Vol. 77, No. 12, December 2004

Chief Justice George R. Currie
Conqueror of the Citadel:

by Joseph A. Ranney

f the more than 75 men and women who have served on the Wisconsin Supreme Court, only a few have led important law reform movements. George R. Currie, who served as a justice from 1951 - 1964 and as chief justice from 1964 - 1968, was one of these leaders. Currie was recognized as "the prime intellect on the supreme court" during the 1950s and 1960s, and he made Wisconsin one of the leaders of the mid-20th century movement to modernize tort and contract law by eliminating the "citadel" of traditional limits on liability.¹ In order to modernize the law, he had to persuade the court to depart from its traditional view of common law as an immutable set of rules changeable only by the legislature. Mirroring the activist sentiments displayed by the U.S. Supreme Court under Chief Justice Earl Warren, Currie and his colleagues concluded that when the legislature did not change common law rules quickly enough to meet contemporary social needs, the court would step in and do so.² Currie thus played a key role in shaping the contours of modern Wisconsin law.

Life Before the Court (1900-51)

George Currie was born into a middle-class family in Montello, Wis., in 1900. He demonstrated an intellectual bent early in life. After graduating from Oshkosh State Teachers College (now U.W.-Oshkosh) in 1919, he spent three years teaching before deciding to go into the law. He was a star student at the U.W. Law School, serving as editor in chief of the Wisconsin Law Review and graduating first in his class in 1925. After graduation, Currie moved to Sheboygan, where he spent the next quarter century primarily practicing corporate and labor law.³

Currie was active in community affairs and in Republican Party circles, but he was not a vigorous partisan and he never held public office before joining the court. He became known among lawyers throughout the state for his energy, ability, and fair-mindedness. As one of his colleagues put it, "He doesn't care to have people praise him, he just wants to do things." Such traits were sufficient to persuade Gov. Walter Kohler to appoint Currie to replace a resigning justice in 1951.⁴

The Court Years: Signals of Change (1951-52)

At the time Currie joined the court, a movement was under way to loosen traditional rules of privity in tort and contract law. The traditional rules had two components. The first was that participants in arm's-length transactions could only be liable to those with whom they had direct contact; the second was that for policy reasons, municipalities and charitable organizations would be largely exempt from liability for negligence, and family members would be immune from liability claims by other family members. Such rules had worked well during the United States' early years when most business and social transactions were conducted face-to-face and most Americans lived and worked together in small, close-knit communities. But the industrial and transportation revolutions of the 19th century gave rise to many situations in which a breach of contract or a negligent act could cause injury to persons and property far away from the actor. Most courts retained traditional rules of privity to encourage industry and entrepreneurialism,⁵ but beginning around 1890 some scholars and judges, including Oliver Wendell Holmes, urged that the rules be modified to reflect the "felt necessities of the times."⁶

The reform movement produced some modest legal changes in Wisconsin and elsewhere during the early 20th century, but progress was slow. Many courts believed they could not change common law rules of tort and contract and that only legislatures could do so.⁷ But in the 1940s and early 1950s courts in several states, most notably California and New Jersey, began to take a more activist approach to breaking down privity barriers to liability in arm's-length transactions.⁸ Under Currie's leadership, the Wisconsin court soon followed suit.

Currie gave the first signal of change in 1952 in Pfeifer v. Standard Gateway Theater Inc.⁹ Pfeifer was the culmination of a long debate within the court as to whether the scope of liability for negligence was best delineated in terms of "duty" or in terms of acts sufficiently "proximate" to ensuing injuries to warrant imposition of liability.¹⁰ Previous decisions had assumed the two concepts were mutually exclusive, but Currie took the novel view that both could be applied where appropriate. Speaking for the court, he concluded in sweeping terms that judges had power "to hold as a matter of law that there is no liability... in cases so extreme that it would shock the conscience of society to impose liability."¹¹

The Court Years: Abolishing Immunities and Changing the Common Law (1953-62)

In two other cases decided in the same term as Pfeifer, the court considered whether the time had come to abolish municipal and charitable immunities. It stopped short of doing so, but at Currie's urging it served notice on the legislature that new laws should be enacted in order to avoid further court action.¹² "This court," Currie warned, "has long felt that the reasons for granting such immunity... are archaic, and if this court... were passing on the question for the first time, we would accord very little weight to the historical reasons originally advanced in support of the rule of immunity."¹³

