* For disposition on motion for rehearing, see post, p. 445a. *Page 439 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 440 Action by plaintiffs Clarence Ainsworth and his employer, the Copps Company, to recover damages for personal injuries sustained by Ainsworth and property damage to the truck of the Copps Company, when it collided with the automobile of the defendant Edwin Berg. The defendant Farmers Mutual Automobile Insurance Company had issued its policy of public liability insurance upon the automobile of Edwin Berg. The Hardware Mutual Casualty Company, which carried a policy of insurance on the Copps truck, and Orville Rogers, driver of the Copps truck, were impleaded as parties defendant. Judgment was entered for the plaintiffs against the defendants Berg and his insurance carrier, dismissing so much of the cross complaint of Berg and Farmers Mutual against Orville Rogers and the Hardware Mutual as was based upon the personal injuries. Edwin Berg and Farmers Mutual Automobile Insurance Company appeal from those portions of the judgment dismissing their cross complaint against the impleaded defendants for contribution. On August 17, 1945, Clarence Ainsworth, while riding in a truck owned by the Copps Company and driven by Orville Rogers, was injured in an accident when the truck collided with a vehicle driven by the appellant Edwin Berg. At the time of the accident both Orville Rogers and Clarence Ainsworth were employees of the Copps Company, and the truck was being operated on business of the Copps Company. The Hardware Mutual Casualty Company carried workmen's compensation insurance for the Copps Company as well as collision and public liability insurance on its vehicle.
The Farmers Mutual Automobile Insurance Company is the insurer of Edwin Berg on an automobile policy.
The Hardware Mutual paid collision damage to the Copps Company on its truck, and made compensation payments to Clarence Ainsworth.
On May 1, 1947, the Hardware Mutual entered into an agreement with Clarence Ainsworth whereby it assigned its subrogation claims to him with a stipulation that he would share any benefits derived in the third-party action against Edwin Berg. On the same date it entered into a like agreement with the Copps Company, authorizing it to sue for its damages to the truck under an arrangement whereby the Hardware Mutual would be reimbursed proportionately on the collision payment made theretofore by it, and further stipulating that no settlement should be made unless first approved by the Hardware Mutual.
Action was commenced by Clarence Ainsworth and the Copps Company against Edwin Berg and the Farmers Mutual for the recovery by Clarence Ainsworth of damages for his *Page 442 personal injury and by the Copps Company for damage to its vehicle and cargo. The summons and complaint were served on Edwin Berg on August 12, 1947, and on Farmers Mutual on August 13, 1947.
On August 27, 1947, upon the application of the defendants Edwin Berg and Farmers Mutual, based upon the affidavit of one of their attorneys dated August 27th, an order to show cause why Rogers and the Hardware Mutual should not be impleaded in the action for purposes of contribution, was signed by a court commissioner and made returnable before the circuit court on September 13, 1947. No other notice had been served upon Orville Rogers or the Hardware Mutual, and no action had been commenced against them by reason of said accident prior to the service of the affidavit and order to show cause. The trial court ordered the respondents impleaded for purposes of contribution.
On September 16, 1947, plaintiffs served an amended summons and complaint upon appellants and respondents. The case was tried to a jury and both drivers were found to be guilty of negligence which contributed to cause the damages of Clarence Ainsworth and the Copps Company. On motions after verdict the trial court ordered the entry of judgment in favor of the plaintiffs against the defendants Edwin Berg and the Farmers Mutual, and dismissed the appellants' cross complaint against Orville Rogers and the Hardware Mutual for contribution.
In so doing, the trial court relied upon Palmer v. AutoistMut. Ins. Co. (1940) 234 Wis. 287, 289, 291 N.W. 364. That was an action brought by Palmer, as liquidator of the Builders Manufacturers Mutual Casualty Company, against the Autoist Mutual Insurance Company for contribution toward damages paid by the Builders Manufacturers Mutual. The payment had been made by the Builders Manufacturers Mutual on a judgment entered against it in Minnesota in an action by one Fagerborg for personal injuries sustained in a *Page 443 collision in Wisconsin between two trucks, one owned by Berend Trux, Inc., on which the Builders Manufacturers Mutual had issued its policy, the other owned by Wakershauser, on which the Autoist Mutual had issued its policy. The suit in Wisconsin was for contribution, and on a motion for summary judgment the affidavits set forth that in the Minnesota action the Autoist Mutual and its assured had not been made parties, nor had they been served with any notice by Fagerborg. The trial court held that since the two years had elapsed without notice and before the commencement of the suit for contribution, there could be no recovery. Upon appeal Palmer contended that the action being one for contribution by one joint tort-feasor against another, sec. 330.19(5), Stats., requiring the injured person to give notice to the one against whom he seeks recovery, did not apply and that the tort-feasor paying more than its just portion of the damages was entitled to recover in an action begun at any time before the running of the six-year statute of limitations. This court affirmed the trial court and said (p. 289):
"It is quite true that there is no statute that expressly prescribes a notice of injury in actions for contribution. But for liability to contribution to exist in tort actions it is necessary that the tort-feasors be subject to a common liability.Standard Accident Ins. Co. v. Runquist, 209 Wis. 97,244 N.W. 757; Buggs v. Wolff, 201 Wis. 533, 230 N.W. 621;Walker v. Kroger Grocery Baking Co. 214 Wis. 519, 252. N.W. 721. Smith, under the allegations of the complaint herein, was a joint tort-feasor with the driver of the other truck. But to render Smith liable in contribution recovery must have been had against him or action must lie against him in favor of Fagerborg, the plaintiff in the Minnesota action. But there was no recovery against Smith in the Minnesota action, and no recovery could now be had against him by Fagerborg because no notice of injury and no complaint by Fagerborg has ever been served upon him. Thus, Smith is not liable, and there can be no common liability when there *Page 444 is no liability at all. And as Smith, the insured under the extended coverage clause of the policy in suit, is not liable to Fagerborg, his insurer is not so liable, and hence is not liable to the plaintiff for contribution."
