Ertel v. Milwaukee Electric Railway & Light Co.

164 Wis. 380 | Wis. | 1916

EoseNBBRRY, J.

It is alleged that the trial court erred in the following particulars: (1) In denying the Fuel Company's motion to make Muth, the driver of the coal wagon, a party defendant in the action. (2) In denying appellant’s motion to amend its answer so as to allege that the question of the negligence of the driver of appellant’s coal wagon was res adjudicata. (3) In refusing to alloAv the appellant Fuel Company to show by the witness Muth that when he approached the tracks there was in hiq judgment plenty of time for him to cross in safety. (4) In refusing to allow the defendant Fuel Company to offer in evidence the verdict of the jury, order for judgment, and judgment in the case of Muth v. Milwaukee Electric Railway & Light Company. (5) In permitting counsel for the Electric Company to comment "upon the fact that an insurance company was interested in the ■defense. (6) In denying the motion of the Fuel Company, .after verdict, that the judgment contain a clause directing the execution to be first satisfied out of the property of the Electric Company.

Sec. 2610, Stats., is as follows:

“The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, or any persons not parties to the action have such interests in the subject matter of the controversy as require them to be made parties for their due protection, the court shall order them to be brought in; and Avhen in an action for the recovery of real or personal property a person not a party to the action, but having an interest in tbe subject thereof, makes application to the court to be made a party it may order him to be brought in by the proper amendment. A defendant against whom an action is pending upon a contract or for specific real or personal property or for the conversion thereof may, at any time before answer, upon affidavit that a person, not a party to the action and without collusion with him, malms against him a demand for the same debt or property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place and discharge him from liability to either party, on his depositing in court the amount of the debt or delivering the property or its value to such person, as the court may direct; and the court may in its discretion make the order. A defendant who shows by affidavit that if he be held liable in the action he will have a right of action against a third person not a party to the action for the amount of the recovery against him, may, upon due notice to such person and to the opposing party, apply to the court for an order making such third person a party defendant in order that the rights of all parties may be finally settled in one action, and the court may in its discretion make such order. This section shall be liberally construed in order that, so far as practicable, all closely related contentions may be disposed of in one action, even though in the strict sense there be two controversies, provided the contentions relate to the same general subject and separate actions would subject either of the parties to the danger of double liability or serious hardship.”

The Fuel Company, upon the motion to join Muth as a party defendant, contended that the negligence with which it was chargeable, if any, was the negligence of its employee, Muth, that he would therefore be liable over to it, and that the Fuel Company was entitled to have him made a party so that all matters in controversy might be disposed of in one action.

The statute is by its terms permissive. The defendant who shows by affidavit may, upon due notice, have a third person made a party defendant, and the court may in its discretion make such order. We are of the opinion that the application to have Muth made a party defendant was addressed to the sound discretion of the trial court and that the court properly exercised its discretion in this case.

The Fuel Company made a strong effort to have determined upon this trial the question of the liability of the Fuel Company and the Electric Company as between themselves. It must be conceded upon this record that both companies are liable to the plaintiff and that under well established principles of law he has a right to satisfy his claim out of either company. To direct an execution to issue against one or the other of the defendants would amount to depriving the plaintiff of this substantial right. Furthermore, the question as to whether or not either of the defendants is entitled to contribution from the other is a matter with which only the defendants themselves are concerned, and it cannot arise until one or the other has been compelled to bear more than its legal share of the burden. We make no intimation here as to the rights of the defendants against each other. The question may never arise, and until it does it cannot be determined or decided. Therefore we are of the opinion that the trial court was right in denying appellant’s motion to amend its answer and in refusing to permit the Fuel Company to offer in evidence the verdict of the jury and judgment in the case of Muth v. Milwaukee Electric Railway & Light Company, and in denying the Fuel Company’s motion after verdict.

Upon the trial the counsel for the Fuel Company .asked the witness Muth the following question: “State, Mr. Muth, whether or not when you approached the tracks to drive across, and saw the car where you say you did, whether you thought you could pass over it safely or not?” Objection to this question was made and sustained, of which the Fuel Company complains.

We think it was clearly error not to permit the witness Muth to answer this question. Tesch v. Milwaukee E. R. & L. Co. 108 Wis. 593, 84 N. W. 823; Grimm v. Milwaukee E. R. & L. Co. 138 Wis. 44, 119 N. W. 833. While it is error, we cannot upon the whole record say that it constitutes ground for reversal. The testimony of the witness Math, taken as a whole, clearly indicates that he claimed he did see and observe the car and that he thought he could pass the tracks in safety, although he nowhere says so in that many words. However, he should have been permitted to testify to the facts as they appeared to him at the time and his conclusion therefrom as to whether or not he thought he could pass over the tracks in safety.

It appeared upon the trial that certain affidavits had been taken. A witness who made one of the affidavits was asked who took his affidavit, and in reply he said: “Insurance company and Milwaukee Western Fuel Company.” “Q. Insurance company of the Milwaukee Western Fuel Company? A. Yes, sir.” Another witness testified that his affidavit was taken by one who told him he was representing the Milwaukee Western Fuel Company through their insurance company. The affidavits in question were introduced by the Fuel Company, and the fact that the Fuel Company was represented by an insurance company was commented upon by counsel for the Electric Company in his argument to the jury. The trial court, when the matter was called to its attention, during the argument of counsel for the Electric Company to the jury, said: “Gentlemen, you will be governed by your recollection of the evidence in this case in this respect and exclude from consideration anything that is not established by the evidence.” At another time the court said: “I say to you, gentlemen, you will be governed by your recollection of the testimony.” And at the request of counsel for the Fuel Company the court further instructed the jury: “At this time I will say to the jury an insurance company is not the defendant in this action. The defendants are the Milwaukee Western Fuel Company and the Milwaukee Electric Railway & Light Company.”

In this case the fact that the Fuel Company was represented by an insurance company was called ont in connection with the affidavits offered by counsel for the Fuel Company, and in that respect it differs from Faber v. C. Reiss C. Co. 124 Wis. 554, 102 N. W. 1049, and other cases cited to our attention. The remarks complained of could only have served to increase the amount of the verdict, which in this case was reduced by the trial court from $8,000 to $4,000,. and upon the whole record we cannot say that there was material prejudicial error. While the admonition of the trial court might have been more vigorous and emphatic, we think the jury clearly understood that the remarks of counsel objected to were to be disregarded.

By the Court. — Judgment affirmed. Respondent Ertel to recover full costs against appellant. Respondent Milwaukee Electric Railway & Light Company to recover only costs for printing brief.