195 Wis. 458 | Wis. | 1928
The complaint and answer show the following state of facts:
On February 24, 1926, the defendant, Conrad Asmuth, was driving his automobile- on a public highway in said Racine county, his wife, Loa Asmuth, being with him. Their automobile collided with an automobile driven by Grant, the plaintiff here. Thereafter said Conrad Asmuth and his wife Loa each instituted an action in tort against Grant to
On March 17, 1927, Grant paid in full the said judgment in favor of Loa Asmuth and was released and discharged therefrom, and now seeks to recover from the defendant here one half of the amount so paid.
The judgment of dismissal in the action by Conrad Asmuth was because of a finding by the jury in that trial to the effect that he had failed to exercise ordinary care for his own safety, thereby proximately contributing to the collision. It further appeared from the pleadings that the defendant here was interested in and a witness and testified on behalf of his wife in her action. The answer herein also alleges that the injuries sustained by the said Loa Asmuth were proximately caused by the negligence of the plaintiff, Grant, and not by reason of any negligence on the part of the defendant here.
The theory upon which judgment was here granted in favor of the plaintiff was that the issue as to whether or not there was a want of ordinary care on the part of Conrad Asmuth which proximately contributed to cause the collision and consequent injuries to Loa Asmuth, was fully and finally determined in the former trial by the jury’s finding of Conrad Asmuth’s contributory negligence.
The issue there and thus determined, however, was only this: that some negligence on Conrad Asmuth’s part prevented recovery from Grant for his own injuries. It did not then and there determine the separate and distinct issue of whether Loa Asmuth was entitled to recover from her husband for the same injuries. Upon the .question as to whether
If the respective actions of Conrad and Loa Asmuth against Grant for their injuries had been tried independently, as they must be brought independently (Brickner v. Kopmeier, 133 Wis. 582, 113 N. W. 414), and separate but similar verdicts had been rendered in each as in the joint trial, the finding in such separate trial as to contributory negligence of Conrad Asmuth defeating his right to recover against Grant and the consequent judgment of dismissal would not have been binding for or against Conrad Asmuth in any independent action that Loa Asmuth might have brought against him to recover for the same injuries, either disregarding possible liability of Grant, or on a claim of the two being joint tortfeasors, the parties would have been different and the issues presented would have been different.
Had' Loa Asmuth elected to sue her husband and Grant in the one action as joint tortfeasors, either or both responsible to her for her injuries, then it might well have been therein determined, upon questions framed to meet such an assertion of liability of Conrad Asmuth for her injuries, so that such trial could have settled all and any issues as between Conrad Asmuth and Grant as to their respective responsibility for all or none of the injuries to Loa Asmuth or as to the right of contribution between them. Then we should have had the situation considered and discussed in Wait v. Pierce, 191 Wis. 202, 209 N. W. 475, relied upon by respondent, for, as is pointed out in that case (p. 229), it is
That Conrad Asmuth may have been actively interested on behalf of the wife in her action to recover damages against Grant does not now foreclose him from asserting at the first opportunity, and such as is here presented, a denial of liability on his part for the injuries to his wife.
By the Court. — Judgment reversed, and cause remanded for further proceedings.