Fisher v. Milwaukee Electric Railway & Light Co., 180 N.W. 269

Fisher v. Milwaukee Electric Railway & Light Co.

180 N.W. 269

Wis.

1920

Check Treatment

Lead Opinion

Rosenberry, J.

The order appealed from appears to be inconsistent upon its face. If the cross-complaint be dis*60missed and Rumph be dismissed as a party, the Light Company could not plead over as provided for in the third provision of the order.

It is the contention of the Light Company that it has a remedy over against the defendant Rumph under the principles of subrogation and the provisions of secs. 2610 and 2656a, Stats. Under the facts that appear from the pleadings, it is plain that the plaintiff may recover her entire damages from the Light Company, even though they mаy have been caused in part by the negligent treatment given the plaintiff by the defendant Rumph. Selleck v. Janesville, 100 Wis. 157, 75 N. W. 975. It is contended on behalf of the defendant Rumph that the principles applicable to suits against joint tortfeasors apply here. The argument in support of this contention is unsound. It appears that the liability of the defendant Rumph, if any there be, is due to his want of care and skill as a surgeon, while the liability against the Light Company is due, if any there be, to its failure to exercise ordinary care. They are not ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in any sense of the term joint tortfeasors. The liability of the defendant Rumph to the Light Company does not arise by reason of his liability for contribution in the event of a recovery against the Light Company. His liability is a liability over, and аrises in favor of the Light Company by reason of the fact that the Light Company is compelled to pay damages which are primarily due to the alleged negligence of the defendant Rumph and for which the plaintiff might have maintained an action against .the defendant Rumph. The Light Company, being compelled to pay these damages, is subrogated to the plaintiff’s rights against Rumph, as she may not twice recover compensation for the same injury. It is contended on behalf of the defendаnt Rumph that there can be no right of action in favor of the Light Company against the defendant Rumph until the judgment has been paid, and this, no doubt, is the ordinary rule. *61Defiance M. Works v. Gill, 170 Wis. 477, 175 N. W. 940. This brings us to a consideration of sec. 2610, Stats.:

“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 thаt 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.”

This contention of the defendant Rumph is answered by Brovan v. Kyle, 166 Wis. 347, 165 N. W. 382, where it was held that no argument was needed to show that a surety on a guardian’s bond, if held liable therеon, is pro tanto subrogated to the rights of his ward and may follow the property of the ward’s estate into whosesoever hands it may wrongfully come, and is entitled, under such circumstances, to have a party liable over tо him made a party defendant under the provisions of sec. 2610, even though the judgment had neither been entered nor paid. It is true that Brovan v. Kyle, supra, was an action upon a contract and in that respect differs from the рresent action. But sec. 2610 applies as well to tort actions as to actions upon contract, although the trial court should, in the exercise of its discretion, when called upon, recognize the established distinction between the rights of parties in the two classes of actions. Bakula v. Schwab, 167 Wis. 546, 168 N. W. 378; Humboldt v. Schoen, 168 Wis. 414, 170 N. W. 250; Schmuhl v. Milwaukee E. R. & L. Co. 156 Wis. 585, 146 N. W. 787.

*62•It is further argued that,- under the provisions of sec. 2610, unless a defendant has a right of action over against a third person “for the amount of the recovery against him,” the statute does not authorize such third person to be made a party to the action. In this case, if the plaintiff prevails, the Light Company will not have a cause of 'action over against the defendant Rumph for the full amount of the plaintiff’s recovery against it, for, under such circumstances, a part of the injuries are admittedly due to the negligence of the Light Company. It can at most have a right of action over against the defendant Rumph, upon principles of subro-gation, for only a part of the recovery. In view of the fact that it is provided that the section shall be liberally construed in order that all closely related contentions may be disposed of in one action, even though there be two controversies, we are of the opinion that sec. 2610 confers authority upon the circuit court for Milwaukee county, in the exercise of its discretion, to make Rumph a party defendant in this action. We see no reason why it should not be so construed. The contentions relate ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the same general subject, and it is conceivable that, although the plaintiff recover against the Light Company for damages due to the negligence of the defendant Rumph, a second jury might find against it upon that issue, and the Light Company therefore be compelled to pay damages, as between it and Rumph, not justly chargeable to it, although legally liable therefor to the plaintiff.

It is further contended on behalf of the defendant Rumph that the circuit court may, in the exercise of its discretion, refuse, in a сase within the provisions of sec. 2610, to.make a third person a party defendant. Ertel v. Milwaukee E. R. & L. Co. 164 Wis. 380, 160 N. W. 263. This is undoubtedly the law. But the question of whether or not the circuit court should, in the exercise of its discretion, make Rumph a party defendant, was settled, by the order of September 28, 1918. The court having once exercised its discretion, a review of that order by the circuit court for Milwaukee *63county cannot be had by moving to dismiss the cross-cоmplaint as to Rumph. Whether or not, if motion upon proper showing therefor had been made seasonably by the defendant Rumph, the circuit court might have modified or 'corrected its order., is not determined here. There has been no motion at any time to mcpdify or correct the order of September 18, 1918, and certainly a demurrer to the cross-complaint ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍served pursuant to that order, does not afford а basis upon which the circuit court may proceed to review its prior order. There having been no seasonable motion to review the order, and the order not being appealable (Schmuhl v. Milwaukee E. R. & L. Co., supra), the action of the circuit court making Rumph a party can only be reviewed on appeal from final judgment. Fred Miller B. Co. v. Knebel, 168 Wis. 587, 171 N. W. 69.

The circuit court, therefore, erred in dismissing the complaint and dismissing Rumph as a party. The cross-complaint states a cause of action in favor of the Light Company against Rumph under the provisions of sec. 2610, and the demurrer of Rumph should have been overruled.

By the Court. — Order reversed, with directions to overrule the demurrer and for further proceedings according to law.

Concurrence Opinion

Owek, J.

(concurring). I agree that the original action of the court in bringing in Dr. Charles L. Rumph as a defendant could not in effect be reviewed and set aside in passing upon a demurrer to the crоss-complaint filed by the street railway company against Rumph., and that upon this appeal neither the question of the power nor the propriety of the court, in the exercise of its discretion, to оrder, the bringing in of the defendant Riimph, is before us for review. I cannot refrain, however, from - giving expression to my individual opinion that whether the provisions of sec. 2610 prove a blessing or. a nuisance will depend very muсh upon the wisdom exercised in its administration. In order to *64accomplish the beneficent purposes intended by its enactment, its scope was necessarily made quite broad, and the question of whether, in a given case, the power conferred should be exercised was committed to the discretion of the trial court. The purpose of the enactment was to facilitate and expedite the dispatch ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of litigation and provide for the settling of all closely related questions in one action. It is obvious that this often may be done without imposing additional burden, hardship, or delay upon the original parties to the action, and that under such circumstances the administration of justice is greatly facilitated.

I think the present case forcibly illustrates the fact that the evils resulting from the exercise of the discretion may far outweigh the benefits to be accomplished, and that an unwise exercise of the power conferred can easily bring the statute into disrepute, which will result in its emasculation or repeal, with thе consequence of serious loss to the administration of the law. I can see no purpose to be sub-served or accomplished in burdening plaintiff’s case with this cross-issue between the street railway сompany and the doctor. The two issues are as foreign to each other as they well could be. The plaintiff is not at all interested in the issue raised by the cross-complaint, and it would not be- surprising if its trial should сonsume much more time than the trial of the main issue between the plaintiff and the street car company. During all the time, however, the plaintiff must be present with her witnesses and she must pay her attorneys for being in аttendance, while the issue in which she is not at all interested is being tried out, which may in the end result in a mere moot question, because, unless plaintiff recovers against the street car. company, the malpractice of the physician does not become material, and the time of the court and litigants will have been taken up with the trial of a moot issue. Furthermore, the plaintiff is entitled to the honest co-оperation of her physician. She is entitled to his honest and unprejudiced testimony concerning her condition. This proceeding makes him an interested party *65against her, as, if he is to be called upon to stand a portion of the damages resulting from her present condition, it is to his interest to minimize the damages to which she may be entitled. Then, again, the progress of her entire action is made to depend upon the progress of the cross-issue. The trial of her case has been held up pending this appeal. Many matters growing out of the cross-action may occur from time to time to delay the trial of the case, all to her prejudice, without any compensating results, so far as I can see, in the matter of speeding the administration of justice.

Trial courts should appreciate the responsibility which thе statute lays upon them. Whether additional parties shall be brought in is always a matter for the exercise of wise discretion under the circumstances. The power was conferred so that by its exercise the administration of justice maybe facilitated and expedited, and whether in a given case the bringing in of new parties will, have this effect calls for the serious consideration of the court. Where it will delay, hamper, on burden the plaintiff, it should appear pretty plainly that, in the end, benefits in the nature of general results will outweigh the inconvenience, annoyance, and expense which the bringing in of‘new parties will impose-upon the plaintiff, or the application should be denied.