The Wisconsin Legislature considered Currie's suggestion but ultimately failed to act, and the court then took the final step of abolishing the immunities. In 1961's Kojis v. Doctors Hospital, the court abolished traditional charitable immunity, and the next year, in Holytz v. Milwaukee, it abolished municipal immunity.¹⁴

Currie and his colleagues were not concerned about possible adverse public reaction to their rulings. In the late 1950s and early 1960s many Americans had come to accept (with varying degrees of enthusiasm) the fact that they were living through a period of social change and that such change was inevitable. The Warren Court had paved the way for federal and state courts to participate in such change.¹⁵ Indeed, Currie and his colleagues sensed that Wisconsinites believed reform was overdue. In Holytz, for example, the justices expressed discomfort at defending an archaic municipal immunity doctrine that was "knee-deep in legal esoterica" and in "highly artificial judicial distinctions."¹⁶

The court was more concerned about whether it had power to modify the common law under the Wisconsin Constitution. The constitution provided that the common law in force when Wisconsin attained statehood in 1848 "shall ... continue part of the law of this state until altered or suspended by the legislature." The constitution did not give the court power to alter the common law, and before 1961 the court had held on several occasions that it possessed no such power.¹⁷

The court had circumvented this obstacle by holding that the constitution did not preclude it from promulgating common law rules that were only "implicit" before 1848 and, in some cases, by characterizing its holdings as "supplemental" to the common law. But in 1962 in Bielski v. Schulze the court abandoned these devices, reversed its earlier practice, and proclaimed that because common law was made by judges it also could be changed by judges.¹⁸ Currie explained the new departure in words that Justice Holmes surely would have approved: "Inherent in the common law," said Currie, "is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose."¹⁹

In later years, Currie took great pride in his decisions in Holytz and Bielski and made no apology for his activism. "Where a judge-made rule is determined to work injustice," he stated, "the court has a responsibility to change the rule and should not shirk this responsibility by leaving such change to the legislature."²⁰

The court and the legislature had begun the work of abolishing tort immunities among family members before Currie took the bench,²¹ and during Currie's time the court completed the work, albeit with some compunction. In 1958 in Schwenkhoff v. Farmers Mutual Automobile Insurance Co. the court balked at abolishing parent-child tort immunity and suggested that any such change should come from the legislature; but five years later, in Goller v. White, Currie persuaded his colleagues to reverse themselves and extinguish this final family immunity.²² Realizing that many Wisconsinites still supported traditional family immunities and feared that abolition of such immunities would harm the family structure, Currie took pains to explain the court's position to the public. He reassured Wisconsinites that insurance companies, not family members, would bear the brunt of liability, and he noted that past abolition of other family immunities (such as husband-wife immunities) had not resulted in widespread lawsuits and family discord. Currie also emphasized that children could not sue their parents for injuries resulting from the exercise of "ordinary parental discretion."²³

The Court Years: Modernizing Product Liability Law (1958-67)

Currie also played a key role in the court's decision to abolish traditional concepts of privity in product liability law. In response to the criticisms made by Holmes and others, the Wisconsin Supreme Court between 1890 and 1930 expanded manufacturer liability to cover injuries to ultimate purchasers and to cover negligent product design as well as negligent manufacturing.²⁴ But the court did not take the next step: namely, shaping product liability law to accommodate the fact, increasingly accepted by business interests and consumers alike, that product accidents are an inevitable by-product of an industrial society oriented to mass manufacturing and that compensation for such injuries should be based on the most efficient social allocation of costs rather than purely on traditional notions of fault. The court had previously welcomed the legislature's creation of a no-fault worker's compensation system that removed workplace accidents from the traditional tort law system,²⁵ but the court was reluctant to accept the same principle in the context of product accidents unless the legislature acted first.

Beginning in the 1940s, courts in a few states set aside such reservations and developed a new doctrine of strict liability designed to allow recovery in all tort and contract cases involving a defective product regardless of whether the manufacturer was negligent or could have prevented the defect.²⁶ Wisconsin initially viewed the movement with caution. The court declined several invitations to take a first step by eliminating the privity requirement in cases in which accident victims alleged the manufacturer had breached a warranty of product fitness. Such claimants still had to prove they were in privity with the manufacturer.²⁷

But in 1959 in Smith v. Atco Co., the court reversed course and flatly eliminated the privity requirement.²⁸ Writing for the court, Currie bluntly signaled the court's impatience with the lack of legislative reform and the court's decision to shed traditional inhibitions against changing the common law. "We deem," he said, "that the time has come for this court to flatly declare that in a tort action for negligence against a manufacturer, or supplier, whether or not privity exists is wholly immaterial."²⁹ A few years later, during Currie's last term on the bench, the court completed the 20th century product liability law revolution by adopting a broad rule of strict product liability in tort, under which manufacturers were liable for injuries caused by defective products whenever such products were expected to reach the consumer without substantial change in their condition, regardless of whether the manufacturer had been negligent.³⁰

