167 Wis. 392 | Wis. | 1918
It is established by the verdict in this case that Frederick and Schneider were injured; that the conductor of the Traction Company failed to discharge his duty in ascertaining whether the train of the Railway Company was coming over the crossing, and that such failure was a proximate cause of the injuries sustained; that the Railway Company failed to keep a flagman stationed at the crossing in question at the time of the collision, contrary to an ordinance of the city of Neenah, and was guilty of want of ordinary care in failing to do so, but that such want of ordinary care was not a proximate cause of the injuries; that the Railway Company was operating its train at a speed in excess of twelve miles per hour in approaching the crossing and within twenty rods thereof, but that such excessive speed was not a proximate cause of the injury, and that the engi
The court below on motion changed the answers of the jury to the effect that the plaintiff was not the real party in interest and that the excessive rate ef speed was a proximate cause of the injury.
The vital points in controversy in this case are: (1) Was Ellis or the Traction Company the real party in interest? (2) Is the finding of excessive speed supported by the evidence? (3) Was the court right in changing the answer of the jury on the question of proximate cause ? (4) Was the Traction Company entitled to contribution?
1. Separate suits were brought by the injured parties, Frederick and Schneider, against both the Railway Company and Traction Company. The Schneider suit was tried, a .verdict rendered against the Traction Company, and the case afterwards discontinued, a nonsuit having been granted as to the Railway Company. It seems that upon the trial of the case no evidence was offered regarding the negligence of the Railway Company. Afterwards the plaintiff, Ellis, purchased the claims of Frederick and Schneider, took an assignment thereof, borrowed the money from the Traction Company and gave his note therefor, and paid said injured parties the amount agreed upon as consideration of the purchase.
The plaintiff wás a stockholder in the Tractim Company and of course was interested in it. Undoubtedly the belief on the part of the plaintiff that the purpose of the injured
The learned trial judge below seems to have labored under the impression that because Ellis was interested in the Traction Company and because he conferred with other officers of the company who had full knowledge of the facts that the assignments were required for the purpose of avoiding any question of contribution, therefore Ellis took the assignments for tlje Traction Company and that the transfer to him was a mere cover. We think the learned trial judge was in, error in his conclusion in this regard. The mere fact that
Counsel for tke 'Railway Company refers to tke assignment as being a mere cover and fictitious. Tkat is a ratker sweeping statement in a case like tke present, wkere tke evidence of a valid assignment is skown by undisputed evidence and tke claim tkat it was fictitious based almost, if not wkolly, upon tke fact of tke relations existing between plaintiff and tke Traction Company, and wken tkere is positive evidence, undisputed, tkat tke assignment was taken by plaintiff for kimself in kis own rigkt and at kis own risk. Counsel says in looking at suck transactions we must look beneath tke surface. It will not do, however, in looking beneath tke surface to brush aside positive, credible evidence and draw inferences contrary to tke findings of tke jury on suck evidence.
There is no doubt but tkat plaintiff had a rigkt to purchase tke claims in question even though ke intended to benefit tke Traction Company by so doing. Tke evidence is ample to establish tkat he bought tke claims in kis own rigkt and at kis own risk, and tke court below was in error in changing tke answers of tke jury to tke seventeenth and eighteenth questions of tke verdict. Kroger v. Cumberland F. P. Co. 145 Wis. 433, 441, 130 N. W. 513; Habeck v. C. & N. W. R. Co. 146 Wis. 645, 652, 132 N. W. 618; Kersten v. Weichman, 135 Wis. 1, 4, 114 N. W. 499; Karlen v. Hadinger, 147 Wis. 78, 79, 132 N. W. 591.
2. Tke jury found tkat tke defendant Railway Company was running at an excessive rate of speed, viz. in excess of
3. It is further contended by counsel for the Railway Company that the finding of the jury on the tenth question of the special verdict, to the effect that the excessive rate of speed was not a proximate cause of the injury, should not have been changed.
