition to the tory aspect of law, liability our tort negli- ordinary gence is admonitory deemed to be and deterrent Heath, supra, page nature. therein, 591. We stated at page 602, employ the Indiana law: . . would remove deterrent effect of our negligence, while the choice of Wisconsin law would fur- ther regulating this state’s interest conduct on Wis- highways consin penalizing when conduct it is negligent. promote It driving would safe on Wisconsin highways.” To the extent that negligence our laws of serve that purpose, this court seriously would duty breach its to its obligations forum by applying foreign host-guest rule when the Wisconsin ordinary negligence rule of could reasonably applied. Wisconsin is a state, tourist large numbers immunity vehicles from jurisdictions Cavers, See Process, 8, page note 144: Choice-of-Law “An question affirmative answer to this seems called for not only Equal hut, Protection Clause in the case of the citizen state, by Privileges of a sister and Immunities Clause.” year. 14,213 1965, visit our state In each out-of-state vehicles were involved in accidents Wisconsin. Twen- ty-nine percent these, 4,129, of or were from In Illinois. 1966, 21,699 of all the vehicles involved Wisconsin’s percent accidents were from out of state. Seventeen of these, 3,655, apparent were Illinois automobiles.8 It is dealing major that we are with an area of concern to the state of it Wisconsin. While obvious that may rule not be relevant all or to even a large number of (statistics these instances are not avail- able) , the concern of application this court of a would, potential, rule that substantially its dilute (as compensatory) deterrent well of effect our negligence obviously legislature well founded. Our recently spoken has strongly out enforcement strict highway of safety rules. In ch. Laws of it referred “immensity to the prob- of the state’s traffic “rigid lem” and called for enforcement” of all traffic preamble legislative laws. The of this new act concluded: gravity “The problem, devastating pow- and the er of longer permits the machine no countenance myriad were, excuses careless which drivers in an day, earlier tiresome, but which now become lethal.” (Emphasis supplied.) It is in the interest of this state and of its citizens possible retain where require those laws which motorists negligence. refrain from ordinary acts of We also conclude that Wisconsin’s law is the “better law” to under the circumstances. We have in Heath, supra, Zelinger, supra, pointed out that guest vestiges statutes are anachronistic early of the days development law-of-enterprise liability present and do day not reflect socioeconomic conditions. opinion Earlier in this application we said the host-guest rule objective defeats the Wisconsin high- Facts, published by Wisconsin Accident Wisconsin Motor Ve Department hicle in 1965 and 1966.

484

way law, safety. a We also conclude that law is had such legislature application in a its those states where has put guest sanctuary a in effect results in haven —a law a wrongfully impunity. —for those who cause harm with legal retrogression extending only perni- in We see cious of such law to effects Wisconsin.9 emphasize prefer We that we Wisconsin rule of negligence ordinary law, not it is because Wisconsin’s it to but because we consider better law. In three year, Heath, Zelinger, case, within a cases and this we preferred law, have Wisconsin but it should be noted competing that the of merits rules of law were care fully considered, and the choice was made not as a mat parochial preference that, ter of in but the honest belief given opportunity apply to either a forum non- law, proved forum the better law in each case to be that of Zelinger, the forum. supra, page 113, We said in “we would the law of a nonforum state if it were 10 the better law.” appearing excellent 2, 1, An article No. Vol. Portia L. J. (1966), 106, points 112, guest out purpose that while a prevent statute is to collusive suits: guest guest . . the no rule is bar to the driver and his . . . conspiring trump up simple negligence. guest But the rule is guest who, having injured to the bar honest after been negligence host-driver, unwilling perjure of his himself.” pointed Heath, As we out in to the extent that the rule is for preventing collusion, purpose primarily of the concern is experience forum. Our leads us to conclude ordinary negligence encourage the rule of does not collusive suits. 10 In Peterson v. 2d Warren 31 Wis. 2dW.N. Wilcox, pre the first Wisconsin conflicts case to follow we analysis ferred Minnesota law. While did not follow pattern Heath, reading opin a careful of Justice Mr. Wilkie’s ion makes clear the overtones the “better law” rationale. See Ehrenzweig, (Oceana Publications, Private International Law 1967), page 101, for comments on Peterson v. Warren. Wisconsin, analysis to the conclusion that This leads applied Illinois, are should be the case.11 We not tort the contacts of Wisconsin with the satisfied application are substantial Wisconsin law fully justified by the facts. are not mere We intruders situation. two most relevant a non-Wisconsin choice-influencing inevitably lead considerations to the selection Wisconsin law. The use Wisconsin law significantly forum, the of will advance interests the nonapplication while its will be detrimental to Wiscon- policy; and, addition, in sin’s we select Wisconsin’s law reject the better law and that of Illinois as a “creed outworn.” significantly so

Illinois is not concerned with this case replace its law should Wisconsin’s better law in derogation of the of the interests forum. sustaining conclude

