Wait v. Pierce

On motion for rehearing.

Rosenberry, J.

The attention of the court is called to the fact that the opinion did not dispose of the second contention made by the responden^ in support of the order appealed from, which is that even' if it be held as it now is held that a wife may maintain an action against her husband for a tort, nevertheless the copartners cannot, by way of cross-complaint, maintain an action against G. E. Wait, the husband of the plaintiff, for contribution because such right does not come into existence until one of two obligors has discharged more than his equitable share of the common obligation, and for that reason there is no cause of action against the defendant Wait in favor of the partners.

The origin of the right of contribution and the history of its growth and development is set forth at length in Estate of Koch, 148 Wis. 548 , 134 N. W. 663 . What is said there relates to the right of contribution as between common obligors under a contract. At the time Estate of Koch was decided (1912), the right of contribution as between joint tortfeasors was not recognized in this state. It was given recognition in Ellis v. C. & N. W. R. Co. (1918), 167 Wis. 392 , 167 N. W. 1048 . See, also, “Contribution Between Joint Tortfeasors,” 1 Marquette Law Review, 141; “Contribution Between Persons,” 12 Harvard Law Review, 176.

The right of contribution is founded upon principles of equity and natural justice and does not spring from con *226 tract. Whether the common obligation be imposed by contract or grows out of a tort, the thing that gives rise to' the right of contribution is that one of the common obligors , has discharged more than his fair equitable share of the) common liability.

The right to contribution was first recognized and enforced in courts of equity, and for a long time the right could not be enforced in a court of law. Adams v. Hayes, 120 N. C. 383 , 27 S. E. 47 ; Couch v. Terry’s Adm’rs, 12 Ala. 225 ; Chipman v. Morrill, 20 Cal. 130 ; Boutin v. Etsell, 110 Wis. 276 , 85 N. W. 964 .

In North Carolina common-law courts declined jurisdic.tion in cases of contribution until it was conferred upon them by statute. Sherrod v. Woodard, 15 N. C. 360 . The right to contribution being the same in contracts and in tort as limited in the case of Ellis v. C. & N. W. R. Co., the right to bring in parties, where the right of contribution is claimed, is in its nature the same whether the action be brought upon contract or sounds in tort. Where the tortl action is one in which the right of contribution may exist, j the court, in the exercise of its discretion as to whether or: not parties should be brought in, may be moved by different^ considerations than would move it in contract cases; but the! right is in its nature the same.

The contention made by respondent in this case that one joint tortfeasor has no right of action against another joint, tortfeasor until he has discharged more than his equitable share of the common obligation is sound. It is equally well settled that a cross-complaint must state a cause of action (First Nat. Bank v. Frank, 131 Wis. 416 , 111 N. W. 526 ), and is subject to demurrer if it does not, This, however, does not completely dispose of the right of the copartners to set up the matters contained in their cross-complaint, in which they allege that their codefendant, G. E. Waitj was guilty of negligence which directly and proximately contributed to the plaintiff’s injury, and pray that “in the event *227 that'they, the said George P. Pierce, and Andrew Borens and the said G. E. Wait, are jointly found guilty of actionable negligence, then the defendants George P. Pierce and Andrew Borens have judgment against the said G, E. Wait for one half of the amount awarded to plaintiff and paid by defendants George P. Pierce and -Andrew Borens.” The right of the copartners to set these matters up by way of a cross-complaint is derived from sec. 263.15, formerly sec. 2656a, and sec. 260.19, formerly sec. 2610. These sections were an innovation upon the rules of the common law relating to pleadings. Speaking of- these sections, in Hemenway v. Beecher, 139 Wis. 399 , 121 N. W. 150 , the court said:

“Sec. 2610, Stats. 1898, relating to the interpleading of additional parties, and sec. 2656a of the same statutes, relating to cross-complaints and proceedings where controversies arise between defendants, are very broad in their terms and were intended to give courts plenary powers not only to call in new parties, but to mold the pleadings apd dispose of all branches of a controversy in one action after having obtained jurisdiction of the necessary parties. The idea in both sections is to enable the court to grasp all the issues germane to the main controversy, whether arising between the plaintiff and the defendant, or between defendants, or between a defendant and an outside party, and dispose of them in one and the same action, and thus avoid circuity of action and multiplicity of suits. This purpose should be encouraged rather than discouraged by the courts. It is in line with the idea that courts are formed to decide controversies without unnecessary delay and without undue refinement as to pleading or procedure.so long as the parties are before the court and the issues understood.”

The interpleader statute appears as sec. 22 of ch. 122 of the Statutes of 1858. By ch. 219 of the Laws of 1915 the following provision was added:

“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 *228 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 legislature of 1913 requested tire supreme court to suggest such changes “in the Code practice of the state as will simplify it, relieve it of technicalities and promote the ends of justice, and to report their suggestions to the legislature which convenes in 1915.” Jt. Res. No. 30, .1913. The suggestions made by the court pursuant to this request are embodied in ch. 219 of the Laws of 1915.

Whether or not a third person not a defendant should be made a party under the provisions of the section as amended; rests within the sound discretion of the court. Ertel v. Milwaukee E. R. & L. Co. 164 Wis. 380 , 160 N. W. 263 . In that case the trial court denied the application and its determination was approved by' this court. There was a similar holding with respect to the provisions of sec. 263.15 in Schmuhl v. Milwaukee E. R. & L. Co. 156 Wis. 585 , 146 N. W. 787 . In this connection the case of Bakula v. Schwab, 167 Wis. 546 , 168 N. W. 378 , deserves attention. In that case plaintiff brought suit against Schwab on account of personal injuries sustained in a collision. Upon motion of Schwab, Wilkinson was made a party defendant and the action proceeded to trial in that court against both defendants. No cross-complaint was served by either defendant and there was no issue joined between them. At the close of the evidence the court directed a verdict in favor *229 of the defendant Wilkinson, the jury found in favor of the plaintiff, and judgment was rendered against Schwab, from which he appealed, claiming the right to have a review of the question of whether or not a verdict was properly directed as to Wilkinson. It was held that the judgment disposed of all of the issues in the action and therefore to be one in substance in favor of Wilkinson. The question considered upon the appeal, the court being of the opinion that there was sufficient evidence in the case to take the question of Wilkinson’s liability to the jury, was whether Schwab had the right to have the judgment in favor of Wilkinson reversed, and it was held that Schwab did not have such right because as between Schwab and Wilkinson the judgment in favor of Wilkinson was not res adjudicata. Language is used in the opinion father broader than the issues in the case warrant. It is said: “We have been cited to no case in which it has been held that a judgment rendered in an action against separate tortfeasors is res adjudicata even upon the question of the liability of the defendants to.the plaintiff in a subsequent action between the tortfeasors,” and it was held that the rule applying in contract cases as to the liability of codefendants did not apply in tort actions.. As we have seen, the right of one joint tortfeasor to contribution from another joint tortfeasor arises out of a common liability. It is only when they have been subjected to a common liability and one joint tortfeasor has paid more than his equitable share of the common obligation that the right of contribution arises.. To-hold that under such circumstances a judgment which establishes' the common liability is not res adjudicata upon that question is to ignore the principle upon which the right to contribution rests. In the Bakula Case, supra, there was no cross-complaint and no issue was made between the codefendants. It was therefore held that the defendant Schwab was not concluded by the *230 judgment in Wilkinson’s favor. So far as the Bakula Case holds that where one joint tortfeasor discharges more than his equitable share of a liability resting upon him and another joint tortfeasor by a single judgment, the question of liability of the other joint tortfeasor to the plaintiff is not res adjudicata, it must be and is modified.