The Court Years: Modernizing Contract and Criminal Law (1962-68)

Currie was also the author of an opinion in which the court adopted "perhaps the most important and controversial innovation in 20th century American contract law" - promissory estoppel.³¹ Before 1900 most courts held that only explicit, mutual agreements created legally binding obligations. Situations in which the actions of one party had created a moral obligation on its part or had reasonably induced another to act in reliance on such actions did not create legal liability.³² In the 1930s a group of contract law scholars led by Prof. Arthur Corbin of Yale urged adoption of a promissory estoppel doctrine under which any promise that the promisor should reasonably have expected to induce action by another would be enforced to "avoid injustice." The doctrine was "perhaps the most openly social doctrine ever introduced into contract law, focusing as it did on the unilateral expectation of one contracting party and society's moral judgment that that expectation should be enforced."³³

The doctrine made only modest headway in American state courts until Wisconsin in 1965 became the first state to explicitly adopt the doctrine in an undiluted form, in Hoffman v. Red Owl Stores Inc.³⁴ In Hoffman, a grocery company assured the plaintiff that he could buy a franchise if he sold his old business and spent time and money learning the grocery business and opened a store. The plaintiff performed these acts, but the company then refused to award the franchise. Currie concluded that these facts showed promissory estoppel was "a needed tool which courts may employ in a proper case to prevent injustice" and that the plaintiff should at least recover a sum sufficient to prevent such injustice, even though he and the company had not worked out all the details of their agreement.³⁵ In addition to eliminating total mutual agreement as a precondition of contract liability, Currie and his colleagues indicated that liability could be imposed based on statements made during negotiations, thus creating for the first time a duty of good faith in contract negotiations. Currie's Hoffman opinion attracted national attention. Public reaction was mixed, and Currie's colleagues made clear after his retirement that the doctrine would be applied sparingly, but Hoffman remains the most important Wisconsin contract case of the 20th century.³⁶

Currie also quietly contributed to an important change in Wisconsin's criminal law in the late 1950s. Since statehood, Wisconsin's criminal insanity defense had followed the traditional M'Naghten's (1843) formula, which stated that to avoid conviction on the ground of insanity a defendant must show that he was "laboring under such a defect of reason... as not to know the nature and quality of the act he was doing or ... that he did not know what he was doing was wrong."³⁷ In the early 20th century, psychiatric research gave rise to a new concept of psychopathy that postulated that humans could recognize the nature and moral quality of their acts but at the same time be unable to act in accordance with their moral cognition. In response, during the early 1950s some courts moved to the Durham test, which exculpated defendants from criminal liability in all situations in which their acts were "the product of mental disease or mental defect."³⁸ Currie advocated adopting a modified form of the Durham test, arguing that the M'Naghten standard was outmoded.³⁹ In 1962 he failed by one vote to persuade the court to combine elements of M'Naghten and Durham and expand the insanity defense to certain situations in which a defendant acted under "irresistible impulse."⁴⁰ But shortly after Currie left the bench, his colleagues reconsidered and agreed to try his proposed test, which subsequently was adopted by the legislature.⁴¹

The Later Years (1968-83)

Currie's tenure on the court came to an abrupt end (and to many observers, a shocking one) in 1968 when he was defeated for reelection by circuit judge Robert W. Hansen of Milwaukee. It is not entirely clear why Wisconsin voters rejected Currie in favor of Hansen. One writer has attributed Currie's defeat to an unpopular 1965 court decision upholding the right of the Milwaukee Braves baseball team to move to Atlanta and to the fact that under then-existing state law, Currie would have had to retire only two years later when he reached age 70.⁴² Currie also was in the unfortunate position of being an incumbent in a year of general discontent with incumbents.

Ranney

Joseph A. Ranney, Yale 1978, is a trial lawyer with DeWitt Ross & Stevens S.C., Madison. He is the author of Trusting Nothing to Providence: A History of Wisconsin's Legal System (1999) and has taught as an adjunct professor at Marquette University Law School.