We that the orders the demurrers supplemental the answers must be affirmed.12 By the affirmed. Court. —Orders 11 argument urged, On oral it was were we to find Illinois law applicable, delicti, that since Illinois follows the of rule lex loci place automatically law, tort, apply. the Wisconsin would directly problem, We are not with faced the since our choice is law, cogent it Wisconsin but is clear from the statement of Casualty Mr. Justice Currie in Haumschild v. Continental Co. (1959), 130, 141, 814, criticizing 2d 7 Wis. N. W. 2d the doctrine 95 that, selecting renvoi, jurisdiction, in the of another law we principles not the would of another state. conflict-of-laws 12 We, course, are familiar the York case of with New (1965), Supp. 992, v. Henderson Kell Misc. 2d 263 Y. 2d N. 647, Supreme preferred Court wherein New York law case, one, a York similar to this in an Ontario New which by guest operated resident a in a car owned and his who was injured bridge in a a Ontario host was collision with New appellate App. ((1966), York The division affirmed state. Div. Supp. summary 595, 552) opinion 2d 2d 270 N. Y. with beyond to articulate the basis the decision the state failed guest personal ment, “. . . that a has cause of action for in- (dissenting). majority J. over- has

Hallows, C. emphasized and Wisconsin favored contacts has governmental and better in de- interests termining significant this had the re- state most lationship host-guest personal injury issue in this contacts, only action. Wisconsin has two the forum and place place (here, accident conduct injury contacts, coincide). Illinois has substantial parties domicile of all the and the center of the relation, very paraphrase which is the issue involved. To 617, Wilcox v. Wilcox 26 Wis. 2d 133 N. W. 2d arewe concerned the situation in with which plaintiff guest and defendant host are Illinois resi- trip who on a dents were which commenced in Illinois policy was intended to end there. The of insurance issued company, an Illinois licensed was delivered in Illinois, coverage to afford on an automobile licensed in usually garaged operated Illinois and in Illinois. choice-influencing considerations, Of five we have difficulty predictability simplification little with and the judicial They significance task. are of little However, predictability tort cases. was stressed as be- ing important antenuptial-agreement most in an case adopted grouping-of-contacts which theory the con- juries against occurring a host in an accident within this State whether those are involved residents or domiciliaries of this knowledge, or yet State not.” our To this case has not reached ?) (will Appeals. it ever York the New Court of have, however, appearing We noted interest with the comments (1967), 469, in Henderson; Colum. L. Eev. Two on Kell Views v. Ehrenzweig’s comprehensive the references to Kell in Professor treatise, (Oceana Publications, conflicts Private International Law hypotheses 1967); appearing Cavers, the numerous in Choice-of- (1966), University Michigan Process Press; Law of in and the appearing of articles Professor Robert Leflar in Y. U. 41 N. (1966), 267, Choice-Influencing L. Rev. Considerations Conflicts Law, (1966), 1684, L. in 64 Cal. Rev. More Law: Conflicts acknowledge Choice-Influencing on Considerations. We the as- sistance of these sources in the this consideration of case. rule in application of such prior the tract to issues Knippel (1959), 7 Wis. 2d See Estate Wilcox to torts. of However, whether on the issue 514. 335, 96 N. 2dW. protect to Illinois should law of inter interstate host, of maintenance the factor may have significance. Illinois national order has some applies its law offended when Wisconsin little to basis be right recover to protect in their to its own residents is an Illinois resident an accident case when automobile Zelinger v. the situation also This was involved. 2d 466. Co., ante, p. 98, N. 156 W. State Sand & Gravel greatly its however, concerned when Illinois, existing solely its governing relationship between a applied residents to its and is not is at issue residents court simply a temporarily in because who are Wisconsin Illinois. than that of better thinks its law is only factual not evaluate The court of the forum must to determine whether contacts in relation to the issue legitimate governmental give interest but they rise a in- strength concerns of these local also evaluate Thus three the factual contacts. in relation to terest weighed ingredients each choice-influenc- with must be importance ing itself, of the fac- factor —the factor factor and contact in relation to the choice tual relevancy precise involved. in relation to the issue of both case are the converse of Wil

The facts in the instant Wilcox, reasoning supra, applying cox v. for not and its applied to and to further lex loci should be be consistent that, page 635, hope expressed “on in that case generalizations ap case-by-case-basis will soon become place guide parent take its to the future to will provide If a uniform common law conflicts.” this place reasoning used the accident contact were support application of our local not concerns would specific reasoning issue. The Wilcox not happening in in depreciated, truth and fact the because in in of accident this case Wisconsin the was fortuitous any and the not as a to of “should now inure windfall reasoning here). The Wilcox (plaintiffs, defendants” argument also of relied on the the law place application was the of “antici- the was law whose pated citing Ehrenzweig, Guest against,” and insured Theory Statutes in the Laws —Towards a Conflict of of Enterprise Liability Under “Foreseeable and Insurable Laws,” here, 69 Yale L. J. Likewise in 603. Ehrenzweig’s “compelling converse, would re- reasons” quire application the of the Illinois law because Wiscon- sin is not a law “foreseeable law.” insurable Certainly, mobility society the modern must of be con- question compelling sidered the but how much force given. or influence this should factor be only other contact in factual the instant case is Zelinger forum, the Wisconsin is but we in said application the merely was law forum presumption starting point weak be used in evaluating choice-influencing in relation factors specific unitary entity. issue and not to tort as a If the advancement of the local concerns forum is controlling factor, to be majority as the seems to indicate, fact, then we word, have deserted if not in newly adopted our deciding method of choice-of-law questions are applying committed to the law of the forum always duty it is our because to advance Wiscon- governmental sin interests and to our better law every conflicts case before us. I think Illinois contacts and interests relation to presented issue here substantially are greater and more than relevant I Wisconsin’s. do not underpinnings think the place contacts of forum and on accident these facts are sufficient to entitle non- reject governmental residents to interest of their domicile state under which their relation- ship was created and claim what we consider and plaintiff undoubtedly the considers to be the better law.