In this case one joint tortfeasor (the liability of the partners being a single liability as the result of the negligent act of their servant) seeks to. have determined his liability against another joint tortfeasor arising out of the very subject matter of the plaintiff’s action. If the plaintiff’s injuries are due solely to the negligence of the defendant G. E. Wait, then the copartners are not liable at all. If the plaintiff’s injuries are due solely to the negligence, of the copart-ners, Wait is not liable at all; but if the plaintiff’s injuries are due to the negligent' acts of both of a kind which are within the rule laid down in the Ellis Case there tnay be contribution, and when one-discharges more than his equitable share of the liability the right of contribution will come into existence. The copartners seek to have all of these questions determined in this action. Plaving regard for the spirit as well as the letter of the statute, this case presents a situation which was well within the contemplation of the amendment of 1915. The amendment to the inter-pleader statute clearly authorizes the settlement of issues between parties which are contingent upon the future action of the parties, as for instance where one defendant, if he be compelled to pay, will have a claim over against a third party; in such a case the third party may be brought in and subjected to liability. While it is true that one joint tort-j feasor will not have a right of action over against his co-¡ tortfeasor for the amount of the recovery, but only for one'j half of the amount in the event that there are two, he is| certainly well within the statute because the whole must in- | elude an amount less than the whole. The statute would *231 have been clearer in that respect had it said for the amount of the recovery or some part thereof.

The decision in the Hemenway v. Beecher Case, supra, was written by Mr. Chief Justice Winslow, who took an active part in preparing ch. 219, and he must have had clearly in mind the objects and purposes of the amendment.

In the case of Liebhauser v. Milwaukee E. R. & L. Co. 180 Wis. 468 , 193 N. W. 522 , cited as sustaining respondent’s position, Kroscher sought to litigate in that action his independent claim against the electric railway company, one which in no manner affected the subject matter of the plaintiff’s action. The events which gave rise to plaintiff’s cause af action and to Kroscher’s cause of action were contemporaneous but had not the slightest legal relation one to the other. Whether the railway company was liable to Kroscher for damages which he sustained had' not the remotest bearing upon the plaintiff’s cause of action or the rights of the defendants as between themselves on.account of liabilities which might be found to exist in favor of the plaintiff against both defendants. It was held that Kroscher could not, by way of cross-complaint, litigate his independent claim against the electric company in plaintiff’s action.

Fisher v. Milwaukee E. R. & L. Co. 173 Wis. 57 , 180 N. W. 269 , in effect rules this case. In that case the defendant company sought to make Rumph, the physician who attended the plaintiff, a party, claiming that the injuries were in whole or in part due to the negligent treatment by the defendant Rumph, and it was held that the cross-complaint stated a cause of action in favor of the light company against Rumph under the provisions of sec. 2610. and that Rumph was properly brought in.

In this case the copartners and Wait may be held to be, under the allegations of the. cross-complaint, joint tort-feasors. The partners asked to have Wait made a party in order that “the entire controversy may be settled in one *232 action,” and the court quite properly, in the exercise of its discretion, held that Wait should be made such party. While it is true the partners have no complete cause of action against Wait until they have been legally compelled to satisfy more than their equitable share of a common liability, no greater difficulty exists in providing for the ultimate settlement by a contingent judgment of all controversies arising out of the'action than exists in a like case where the defendant, if held liable to the plaintiff and compelled to discharge his liability, will have a claim over against a third party, and that third party is brought in and subjected to liability in the same action. If it be held that the partners and the defendant Wait are joint tortfeasors, and if each of the joint tortfeasors pays his equitable share of the judgment, no further action will be necessary. On the other hand, if one of the joint tortfeasors is compelled to pay more than his equitable share, no reason exists why his rights against the other tortfeasor should not be settled in this action contingent upon such payment.

' Our conclusion upon this branch of the case results in no modification of the original mandate. No costs will be allowed, except the moving party shall pay the clerk’s fees.