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*Note: The following opinion was edited by AudioCaseFiles' staff.
© 2007 AudioCaseFiles, LLC.

Breunig v. American Family Insurance Co.
173 N.W.2d 619
Supreme Court of Wisconsin, 1970

Hallows, C. J.

There is no question that Erma Veith was subject at the time of the accident to an insane delusion which directly affected her ability to operate her car in an ordinarily prudent manner and caused the accident. The specific question considered by the jury under the negligence inquiry was whether she had such foreknowledge of her susceptibility to such a mental aberration, delusion or hallucination as to make her negligent in driving a car at all under such conditions.

At the trial Erma Veith testified she could not remember all the circumstances of the accident and this was confirmed by her psychiatrist who testified this loss of memory was due to his treatment of Erma Veith for her mental illness. This expert also testified to what Erma Veith had told him but could no longer recall. The evidence established that Mrs. Veith, while returning home after taking her husband to work, saw a white light on the back of a car ahead of her. She followed this light for three or four blocks. Mrs. Veith did not remember anything else except landing in a field, lying on the side of the road and people talking. She recalled awaking in the hospital.

The psychiatrist testified Mrs. Veith told him she was driving on a road when she believed that God was taking ahold of the steering wheel and was directing her car. She saw the truck coming and stepped on the gas in order to become airborne because she knew she could fly because Batman does it. To her surprise she was not airborne before striking the truck but after the impact she was flying.

Actually, Mrs. Veith's car continued west on Highway 19 for about a mile. The road was straight for this distance and then made a gradual turn to the right. At this turn her car left the road in a straight line, negotiated a deep ditch and came to rest in a cornfield. When a traffic officer came to the car to investigate the accident, he found Mrs. Veith sitting behind the wheel looking off into space. He could not get a statement of any kind from her. She was taken to the Methodist Hospital and later transferred to the psychiatric ward of the Madison General Hospital.

The psychiatrist testified Erma Veith was suffering from "schizophrenic reaction, paranoid type, acute." He stated that from the time Mrs. Veith commenced following the car with the white light and ending with the stopping of her vehicle in the cornfield, she was not able to operate the vehicle with her conscious mind and that she had no knowledge or forewarning that such illness or disability would likely occur.

The insurance company argues Erma Veith was not negligent as a matter of law because there is no evidence upon which the jury could find that she had knowledge or warning or should have reasonably foreseen that she might be subject to a mental delusion which would suddenly cause her to lose control of the car. Plaintiff argues there was such evidence of forewarning and also suggests Erma Veith should be liable because insanity should not be a defense in negligence cases.

The case was tried on the theory that some forms of insanity are a defense to and preclude liability for negligence under the doctrine of Theisen v. Milwaukee Automobile Mut. Ins. Co.. We agree. Not all types of insanity vitiate responsibility for a negligent tort. The question of liability in every case must depend upon the kind and nature of the insanity. The effect of the mental illness or mental hallucinations or disorder must be such as to affect the person's ability to understand and appreciate the duty which rests upon him to drive his car with ordinary care, or if the insanity does not affect such understanding and appreciation, it must affect his ability to control his car in an ordinarily prudent manner. And in addition, there must be an absence of notice or forewarning to the person that he may be suddenly subject to such a type of insanity or mental illness.

In Theisen we recognized one was not negligent if he was unable to conform his conduct through no fault of his own but held a sleeping driver negligent as a matter of law because one is always given conscious warnings of drowsiness and if a person does not heed such warnings and continues to drive his car, he is negligent for continuing to drive under such conditions. But we distinguished those exceptional cases of loss of consciousness resulting from injury inflicted by an outside force, or fainting, or heart attack, or epileptic seizure, or other illness which suddenly incapacitates the driver of an automobile when the occurrence of such disability is not attended with sufficient warning or should not have been reasonably foreseen.

Theisen followed Eleason v. Western Casualty & Surety Co. and Wisconsin Natural Gas Co.. In Eleason we held the driver, an epileptic, possessed knowledge that he was likely to have a seizure and therefore was negligent in driving a car and responsible for the accident occurring while he had an epileptic seizure. In Wisconsin Natural Gas Co. v. Employers Mut. Liability Ins. Co., supra, the sleeping driver possessed knowledge that he was likely to fall asleep and his attempts to stay awake were not sufficient to relieve him of negligence because it was within his control to take effective means to stay awake or cease driving.

There are authorities which generally hold insanity is not a defense in tort cases except for intentional torts. Restatement, Torts, 2d. These cases rest on the historical view of strict liability without regard to the fault of the individual. Prosser, in his Law of Torts (3d ed.), states this view is a historical survival which originated in the dictum in Weaver v. Ward, when the action of trespass still rested upon strict liability. He points out that when the modern law developed to the point of holding the defendant liable for negligence, the dictum was repeated in some cases.

The policy basis of holding a permanently insane person liable for his tort is: (1) Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it; (2) to induce those interested in the estate of the insane person (if he has one) to restrain and control him; and (3) the fear an insanity defense would lead to false claims of insanity to avoid liability. These three grounds were mentioned in the Guardianship of Meyer, where a farm hand who was insane set fire to his employer's barn. The insurance company paid the loss and filed a claim against the estate of the insane person and was allowed to recover. . . .

We think the statement that insanity is no defense is too broad when it is applied to a negligence case where the driver is suddenly overcome without forewarning by a mental disability or disorder which incapacitates him from conforming his conduct to the standards of a reasonable man under like circumstances. These are rare cases indeed, but their rarity is no reason for overlooking their existence and the justification which is the basis of the whole doctrine of liability for negligence, i.e., that it is unjust to hold a man responsible for his conduct which he is incapable of avoiding and which incapability was unknown to him prior to the accident.

We need not reach the question of contributory negligence of an insane person or the question of comparative negligence as those problems are not now presented. All we hold is that a sudden mental incapacity equivalent in its effect to such physical causes as a sudden heart attack, epileptic seizure, stroke, or fainting should be treated alike and not under the general rule of insanity.

An interesting case holding this view in Canada is Buckley & Toronto Transportation Comm. v. Smith Transport, which is almost identical on the facts with the case at bar. There, the court found no negligence when a truck driver was overcome by a sudden insane delusion that his truck was being operated by remote control of his employer and as a result he was in fact helpless to avert a collision. . . .

The question is whether she had warning or knowledge which would reasonably lead her to believe that hallucinations would occur and be such as to affect her driving an automobile. Even though the doctor's testimony is uncontradicted, it need not be accepted by the jury. It is an expert's opinion but it is not conclusive. It is for the jury to decide whether the facts underpinning an expert opinion are true. The jury could find that a woman, who believed she had a special relationship to God and was the chosen one to survive the end of the world, could believe that God would take over the direction of her life to the extent of driving her car. Since these mental aberrations were not constant, the jury could infer she had knowledge of her condition and the likelihood of a hallucination just as one who has knowledge of a heart condition knows the possibility of an attack. While the evidence may not be strong upon which to base an inference, especially in view of the fact that two jurors dissented on this verdict and expressly stated they could find no evidence of forewarning, nevertheless, the evidence to sustain the verdict of the jury need not constitute the great weight and clear preponderance.

The insurance company claims the jury was perverse because the verdict is contrary both to the evidence and to the law. We think this argument is without merit. For a verdict to be perverse, there must be something to warrant a finding that considerations, which were ulterior to a reasonably fair application of the judgment of the jury to the evidence under the court's instructions, controlled or materially influenced the jury. . . .

By the Court. -- Judgment affirmed.

This case is in these books

• Cases and Materials on Torts
• Epstein
• 8th Edition