The court below found that the excessive rate of speed was a proximate cause of the injury. Counsel for the Railway Company criticises this finding on the ground that there is no finding as to how much such speed exceeded twelve miles per hour. A careful review of all the evidence shows that the excessive rate of speed was sufficient to cause the collision. It quite clearly appears that had the train been running twelve miles per hour only, the street car would have passed the zone of danger several seconds before the engine reached the point of collision and no collision would have occurred.
Upon the established facts we hold that the excessive rate of speed, in violation of law, was a proximate cause of the injury. It having been established that the Railway Company was violating the law, sec. 1809, Stats., in running at an unlawful rate of speed when the collision occurred, negligence per se on the part of the Railway Company was established. Ludke v. Burck, 160 Wis. 440, 152 N. W. 190; Riggles v. Priest, 163 Wis. 199, 157 N. W. 755.
When, as in the instant case, the unlawful rate of speed | caused or contributed to the injury, proximate cause follows.1' as matter of law. Allen v. Voje, 114 Wis. 1, 89 N. W. 924.
4. The question of contribution between the Railway Com
In our view of the case judgment must go in favor of plaintiff and against the Bailway Company and the Traction Company and may be collected from either, and the question arises whether the company paying the whole judgment may compel the other to contribute. There is much conflict of authority upon the subject. The question has not been settled by this court, although the principle recognizing con- • tribution where there is no wilful or conscious wrong is recognized in former decisions of this court. Estate of Ryan, 157 Wis. 576, 147 N. W. 993; North Hudson Mut. B. & L. Asso. v. Childs, 82 Wis. 460, 52 N. W. 600.
Of course the rule is generally referred to in elementary law books and decisions of courts of last resort to the effect that there can be no contribution between joint wrongdoers, or, as some courts put it, joint tortfeasors. And a general rule is laid down to that effect. But this rule, like other rules, has its exceptions, and the authorities from the English decisions down recognize the exceptions. The logic of the rule that there can be mo contribution between tortfeasors is .based upon the idea that the law will not imply contribution between wrongdoers. Merryweather v. Nixan, 8 T. R. 186; Adamson v. Jarvis, 4 Bing. 66. The rule of the English cases against contribution, however, “is confined to cases where the person seeking redress must be presumed to have ■ known that he was doing-an unlawful act.” Perhaps the strongest English case.against contribution is Merryweather v. Nixan, supra, but the general rule laid down in that case was afterwards limited and explained in later eases, and it may now be regarded settled in England that there can be contribution between tortfeasors, where there was no wilful
In Palmer v. Wick & P. S. S. Co. Ltd., supra, where the injury was due to the negligence of two parties and judgment rendered against them, one party paid the judgment and sued for contribution. Lord Herschell, in delivering the opinions of the Lords, said:
“On principle I can see no reason why, when a joint judgment debt has resulted from a joint wrong, each- codebtor should not pay his share; or why, if one be compelled by the creditor to pay the whole debt, the other should be enabled to • go free by setting up his own wrong. ... It is not necessary in this appeal to decide whether there can be any right to contribution in the case of a delict proper when the liability has arisen from a conscious and therefore moral wrong, nor even whether in every case of qttasLdelict a delinquent may obtain relief against his co-delinquent, though I see, as at present advised, no reason to differ from the opinion, which I gather my, noble and learned friend Lord Watsow holds, that such a right may exist. In circumstances such as those with which your lordships have to deal, I^cannot but think that equity and justice are in favor of the conclusion arrived at by the Inner House, and there seems to be no authority compelling a contrary decision. It was urged that the person seeking relief might be the more culpable of the delinquents; but it is just as likely that he should be the less culpable. In selecting from which of his codebtors he will obtain payment, the creditor would be guided usually by considerations wholly independent of the relative culpability of those from whom he may recover it.
“Much reliance was placed by the learned counsel for the appellant upon the judgment in the English case of Merryweather v. Nixan. The reasons to be found in Lord Ken-yow’s judgment, so far as reported, are somewhat meager, and the statement of the facts of the case is not less so. It is ■ now too late to question that decision in this country; but when I am asked to hold it to be part of the law of Scotland,*405 I am bound to say that it does not appear to me to be founded on any principle of justice or equity, or even of public policy, which justifies its extension to the' jurisprudence of other countries. There has certainly been a tendency to limit its application even in England. . . .”
