*1 speculation made another but damages might by jury, trial if the are no a new amount hope grounds was within awarded the realm reason by jury of the evidence. The amount awarded was conserva- view record, but, does not seem to us be unreason- tive able or result in an which demands of this court inadequacy of the Powers Likewise, rule. there is no call application for the exercise this court of its a new- grant by power trial, 251.09, under sec. justice interest Stats.
By the affirmed. Judgment Court. — litem, ad Holytz, another, Guardian Appellants, v. City Milwaukee, Respondent.
May 1 June *3 Habush, For & there were briefs Gillick appellants by the counsel, Habush, all and Robert L. Habush of attorneys, Milwaukee, Habush. oral Robert by and L» argument For there was a brief John J. respondent by Fleming, the assistant and Peter M. city attorney, Stupar, city attorney, Marussewski, at- and assistant city Richard F. attorneys, counsel, Stupar and oral and Mr. torney, argument by Mr. Marussewski. order the trial court the sustaining The
Gordon, J. an issue demurrer to the complaint presents respondent’s of a municipal corporation. with the tort liability respect in the com- alleged The trial court that on the facts found defense mu- was entitled to invoke the city plaint urge city nicipal immunity. appellants tort such defense because (a) drinking not invoke may and created were pit trapdoor fountain the water-meter or in its capacity, (b) the city proprietary maintained by the time a nuisance and at constituted meter contraption of governor gov- relationship occurred injury city Holytz between erned did not exist Janet nuisance” Milwaukee, was an “attractive or the trapdoor (c) maintained city gov- or not created that was ernmental capacity. case, the trial we consider facts of
Upon *4 that, based in his conclusion upon correct was judge court, asserted of action was no cause of this decisions past However, disa- now to we are prepared in the complaint. created and court which have this of rulings vow those from tort of immunity governmental the doctrine preserved we rest this case it unnecessary makes This claims. in the foregoing paragraph; mentioned issues elusive on the prin- of the abrogation on our exclusively turns the case claims. from tort immunity of governmental ciple The defendant we urges chal ignore appellants’ lenge to the doctrine of it governmental because was not in raised the trial court. Concededly, general is rule that this not court will consider on matters appeal which were not to the trial court. ex presented State rel. 249, Mattison Baudhuin Wis. 70 N. W. In 674. of the view unmistakable of this (2d) court rulings cases, in a host of would have it been futile to have expected trial court to have countermanded the of canon munici It is pal immunity. understandable that issue entirely not raised in was below. This court court has frequently considered which questions were not in appeal presented trial court. Discher v. Industrial Comm. 519; (2d) General Electric Co. v. Wisconsin E. R. Board 3 Wis.
246, 247, 88 N. W.
The rule municipal tort in knee-deep legal e.g., esotérica: function versus governmental proprietary function; relationship governed. The governor dogma the rule is our so case law that deeply engrained we deem consider the historical necessary to of the origins and some of critical rule assaults have been made it. upon
Historical Tort Background Immunity. The rule of sovereign immunity developed country an been from doctrine English applied far United States its doc- beyond original conception. to the point trine where the historical expanded sovereignty was relied kings support protective prerogative This, Borchard, to Professor according municipalities. Borchard, one evolution.” “is of the Gov- mysteries legal Tort, Law ernment 34 Yale Liability Journal It seem somewhat anomalous that American would courts should have adopted sovereign-immunity theory *5 in the first since it the divine was based place upon right of kings. of from tort claims concept immunity municipal
stems from the Devon English case of Russell v. Men of 2 T. 359. was case Rep. R. That Eng. an which was relieved of unincorporated county liability for the of a which were occasioned damages disrepair One of in Men Devon grounds advanced bridge. the com- Case because was was immunity necessary funds one and did not have was an munity unincorporated “that A advanced was second reason pay damages. than it is an should sustain an injury better that individual should suffer an inconvenience.” Eng. that the public Kemmerer 362. In Town v. Rep., page Maffei 808, 810, 338 Pac. the argument Wyo. Case in turn relied was that the Men Devon advanced from Brooke’s Abridgement. an earlier authority However, thesis of of the general most historical analyses Men Devon Case agree municipal doctrine. was judicial parent adopted in the States The first case United Leicester Mower v. of the Men Devon Case was doctrine 247, in was even which immunity granted 9 Mass. and had corporate was a corporation the county though the rule in which adopted case Perhaps leading funds. 3 Hill New York (1842), is States Bailey the United mu- Wisconsin, which wholly adopted the first case In 33 Wis. v. Oshkosh was Hayes nicipal justified That decision 14 Am. Rep. grounds: rule on the following from as stated liability, of exemption “The grounds named, are, the corporation engaged last
authorities in service, has no in which it aof public performance derives no interest, special which it and from particular *6 or in benefit its advantage but which it corporate capacity, is bound to see a performed pursuance duty imposed fpr by inhabitants, law the general welfare of the or of the that the members community; though appointed of the fire al- department, not, city
by are when corporation, duties, in the acting discharge of their servants or agents in the of the for employment city, whose conduct the city liable; can be held officers, but act rather as they or public officers of service, with a city charged for whose public or misconduct negligence of official discharge duty no lie action will unless against city, expressly given; maxim hence the respondeat superior has no applica- tion.”