489 supra; (1967), Wilcox, Heath v. Zellmer In Wilcox v. Zelinger 644; 578, 35 2d v. State Wis. 2d 151 N. W. in- Co., supra, resident was Sand & Gravel a Wisconsin protection volved and of the law entitled to the was against claim- his domicile and forum Illinois residents ing protection specific of Illinois law. The issues guest-host statutes, parental immunity, and the were right present But in no to contribution. case Wiscon- remotely nothing in resident is even involved. I find sin 473, (1963), Babcock v. Jackson 12 N. Y. 2d 191 E.N. 279; Dym (1965), 120, 2d 2d v. Gordon 16 N. Y. 209 N. E. 792; Macey (1966), 289, 2d v. Rozbicki 18 Y. 2d 221 N. 380; v. (1966), N. E. 2d or Clark Clark N. H. 107 351, compels 205, majority 222 2d Atl. which de- cision. majority (1965), cites Kell v. Henderson 47 Supp. 647, (1966),

Misc. 2d 263 N. Y. 2d affirmed 26 App. Supp. Div. N. Y. 2d 552. 270 Kell While majority does, would decide this as the case it not an highest opinion gives court of York New no reasoning. True, discussion of its scholars several who have commented on Kell would seem to affirm the 1 grounds. opinion Rosenberg on various Maurice would get apply away York New law to from the host- guest theory of Ontario on the the host domicile guest should determine standard of care to his unless place injury provides higher Basically, standard. preference ordinary his rule for the standard of negligence or what he conceives to be rule. the better Trautman,2 professor, Donald T. another would also apply New York law because he finds the stat against policy utes obnoxious there is no real reasons guest ungrateful However, collusive suits in Ontario. 1 Opinion Appeals, An the New York Court Colum. (1967), 459. L. Rev. 2 Comment, A Colum. L. Rev. 465. such apply he law if there were would Ontario policies. choice- Leflar,

Professor the creator five Robert influencing Heath, adopted in that a factors we states ap- jurisdiction the dominant contacts committed to proach to be consistent have to the Ontario would prob- Kell law in a New York court would but concludes ably negligence think makes socioeconomic- its rule better legal host-guest sense than the statute and Ontario’s society by function of the law would better served be applying Leflar, More New York’s rule. Law: Conflicts Choice-Influencing on Considerations, 54 L. Cal. Rev. exactly majority 1584. This is what the done. has homing example is an This of the instinct which Leflar against tendency also warns aas natural of the forum to state favor its own law.

Professor David seems to favor the rule of Cavers preference Rosenberg’s similar to Professor and would apply the law of the to Cavers, forum these facts. See The (1965), pp. Process 114-180. How- Choice-of-Law ever, through there ais common thread the rationale reasoning professors although of these each theory them rule, has his own of a conflict-of-law none adopted of which were Heath. We submit that a con- application sistent Jackson, supra of Babcock v. (Wilcox equivalent) requires is the Wisconsin a reversal of Kell appeal. and a logic reversal on this consistency But and law, unknown, in the while not apparently longer are no considered majority a virtue. opinion, which like professors, the concludes the law of the forum should be applied upon premise based the law, legitimate statute bad no purpose, serves and should be circumvented. The choice-influencing fifth consideration, law, the better then para- becomes the controlling if mount not the factor. But in Heath and in Zelinger, we made it clear that none the choice-in- standing fluencing alone con- is to be considerations controlling. sidered 2d, If we were follow the Restatement Conflicts of

Law, 9,No. Tentative Draft we would law present Illinois to the for the reason that Illinois facts significant particular relationships more to the issue has b, here involved than sec. comment Wisconsin. See /, comment the identical sec. 379 where facts given examples application case for the instant are application of choice- of the nonforum law. The influencing every factors be consistent in case should respect although with to the same issue the relative im vary portance of each factor will with kind of tort involved in relation to the factual contacts. If issue going only applying we are consistent merely giving lip forum, then we are service “significant new contacts” rule. The result reached majority reasoning overpowering local and its logically easily support concerns better law application rule of the mechanical law the forum rejected every years ago case, but this rule was Ry. (1904), Northern Bain v. Wis. Pacific N. W. 241.

I am authorized Mr. Justice Robert to state W. Han- joins in this dissent. sen

Case Details

Case Name: Conklin v. Horner

Court Name: Wisconsin Supreme Court

Date Published: Apr 9, 1968

Citation: 157 N.W.2d 579

Court Abbreviation: Wis.