After his defeat Currie taught at the U.W. Law School for two years. He was then appointed by President Richard Nixon to a committee responsible for creating a national federally funded legal services program for indigent persons. Currie's efforts to overcome then-Gov. Ronald Reagan's hostility to the program in California caused Reagan to term Currie "a radical from a radical state." After the commission completed its work, Currie returned to private life; he died in 1983.⁴³

The "radical" label Reagan applied to Currie must have amused the former chief justice, who was the most mild-mannered of men, was a lifelong Republican, and was a pillar of the Sheboygan community and of his state. Nevertheless, there is a grain of truth in the label. During his time on the court, Currie saw need for substantial change in many areas of the law - tort, contract, and criminal. His unassuming nature led him to defer to the legislature initially, but his deference had limits: when the legislature did not act, he persuaded his colleagues to act instead.

Currie's judicial style is an interesting mix of characteristics that stand out in clear relief when he is compared with the great justices who preceded him. Like John Winslow,⁴⁴ Currie was modest and likable, and those traits served him well in influencing his colleagues. Currie did not have as forceful a personality as Edward Ryan or Marvin Rosenberry,⁴⁵ but like those justices he maintained a vigilant lookout for needed reforms, and when the court adopted reforms, he explained the need for them to the public in unusually frank terms.

Currie also can be usefully compared to Earl Warren. Like Chief Justice Warren, Currie served on the bench at a time of great legal and social change. Like Warren, he was comfortable with the judiciary taking an active role in the process of change, and he was not shy about overruling past court decisions when he felt change was warranted. Because of Currie's efforts, Wisconsin is generally recognized as one of the leaders in reshaping 20th century American tort and contract law.⁴⁶ Accordingly, Currie ranks as one of the most important members of the Wisconsin Supreme Court in the 20th century; a strong case can be made that he also is was one of the most important American state supreme court judges of the period.

Endnotes

¹Trina E. Gray et al., eds., Portraits of Justice: The Wisconsin Supreme Court's First 150 Years 50 (2d ed.: Madison, 2003); see William L. Prosser, The Fall of the Citadel, 50 Minn. L. Rev. 791 (1966).

²See George R. Currie, The Wisconsin Supreme Court and the Common Law Tradition, 1971 Wis. L. Rev. 818 (1971).

³Gray et al., supra note 1, at 59-60; Dedication: George R. Currie, 1970 Wis. L. Rev. 963, 963 (1970).

⁴Jacob F. Federer, George R. Currie, 1970 Wis. L. Rev. 964, 966 (1970).

⁵See G. Edward White, Tort Law in America: An Intellectual History 12-13, 92-96 (1980); Morton J. Horwitz, The Transformation of American Law, 1780-1860, at 201-10 (1977); Morton J. Horwitz, The Transformation of American Law, 1870-1960, at 54-58 (1992).

⁶Horwitz, The Transformation of American Law, 1870-1960, supra note 5; see also The Theory of Torts, 9 Am. L. Rev. 652 (1873), (an influential essay that scholars have attributed to Holmes).

⁷See, e.g, Wait v. Pierce, 191 Wis. 202, 209 N.W. 475 (1926); Wick v. Wick, 192 Wis. 260, 212 N.W. 787 (1927).

⁸Lawrence M. Friedman, American Law in the 20th Century 355-61(2002).

⁹262 Wis. 229, 55 N.W.2d 29 (1952).

¹⁰See, e.g., Kellogg v. Chicago & Northwestern R. Co., 26 Wis. 223 (1870); Osborne v. Montgomery, 203 Wis. 223, 234 N.W. 372 (1931); Waube v. Warrington, 216 Wis. 603, 258 N.W. 497 (1935); Joseph A. Ranney, Trusting Nothing to Providence: A History of Wisconsin's Legal System 429-32 (1999).

¹¹Pfeifer, 262 Wis. at 238.

¹²Britten v. Eau Claire, 260 Wis. 382, 51 N.W.2d 30 (1952); Smith v. Congregation of St. Rose, 265 Wis. 393, 61 N.W.2d 896 (1953).

¹³Smith, 265 Wis. at 397.

¹⁴Kojis v. Doctors Hospital, 12 Wis. 2d 367, 107 N.W.2d 131 (1961); Holytz v. Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962); Ranney, supra note 10, at 436-40.

¹⁵See Friedman, supra note 8, at 288-90, 311-17.

¹⁶Holytz, 17 Wis. 2d at 30, 32; see also Kojis, 12 Wis. 2d at 372.

¹⁷Wis. Const. (1848), Art. XIV, § 13; see Schwanke v. Garlt, 219 Wis. 367, 263 N.W. 176 (1935) and other authorities cited in Currie, supra note 2, 1971 Wis. L. Rev. at 819-22.