The rules tort surrounding have re- municipal sulted some artificial For highly judicial distinctions. example, may be immune or liable municipality depend- ing whether we determine particular function involved is or “proprietary” “governmental.” Our court 123, held in New Christian v. London 234 (1940), Wis. 621, 290 N. W. a live wire which carried elec- from a electrical tricity municipal to a utility municipal was maintained in a streetlight by city proprietary but a municipal waterworks which capacity, water supplied to be used fire was a operating govern- fighting mental Trailer Co. v. Highway Janesville Electric capacity. 161, Co. 187 204 Wis. N. W. 773. (1925), The operation of a a municipal hospital, although generally proprietary have some of its classed activity, operations as govern- may mental. Carlson Marinette 264 County v. Wis. (1953), 423, N. 59 W. (2d)
In test we applying “governor-to-governed” have some artificial rules additional adopted regarding immunity or held that We have this crucial did liability. relationship a was a exist where slide and using public toboggan plaintiff an Pohland v. slid into unprotected quarry, Sheboygan 20, 251 27 N. W. Wis. and where a ran fell an a into sewer open through plaintiff ditch Erickson v. Salem Wis. West public park, However, 236 N. we have concluded re- W. 579. exist a on a walking did not where lationship plaintiff public baseball forth from coming walk was hit aby municipal Robb v. Milwaukee Wis. playground, minor was N. W. or where a plaintiff playing river, near created Flamingo a snow pile city 219, 55 Waukesha Rule Tort Immunity. Criticism the There tenets of American jurisprudence are few probably *7 as the have been so berated unanimously govern- which This court the doctrine. courts highest mental-immunity been states have articulate unusually of numerous other rule; and law text writers reviews existing castigating of chorus of denunciators. Some examples have joined are here presented. the condemnation 382, 386, 260 51 In v. Eau Claire Wis. (1952), Britten 30, this court stated: N. W. (2d) from liability doctrine that should be immunity “The while municipalities engaged the state and to granted Its rests weak foundation. operations governmental found in the ancient and fallacious notion seems to be origin no wrong.” can do king St. Rose 265 In Congregation Smith v. 393, 397, we stated: again 61 N. W. (2d) for has that the reasons . this court felt long grant- “. . charitable and organizations, to religious such ing archaic, . .” are . as municipal corporations, as well to states in other of the judicial expressions Some are' follows: decried the rule have sharply dif- shot to death on so “This been many doctrine seem now folly would utter to ferent battlefields resurrect it. . . Fowler v. Ohio Cleveland 158, 176, St. 126 N. E. (concurring opinion, Wana J.). maker, “Little time need be whether the spent determining strict doctrine of from tort municipal immunity liability should be All this is old straw. The repudiated. question we?’; is not ‘Should it is be interred may ‘How body with last rites?’ No judicially nondiscriminatory longer does eminent scholar or any jurist justification attempt 231, 271, thereof.” Williams v. Detroit 364 Mich. 111 N. W. J.). (separate opinion, Black, “ ‘It is almost incredible in this modern of com- age and in a parative sociological enlightenment, republic, maxim, medieval absolutism to be supposed implicit “the can do King no should the various wrong,” exempt torts, branches of the and that the entire burden from their government liability from damage resulting acts should wrongful the government be imposed upon individual who suffers the rather than single injury, distributed entire among community constituting where it could be government, borne without hardship upon ” individual, and where it Barker any Santa justly belongs.’ Fe 47 N. M. Pac.