We are of the opinion that the decision in the Palmer Case is not sound and must be overruled. The rule of law has been stated to be that the right of contribution arises from the application of equitable rules, and that where one joint tort-feasor pays more than his just share he has an equitable right to proceed against the other joint tort-feasor for contribution. It is similar to the right of contribution which exists between cosureties. In Estate of Koch (1912),148 Wis. 548, 557, 134 N.W. 663, the court, quoting fromHardell v. Carroll (1895), 90 Wis. 350, 351, 63 N.W. 275, said:
"The right of contribution is an equity which springs up at the time two or more persons assume as to each other the relation of cosureties for a common principal, and ripens into a cause of action when one of the sureties pays more than his proportion of the debt for which all were liable."
The law with respect to the time when liability of joint tort-feasors is established is well stated in Western Casualty S. Co. v. Milwaukee G. C. Co. (1933) 213 Wis. 302,305, 251 N.W. 491:
"Some confusion seems to exist as to when joint tortfeasors are subject to a common liability. Logically, it would appear that the right comes into being when the combination of negligent acts gives force and direction to events necessarily resulting in an occasion for paying damages. This does not depend upon an action being begun. A lawsuit may be necessary to settle the differences arising between the parties, but it is not within the province of a court as an original matter to give this right or to take it away. It has its inception at the time the negligence of the alleged joint tort-feasors concur to bring the injuries to the third person. It *Page 445 springs up at the time and then and forever afterwards, until the claim is outlawed, they or either of them are under a liability to pay for injuries their negligent acts have caused. This inchoate right ripens into a cause of action when one of the joint tort-feasors pays more than his proportionate share of the claim for which all are liable."
With respect to the equitable right to contribution arising in automobile cases, it clearly has its origin in the joint misconduct of the negligent parties at the time of the accident. It remains an inchoate right until such time as one of the joint tort-feasors pays more than his fair share of the total damages resulting from such joint negligence, at which time it ripens into a right to legal action to recover therefor.
Sec. 330.19(5), Stats., in so far as material, provides:
"No action to recover damages for an injury to the person shall be maintained unless, within two years after the happening of the event causing such damages, notice in writing, signed by the party damaged, his agent or attorney, shall be served upon the person or corporation by whom it is claimed such damage was caused, stating the time and place where such damage occurred, a brief description of the injuries, the manner in which they were received and the grounds upon which claim is made and that satisfaction thereof is claimed of such person or corporation. Such notice shall be given in the manner required for the service of summons in courts of record. No such notice shall be deemed insufficient or invalid solely because of any inaccuracy or failure therein in stating the description of the injuries, the manner in which they were received or the grounds on which the claim is made, provided it shall appear that there was no intention on the part of the person giving the notice to mislead the other party and that such party was not in fact misled thereby; provided, that the provision herein requiring notice of two years shall not apply to any event causing damage which happened before the passage and publication of this act. When an action shall be brought and a complaint actually served within two years after the happening of the event causing such damages, the notice herein provided for need not be served." *Page 445a
As was said by the court in the Palmer Case, supra, there is no provision in the statute requiring one joint tort-feasor to serve notice upon the other. Until suit is brought by the injured person there is no opportunity. It is dear that the statute was not intended to terminate rights of one joint tort-feasor against another, but was directed only at undue delay in commencement of action by injured persons. We are satisfied that the right of one joint tort-feasor against the other to recover contribution is in nowise impaired by the statutory duty placed upon the plaintiff to serve prompt notice of his injuries. The decision in the Palmer Case must be overruled.
The appellants, having paid the judgment in full, are entitled to judgment upon their cross complaint for contribution.
By the Court. — Judgment reversed in part and cause remanded with directions to enter judgment in accordance with this opinion.
BROADFOOT, J., took no part.
The following opinion was filed February 15, 1949: