*1 to accede to a reasonable his and request by employer that, insubordination. It further me view appears attitude, other difficulties were bound occur during balance of the term which would necessarily been detrimental to the school and the students. In my opin- ion the school board entirely justified terminating plaintiffs contract. I am authorized to state that Mr. concurs Brown Justice
in this dissent. Plaintiff, another, vs. and Rusch, Defendants another, Appellants: Defend Impleaded Heimerl ants and Respondents.*
November 5 December 1957. * denied, costs, rehearing without on April Motion *3 Thiel, Allen &
For there was brief appellants by E. and oral Robert Storck. Mayville, argument by Storck there a brief For the was and oral respondents argument by Hartman, Jr., A. George Juneau. Wingert, 1. The un- judgment appealed J. view, the trial court’s shared based upon
doubtedly not herself if Korth was causally negligent Mrs. parties, accident, she could not have contribution with respect amount she to the settle paid plaintiff respect with of the because of this It was no doubt conception his claim. the rather unusual record law, spectacle that the presents answers and change the court jury’s urging hence a of law that she negligent a matter as find evidence discloses substantial grounds While the tort-feasor. that Korth was as a causally negligent the contention law, serious as it doubt to whether presents also matter *4 to assert such her now be heard on negligence can part. she denied she that she was consistently the negli- In pleadings, trial, of the and after the settlement with the start At gent. a motion ITeimerl to by she amend opposed the plaintiff, set the cross to that the to settle- complaint up his answer Korth from her At the denying negligence. ment estopped trial, to offered evidence show that she was tending Korth to the of objected and admission evidence tend- negligent not that she was negligent. to show record does not ing were made to the what arguments jury. disclose Korth whether to question such a situation it open assert that and be heard to around after verdict turn may law, be heard on as a or should she was matter of negligent her the absolving the of verdict to appeal challenge propriety However, from in the circumstances particular wrongdoing. either it necessary upon this case we do find pass Korth’s as a matter law or of the question of negligence if the was erroneous. to have verdict it changed right think all concerned on a misconception We proceeded in Korth that was not entitled to contribution believing Heimerl unless the was in fact in law accident caused a on Korth’s It is natural by misconception, negligence part. based statements of made this court in undoubtedly different circumstances. cases,
It as an has been stated many accepted principle, that contribution rests on a common the liability. right that it has been On the basis of said on occasion proposition that both of those whose conduct con- when only persons been the accident have can the tributed to negligent one to contribution the other. think We right to a like the that as case those present, statements applied broad, are and require too qualification. where those have been in- principles cases stated
Most cases, normal situations where volved injuries ator least plaintiff’s contributors where both contribution, been had held seeking negligent. the one We case in where the of no Wisconsin right are aware con- been denied as matter has of decision squarely tribution dictum, in a fact situation like the rather than one. present case in true this perspective, To facts following place in view: accident, participated must be kept one cars. colliding driven She was sued having She had to fear ample grounds injured party. she be held liable for guilty negligence would the trial there was abundant evidence on which (at damages *5 326 could have jury In the causally negligent).
settlement, Korth paid claim in plaintiffs full and plaintiff retained no rights Heimerl. The settlement anwas arm’s-length transaction. Korth acted in complete good faith in settling. amount, settlement was reasonable in no paying more than the actual plaintiff’s damages as stipulated Heimerl. Heimerl knew about the settle- ment negotiations before the reached, agreement actually and was promptly advised of the settlement. Thus it is clear that Korth was not a mere volunteer or interloper paying claim, nor was she officious in so any way doing. whether Korth is determining entitled to contribution circumstances, from Heimerl those it is more appropriate at to look the reason underlying right contribution as tort-feasors, between than concurring to give controlling statements unqualified made in weight reference to very factual situations. different out
This court has
times
pointed
many
that contribution
is in
an
between
tort-feasors
joint
origin
equitable principle,
when one
tort-feasor
more
joint
than
arising
pays
his equi-
Thus in
Pierce,
table share of
Wait
damages.
v.
202,
475,
822,
209 N.
210 N.
Wis.
W.
W.
it was said:
“The
contribution is
of
founded
right
principles
. . .
justice.
and natural
Whether the common
equity
obli-
contract
tort,
be
or
out of
imposed by
grows
gation
the.
rise to the
right
contribution is that
thing
gives
one
the common
has
more than his fair
obligors
discharged
share of the common liability.
equitable
“The
to contribution was first
and en-
right
recognized
225,
forced in courts of
. . .”
equity,
(pp.
226.)
Farm Mut.
also State
Automobile Ins. Co. v.
See
Con
493, 496,
tinental
Co. 264 Wis.
N.
Casualty
59 W. (2d)
425;
Heimbach v.
Hagen,
83 N.
W.