“We, therefore, feel that the time has arrived declare this doctrine anachoristic not our only system [sic] but to our traditional justice ernment.” democratic concepts gov- v. Cocoa Beach
Hargrove 1957), 96 So. (Fla. *8 130, 132. (2d)
“After a re-evaluation of of the rule im- governmental from we have munity liability tort concluded it must be discarded as mistaken and unjust.” Muskopf Corning 211, 213, Hospital Dist. 55 Cal. (1961), 359 (2d) Pac. 457, 458. “We conclude that rule of school district tort im reason, is munity unjust, valid and unsupported by any has no in modern rightful Molitor v. Kane place day society.” land Unit Dist. Ill. Community 163 N. E. 96. are of the law-review and text-writers’ expressions
Some as follows:
“If in the law is consistency necessary give prestige, remarked, then this as Learned Hand Judge recently Borchard, of in reform.” branch the law is need of greatly Tort, Yale Law in Government Liability Journal 129, 130. turn of scholars commentators since the and
“Legal the confusions condemned unanimously have almost century Smith, Price and tort law.” and contradictions of municipal 6 Uni- A Liability: Continuing Enigma, Tort Municipal 330. Florida Review (1953), Law versity is an active and virile “The today municipal corporation Its civil respon- much harm. creature inflicting capable Harno, Immunity Tort should coextensive.” sibility 4 Illinois Law Quarterly (1921), Municipal Corporations, 28, 42. elimination of for the enough “Haven’t we waited long Casner, and Municipal law?” Fuller from the absurdity Law Review Harvard
Tort Liability Operation, 437, 462. favor world in opinion throughout “An overwhelming for the torts liability of community the assumption as a growing officers bemay regarded representing public moral remain courts should not to which the conviction Comment, for the Municipal Responsibility impervious.” Torts of Policemen, Law Yale Journal able to make inroads has been court “Although immunities, the pres- governmental the effect of mitigating A and unfair. unjust, inequitable, patently inflicted ent law still him damages to recover person’s right should not depend upon or nuisance negligence another’s func- vague governmental principles such nebulous Bern- relationship governed.” governor tion and the stein, Wisconsin, Immunity Liability Governmental Tort Review, Law 1961 Wisconsin *9 36
The immunization of from tort municipalities liability has been a number in chipped of statutes this state. away Stats, 101.06, Some are secs. 101.01 examples and (safe- place statute); sec. 345.05 (1) (c), (2) vehicle (a) (motor 270.58 accidents); sec. (judgments against public officers) and sec. 81.15 defects). (highway
Also, the
judiciary
on the rule
engrafted exceptions
of municipal
from tort claims.
are
Municipalities
responsible
their
negligence occurring
operation
activities.
New
proprietary
Christian v.
London (1940),
123,
621,
234 Wis.
290 N. W.
and Erickson West
v.
Salem
107,
205
236
Wis.
N. W. 579.
(1931),
are
Municipalities
also
for nuisance whether
responsible
acting
govern-
mental or
as
proprietary capacity,
long
the municipality
injured
did not stand in the
party
relationship
governor
Blake v. Madison
governed.
237 Wis.
(1941),
498,
422,
297 N.
W.
Bernstein v. Milwaukee (1914),
576,
Furthermore,
158 Wis.
. . the that no legislature change expression by Ins. made.” Farmers Mut. Automobile be v. Schwenkhoff 6 N. W. Co. 93 (2d) (2d) are doctrine We satisfied that the governmental-immunity consideration, we are careful judicial origins. Upon to now of that it is for this court the opinion appropriate the fail- abolish this immunity legislature’s notwithstanding ure to enactments. corrective adopt in with
A was connection comparable problem presented In Smith v. Congregation doctrine. charitable-immunity 398, 393, St. 61 N. W. (2d) Rose 265 Wis. 896, charitable- noted dissatisfaction with the it was that subject for legisla doctrine was properly However, Hospital in Doctors Kojis ture. 131, N. W.