Coming now to authorities in this country, it must be conceded that there is lack of harmony. A review of all, or the larger portion, of the cáses cited' by counsel would serve no useful purpose. It is sufficient to say that while the general rule is laid .down in many cases and apparently without referring to the exceptions, a large number of the courts of last resort hold that where there is no wilful or conscious wrong there may be contribution between tortfeasors. .
In Jacobs v. Pollard, 10 Cush. 287, the court referred' to the general rule that it was the policy of the law to discountenance all actions in which a party seeks to enforce a demand originating in a wilful breach or violation, on his part, of the legal rights of others, and that courts will not lend their aid to those who found their claims upon illegal transactions, but further said: “It is only when a person knows or must be presumed to know that his act was unlawful that the law will refuse to aid him in seeking an indemnity or contribution.”
In Acheson v. Miller, 2 Ohio St. 203, the court said:
“The rule that no contribution lies between trespassers, we apprehend, is not one of universal application. We suppose it only applies to cases where persons have engaged together in doing wantonly or knowingly a wrong. The case may happen that persons may join in performing an act which to them appears to be right and lawful, but which may turn out to be an injury to the rights of some third party who may have a right to an action of tort against them. In- such case, if one of the parties has been compelled to pay the amount of the damage, is it not reasonable that those who were engaged with him in doing the injury should pay their proportion? The common understanding and justice of humanity would say that it would be just and right that each of the parties to the transaction should pay his proportion of*406 the damages done by their joint act; and we see no reason why the moral sense of a conrt shall he shocked by such a result. And we think this view of the case is fully sustained by the cases cited by counsel for the defendant in error” (quoting Adamson v. Jarvis, supra). “From these and other cases referred to, we think the reasonable and commonsense rule and the legal one are the same, viz.: that when parties think they are doing a legal and proper act contribution will be had; but when the parties are conscious of doing a wrong courts will not interfere.”
In 13 Corp. Jur. pp. 829, 830, §§18-25, the subject is treated and many authorities cited. After stating the general rule that there can be no contribution between tortfeasors, and the reason for such rule, the doctrine is stated thus:
“The general rule that there can be no contribution among wrongdoers has-many exceptions. There is not complete unanimity among the decisions regarding facts which will allow or defeat the right to contribution among tortfeasors, much of the confusion being due to a failure to differentiate between the liability of tortfeasors to third persons and for contribution among themselves. It has been stated that the principle that' no right of contribution exists as between wrongdoers is confined to cases where the transaction is actually illegal or void, or where the fraud is so great that on moral grounds the court will not entertain a suit for the relief of the tortfeasor, and that in cases of quasi-torts only, not involving any moral turpitude or any personal fault, or where the acts are not obviously unlawful, or the parties are not presumed to have known they were doing any wrong, or where their liability is by implication of law merely, then contribution will be enforced.”
Many cases are collected and the general rule and exceptions stated in 6 Ruling Case Law, pp. 1054, 1055, sec. 17, thus:
“It may be said to be the general rule that one of several joint tortfeasors cannot enforce contribution or secure indemnity from any of the other tortfeasors. When parties are equally bound to bear a burden, and are in cequali jure, that*407 is, liable from tbe same circumstances existing as to both, contribution is due of right, in equity, but tbe party who would otherwise be entitled to contribution forfeits such right if the joint liability arose from an act malum in se, a fraud or voluntary tort, in which he participated. The rule is, In pari delicto potior est conditio defendentis. These general principles are, however, subject to many exceptions or limitations which confine the operation of the general rule within very narrow limits. If the parties are not equally criminal, the principal delinquent may be held responsible to his co-delinquent for damages incurred by their joint offense. In respect to offenses, in which is involved any moral delinquency or turpitude, all parties are deemed equally guilty, and courts will not inquire into their relative guilt. But where the offense is merely malum prohibitum, and is in no respect immoral, it is not against the policy of the law to inquire into the relative delinquency of the parties, and to administer justice between them, although both parties are wrongdoers. An exception to the general rule occurs when in the beginning the cotrespassers were not in the wrong, as when they engage in a legitimate undertaking in the pursuance of which they commit a tort unintentionally. Here if one is made to pay the damages he has an undoubted right to contribution. It has been said that the test for determining whether there shall be contribution between cotrespassers is the rule that when parties think that they are doing a legal and proper act contribution will be had; but when the parties are conscious of doing a wrong courts will not interfere. However, the true test would seem to be, Are the parties, as between themselves, wrongdoers? If they are, then they must take advantage of their own wrong in order to recover contribution; if they are not, then it is not necessary for them to allege their own wrong. Whether or not they are as between themselves wrongdoers is determined by the test whether or not they knew or must be presumed to have known that the act was wrongful, and the rule does not apply to a person made a wrongdoer by inference of law only.”