¹⁸16 Wis. 2d 1, 114 N.W.2d 115 (1962); see also State v. Esser, 16 Wis. 2d 567, 115 N.W.2d 505 (1962).

¹⁹Bielski, 16 Wis. 2d at 11.

²⁰Currie, supra note 2, at 827.

²¹See Wait, 191 Wis. at 210-12; Beilke v. Knaack, 207 Wis. 490, 242 N.W. 176 (1932); Munsert v. Farmers Mut. Auto. Ins. Co., 229 Wis. 581, 281 N.W. 671 (1939); Wis. Laws 1974, ch. 164; Ranney, supra note 10, at 432-36.

²²Schwenkhoff v. Farmers Mut. Auto. Ins., 6 Wis. 2d 44, 93 N.W.2d 867 (1958); Goller v. White, 20 Wis. 2d 402, 122 N.W.2d 193 (1962).

²³Goller, 20 Wis. 2d at 413.

²⁴See, e.g., Bright v. Barnett & Record Co., 88 Wis. 299, 60 N.W. 418 (1894); Coakley v. Prentiss-Wabers Stove Co., 182 Wis. 94, 195 N.W. 388 (1923); Flies v. Fox Bros. Buick Co., 196 Wis. 196, 218 N.W. 855 (1928); see also Ranney, supra note 10, at 444-49.

²⁵Borgnis v. Falk Co., 147 Wis. 327, 133 N.W. 209 (1911); Ranney, supra note 10, at 344-55.

²⁶See, e.g., Escola v. Coca-Cola Bottling Co., 150 P.2d 436 (Cal. 1944); Henningsen v. Bloomfield Motors Inc., 161 A.2d 69 (N.J. 1960); Prosser, supra note 1, passim; White, supra note 5, at 108-10, 168-73.

²⁷See Cohan v. Associated Fur Farms Inc., 261 Wis. 584, 53 N.W.2d 788 (1952); Kennedy-Ingalls Corp. v. Meissner, 5 Wis. 2d 100, 92 N.W.2d 247 (1958).

²⁸6 Wis. 2d 371, 94 N.W.2d 697 (1959).

²⁹Id. at 383.

³⁰Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55 (1967).

³¹Ranney, supra note 10, at 479.

³²Ranney, supra note 10, at 479; Kevin M. Teeven, A History of the Anglo-American Common Law of Contract 181, 231-35 (1990); see also Horwitz, The Transformation of American Law 1780-1860, supra note 5, at 48-49, 70-81, 175-202.

³³Restatement of Contracts § 90 (1932); Ranney, supra note 10, at 479-80; Friedman, supra note 8, at 382-83.

³⁴26 Wis. 2d 683, 133 N.W.2d 267 (1967).

³⁵Id. at 686-91, 696.

³⁶See Teeven, supra note 32, at 259; Grant Gilmore, The Death of Contract 68-75 (1974); Silberman v. Roethe, 64 Wis. 2d 131, 218 N.W.2d 723 (1974); Rossow Oil Co. v. Heiman, 72 Wis. 2d 696, 242 N.W.2d 176 (1976).

³⁷See Wallace A. MacBain, The Insanity Defense: Conceptual Confusion and the Erosion of Fairness, 67 Marq. L. Rev. 1, 36 (1983); Ranney, supra note 10, at 509-10.

³⁸Durham v. United States, 214 F.2d 862, 874-75 (D.C. Cir. 1954); Ranney, supra note 10, at 510-12.

³⁹George R. Currie, McNaghten: Yes Or No?, 34 Wis. B. Bull. 36 (April 1961).

⁴⁰State v. Esser, 16 Wis. 2d 567, 115 N.W.2d 505 (1962); compare Oborn v. State, 143 Wis. 249, 126 N.W. 737 (1910).

⁴¹State v. Shoffner, 31 Wis. 2d 412, 143 N.W.2d 458 (1966); Laws of 1969, ch. 255.

⁴²Gray, supra note 1, at 60.

⁴³Id.

⁴⁴See Joseph A. Ranney, Chief Justice John Winslow: Stretching the Procrustean Bed, 76 Wis. Law. 22 (May 2003).

⁴⁵See Joseph A. Ranney, Chief Justice Edward G. Ryan: "A World in Which Nothing Is Perfect," 75 Wis. Law. 18 (Sept. 2002); Ranney, supra note 10, at 381-88.

⁴⁶See Robert E. Keeton, Judicial Law Reform - A Perspective on the Performance of Appellate Courts, 44 Tex. L. Rev. 1254, 1255-58 (1966).

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