Where
but
independent
concurring negligence
two
has
an indivisible
contributed to
injury
persons
plain-
*6
tiff,
the
tort-feasors are
and
liable
severally
both
jointly
or
from either
and
sue and collect
damages,
plaintiff may
both,
based on
his
The
contribution is
at
choice.
doctrine of
who
the one
the unfairness of
the whole burden
placing
upon
bill,
be
such
to
called
to
the entire
where
happens
pay
another, who
in
to
by
be shared
ought
justice
payment
for the injuries.
shared responsibility
the
is
nature
contribution
shown
The equitable
wrongful
to a tort-feasor whose
cases
contribution
refusing
wilful,
as in the case
gross
or
was intentional
conduct
372,
365,
251 N.
v.
213 Wis.
W.
Whatley,
Zurn
negligence,
Mut. Automobile Ins. Co. 272
435;
Farmers
v.
Ayala
563;
in
629, 642,
N.
or whose conduct
76 W. (2d)
Wis.
tort-feasor,
to
other
Trampe
has been
the
the
unfair
litigation
218,
210, 217,
214
252
Co.
Wis.
v. Wisconsin Telephone
can
contribution
where
one
have
Similarly,
only
N. W. 675.
the other tort-feasor of a burden
his
has relieved
payment
to
Thus
otherwise
had
bear.
which the latter might
who,
from a tort-feasor
though
has been denied
contribution
accident,
the
had a
de
cause
personal
his
helped
negligence
which would have
prevented
fense against
plaintiff
Zutter
him.
v.
judgment against
recovering
plaintiff
607,
601,
O’Connell, 200
We have heretofore extent from departed some strict rule that only subject one who is common liabili- have contribution. While Palmer Autoist ty may v. Mut. Ins. Co. Wis. N. W. it was held that a *7 tort-feasor who had joint paid plaintiffs could judgment not have contribution from the other tort-feasor joint against whom had his plaintiff lost to right recovery to by failing the notice give two-year Stats., sec. required by 330.19 (5), with result that there was common no that case liability, in overruled Ainsworth v. Berg, 911, where, N. W. 35 N. W. to the referring contribution, of basis we equitable a permitted joint tort- feasor to obtain contribution from the other tort-feasor not- that withstanding plaintiff had failed to serve the statutory notice on the latter and hence the second tort-feasor was no to subject longer any liability to plaintiff. the reasons view of which the whole doctrine of based,
contribution as between concurrent tort-feasors is we cannot fatal claim hold it to North’s for contribution from in case, Heimerl the circumstances this of particular that n not have ultimately she was to been negligent. to Korth lose did contribution right Neither by settling trial. no before She was mere volunteer; with the plaintiff in sued, serious and was of jeopardy she was judgment her. Her to was not a payment plaintiff gift or against business transaction in but which cold-blooded gratuity consideration form and full of a she release good got as entire claim Heimerl well against as herself. release should that such prejudice All parties stipulated not have contribution. It would of action for Korth’s cause Western & Casualty in the absence stipulation. done so 302, 251 N. W. 213 Wis. S. Co. v. Milwaukee G. C. Co. contribut- that one whose activity In that case we held ed, another, in- to a with the third person’s negligence with the and who made settlement juries compromise suit, for before could maintain an action injured person actor, the other notwithstanding had not been settling party by judg- compelled pay said, ment and indeed had not even been sued. We also decision, that in a dictum to the order to not necessary to establish his contribution the would have settling party own as well as that of the other contributor negligence ; reasons the accident Wis. at but for stated 308) (213 p. above, that dictum cannot be application approved facts of the instant case. of the to contribu- extension right the slight believe
We with the sound decision accords today involved our tion do not see that it can settlements. We of encouraging policy from whom contribution is demand- tort-feasor prejudice his in court on the day question be entitled ed, will for he also on the amount of the causal negligence, own his *8 of the set- the reasonableness damages person’s injured mat- has to' those Heimerl he tlement, stipulated like unless ters. Michel have not overlooked we decision our reaching 396, 614, 615, 608, 227 N. W. McKenna, 199 Wis.
v. 233, 239, N. 254 35 W. Co. Oil Shell v. Papenfus Ins. Co. v. State Farm Automobile Mutual 920, nor 6, 8, 697, N. 66 W. 268 Wis. Ins. Co. Automobile Mut. on inconsistent reasoning based were the decisions where have contribu may person a nonnegligent view with facts; own we are un- their with deal decisions Those tion. to extend their willing reasoning case different very now before us. contribution,
Since Korth seeks only wé need not consid- er whether she have been might entitled to indemnity Heimerl for the Prosser, amount she paid See Law plaintiff. 249, Torts 46; (2d ed.), sec. p. Milwaukee v. Boynton 581, 586, Cab Co. Wis. 229 N. W. N. W. 597. By reversed, Judgment with directions to en- Court.— ter for judgment for contribution. appellants I (concurring). concur the result
Broadfoot, J. herein. In reached the decision my record opinion that Mrs. Korth was as mat- requires finding negligent ter of law and that insurer is entitled to contribution. has determined case an majority issue in the briefs nor raised to us. Before argued we change has been the rule in what I accepted cases feel that we should determine the after research and question in this or some other by attorneys case. argument authorized to state that Mr. I am joins Steinle Justice this concurring opinion. Brewing Company, wife, vs. Miller Respondents, Burmek Appe llant.* 3, 1957. November 5 December * denied, costs, rehearing without on February Motion