Wis. (2d) to respect that the doctrine with concluded court as could be court changed by patients paying hospital as well by legislature: if the rule be changed
“The insists defendant not court. This by be should done legislature are to be theory public policy is questions If that were true strictly determined by legislature. in in the doctrine adopting then this court was error perhaps do not think We place. charitable first of that in was justified acting We believe the court true. then existed. conditions they did in 1917 view of as it The decisis, however desirable from the stand- rule stare not us stability, per- does require certainty point longer applicable that should no doctrine petuate charitable hospitals.” changes present-day view the 1962), Yuma (Ariz. v. County In Hernandez of court of Arizona studied pre- supreme Pac. and concluded: the same cisely problem “In Lee v. Dunklee this court refused to recede from the doctrine governmental that the immunity, stating prob- lem was now legislative. We doubts express concerning that statement. a court a rule of law Concededly adopting has the it. power When the reason for the rule abrogate exists, no longer the court’s does not terminate responsibility because the legislature indifference or through otherwise has not acted. can there be no Certainly justification the extension of a rule criticized as an anach- universally ronism without rational basis. It but a requires slight ap- preciation of the facts to realize if the individual citizen is left defective, to bear almost all the risk of a negligent, *11 or perverse, functions, erroneous administration of the state’s an unjust burden will become and more graver frequent as the government’s activities are expanded become more diversified.”
The court of supreme New a reached similar con- Jersey clusion in McAndrew 172, v. Mularchuk 33 (1960), N. J. 193, 820, 162 Atl. 832: (2d) “The that borough argues such any should come change about, all, if at action of the by But legislature. the limita- tion on the normal of operation respondeat was superior originally there the placed by judiciary. it cannot Surely be outmoded, that an urged successfully inequitable, and artificial curtailment of a rule of general action created by the branch judicial of the cannot or government should not be removed its creator.” by
As the court supreme of Washington observed in Pierce Yakima v. Memorial Valley Hospital Asso. 43 162, 178, 765, 774, Wash. 260 (2d) Pac. (2d) “We closed our courtroom doors without legislative and we can help, likewise them.” open
It is also rule is urged that immunity of the part common law which has been this adopted by state and can be 13, only changed by to sec. legislature pursuant art. XIV. The limitation on action judicial implied this by pro- vision of our constitution was examined in Bielski v. Schulze 105, 11, 1, as well 114 N. W. (2d) Wis. (2d) 567, in State Esser (2d) having immunity 505. The doctrine of governmental law of state judicial this by provi been engrafted upon sion, it or abrogated ju we deem that may changed cf. v. Town Kemmerer dicial But provision. Maffei The 338 Pac. Wyo. in Har Florida court of considered problem supreme Beach 96 So. v. Cocoa (Fla. 1957), grove and stated: rule had its inception
“Assuming Case, Devon and most historians legal agree Men did, this case was decided it it should be noted that after our Declaration of twelve years Independ- some our the courts feeling Be that as own may, ence. canWe see no justice. be alive to demands of should matter action in a necessity insisting legislative courts originated.” themselves Scope Abrogation. before court lia relates issue immediately neces for torts. city Abrogation
bility as to the breadth our various questions raises sarily *12 state, for limited example, abroga determination. One McAndrew v. Mular acts commission. negligent tion to 162 Atl. 33 N. chuk (1960), J. limitation, and an unwise we con this is In our opinion, torts, to broadly should abrogation apply sider or omission. commission by be they whether our will be afforded by expression Perhaps clarity for henceforward, far torts responsibility so as governmental is immuni- concerned, is liability exception the rule is —the aof it is the tort liability municipality In determining ty. those its into which to divide operations necessary no longer are Our and which governmental. those are proprietary so as obligation the government’s not broaden does decision to others; it for make all harms responsible it as only to those harms which are torts bodies that governmental are to be liable reason of this decision.
This decision is to be not liabili- interpreted imposing on ty a governmental exercise of its body legislative or or or quasi-legislative functions. quasi-judicial Judicial See Hargrove Cocoa Beach (Fla. So. 1957), Also, the instant decision does not create any for acts a against sheriff liability county which are within the of sec. provisions art. VI the Wisconsin constitution. is,
If the deems it better legislature public policy, course, free to reinstate immunity. also legislature may impose amount of or ad- ceilings damages up set ministrative be requirements may preliminary commencement for an judicial tort. proceedings alleged See, for the notice and example, the limitation provisions 81.15, of the amount of in sec. damages Stats.