In Herr v. Barber, 2 Mackey, 545, a joint judgment was obtained against three tortfeasors, was paid by one, and contribution sought, and while it was held that contribution in
“The principle that there can be no contribution, at law, enforced by one tortfeasor against the other wrongdoers is limited by the more modern authorities to cases where the transaction out of which the judgment arises involves moral turpitude.”
Nickerson v. Wheeler, 118 Mass. 295, is an action involving the right of contribution between tortfeasors, and the court, after referring to Merryweather v. Nixan, 8 T. R. 186, said:
“But although one may have been made liable in tort, he is not necessarily deprived of contribution from another also originally liable, where the foundation of the action is simply negligence on the part of each in carrying on some lawful transaction.”
In Mayberry v. N. P. R. Co. 100 Minn. 79, 110 N. W. 356, the court said:
“There is, it is true, a general rule that the. right of contribution does not exist as between joint tortfeasors; but it applies only between persons who by concert of action intentionally commit the wrong complained of.”
In Paddock-Hawley I. Co. v. Rice, 179 Mo. 480, 78 S. W. 634, it is held that contribution may be had between tort-feasors where there was “no guilty intent in the tortious act.”
In First Nat. Bank v. Avery P. Co. 69 Neb. 329, 95 N. W. 622, in referring to liability to contribution the court said:
“The general rule that contribution among tortfeasors will not be enforced does not apply where, as in this case, the parties acted in good faith, without any intention of committing a trespass.”
The following cases also sustain the doctrine that where the element of moral turpitude is not involved and there is no wilful or conscious wrong between the parties against whom a judgment in a tort action is recovered, there may be contribution between the tortfeasors: Nashua I. & S. Co. v.
Counsel for the Railway Company relies strongly upon Union Stock Yards Co. v. C., B. & Q. R. Co. 196 U. S. 217, 25 Sup. Ct. 226, while counsel for the Traction Company claim that this case is distinguishable from the instant case mainly on the ground that in the Stock Yards Case the action was for indemnity, not for contribution. The facts in that case are quite different from the facts here, but whether or not it can be distinguished from the instant case we think doubtful. If it cannot, we are not inclined to follow it, since we believe the doctrine stated in the decisions heretofore cited is the more equitable and just doctrine and well supported by authority from the English cases down. The facts out of which the injuries in the present case arose involve no moral turpitude, wilful or conscious wrong on the part of either the Railway Company or the Traction Company, and under such circumstances we think the rule allowing contribution should be followed.
It is true that in the instant case the jury found that the Bailway Company’s train was running at an unlawful rate of speed, therefore there was a technical violation of law. It is quite clear,' however, from the record that the acts of'•the Bailway Company in this regard were not wilful or intentional and involved no conscious wrong. The same may be said of the Traction Company. So it appears from the established facts that the inadvertent acts of both companies concurred in producing the injuries, hence the case is a proper one for contribution between the Bailway Company and the Traction Company.
It follows, therefore, that the judgment must be reversed on both appeals, and the cause remanded with directions to the court below to enter judgment in favor of the plaintiff against the Bailway Company and the Traction Company for the amount of both claims assigned to the plaintiff, and the plaintiff may collect the whole judgment from the Bail-
By the Court. — The judgment is reversed on both appeals, and the cause remanded with instructions to enter judgment in accordance with this opinion with costs in favor of plaintiff against the Railway Company.
