Vol. 77, No. 12, December
Chief Justice George R. Currie
Conqueror of the Citadel:
A prime intellect on the Wisconsin Supreme Court, Chief Justice
George R. Currie 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.
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
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
Read about Wisconsin's Legal History
This is the ninth and final article on Wisconsin's Supreme
Court justices written between 2002 and 2004, as part of the work of the
Wisconsin Legal History Committee, established to commemorate
significant anniversaries of the Wisconsin Supreme Court, State Bar of
Wisconsin, and Wisconsin Court of Appeals in 2003.
Read Wisconsin's legal history online. "Celebrating
Wisconsin's Rich Legal History," a feature on WisBar, is an archive
of a collection of legal history articles published in the Wisconsin
Lawyer and elsewhere on the Internet documenting important events and
biographies of individuals who shaped Wisconsin's legal history.
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
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
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
The Court Years: Modernizing Contract and Criminal Law
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.
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
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
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.
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
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
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
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.
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
19Bielski, 16 Wis. 2d at
20Currie, supra note 2,
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
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
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
25Borgnis v. Falk Co.,
147 Wis. 327, 133 N.W. 209 (1911); Ranney, supra note 10, at
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
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
29Id. at 383.
30Dippel v. Sciano, 37
Wis. 2d 443, 155 N.W.2d 55 (1967).
31Ranney, supra note 10,
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
35Id. at 686-91,
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
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