Another which we problem foresee regarding scope of this decision is the determination of what bodies public are within the of the of the rule. The scope abrogation case however, at bar relates ato we consider specifically city; the doctrine to all abrogation applies public bodies state, counties, cities, towns, within the state: The villages, districts, districts, districts, school sewer drainage and any other subdivisions of the political state—whether they or not. By reason of the rule of incorporated respondeat shall superior be liable for public body damages officers, torts of its agents, employees occurring course of the business of such public body.
So far as the Wisconsin its state of various arms is concerned, a careful distinction must be made between the and the of the doctrine of a abrogation right to sue the state. The difference between gov- private party
'41 ernmental from torts the sovereign immunity of the state from suit v. recognized was Apfelbacher 565, The State 152 N. 144. Cal- Wis. W. (1915), ifornia constitution has similar to that of Wis- provision far as consin so to sue the state. In right abrogating the doctrine of from tort liability, governmental immunity the court discussed the distinction between tort sued. and consent on the of the state to be part Muskopf 211, 216, v. Dist. Hospital 55 Cal. Corning Pac. (2d) Henceforward, will there be substantive liability state, state is subject of the but the to sue the right part sec. art. IV the Wisconsin constitution which pro- manner vides : “The shall direct law what legislature and in courts the state.” what suits may brought against bar defense The decision the case at removes state’s torts, effect the state’s upon but it no nonliability to be sued only under constitution right upon sovereign its consent. has been construed to re constitutional provision before suit necessary legislation any passage
quire the state. M. & Chicago, commenced St. against bemay 560; 53 Wis. N. W. R. v. State (1881), P. Co. 111; 74 N. W. v. State Houston 366, 218 N. v. State 195 Wis. W. 440. Schlesinger 285.01, Stats., which created sec. the legislature Although state, of suits this against authorized the commencement claims only been construed to those apply section has the state debtor. Houston State render would However, do we 98 Wis. us of sec. 285.01 before not consider the interpretation effect of the abolition of tort no opinion express section of the stat- the construction immunity upon counsel, nor argued by matter has not been briefed utes. The *14 and we will reserve this for determina- question subsequent tion.
Prospective Abrogation. To enable the public bodies to make financial ar- various rangements- to meet the in new this hold- liability implicit the effective ing, date of the abolition of the rule of for shall be governmental torts July 66.18, Stats., See sec. insurance regarding liability for both the state and The new rule shall municipalities. not apply to torts However, before occurring July reasons set in forth in the supplemental opinion Kofis 367, 373, 374, Doctors Hospital 107 N. W. this decision shall at to case apply bar. the Court. —Order reversed.
By Defendant shall have from the date is days the remittitur filed cir- twenty cuit to a court serve responsive pleading.
Currie, I concur (concurring). fully forego- J. However, Mr. I ing deem opinion by it Gordon. Justice to the rationale behind our reversal of necessary explain be the effect to accorded position legislative action bills which have would a rule law defeating abrogated of Heretofore, established this court. this court previously adhered to the view of rejection by legislature bill a constituted a clear character of expression re- intent that the court-made rule was to legislative be that, this court has felt our Up tained. now under three- department system government, comity required determination of within any falling courts yield policy and that the court’s hands legislature, competence a court-made rule which change tied to legislature were .the to be had indicated was retained. plainly However, rationale of our deem that the we fallacy a action defeating pro- former legislative position se rule is a expression per. court-made posed change If were any in the rule. there way acquiescence legislative cast to defeat certitude that all votes with determining in- were intended as legislative a bill of this character of the court- merits of the correctness dorsement on the rule, court to to this of this yield made would the duty *15 However, there is always will. the legislative expression number undeterminable that some the possibility present because, inasmuch as the did voted they of legislators court, this had been adopted by to be sought abrogated rule court, of the or else wisdom deferred to the supposed they correct its own mistakes. the court should determined held I have reversed hitherto my Because of possibility, views, the conclusion that and have come to and expressed face the responsibility changing this court must toup law, interests we deem the rule court-made even though legislature, by be changed, justice require make has refused to short of codification action positive has the last word may still the change. legislature public poli- rule if it determines court-abolished restore the requires. so cy