Fisher v. Milwaukee Electric Railway & Light Co.

Rosenberry, J.

The order appealed from appears to be inconsistent upon its face. If the cross-complaint be dismissed 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 may 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 arises 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 defendant 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. Defiance 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 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.”

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 thereon, 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 to 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 present 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.

•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 case 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 county cannot be had by moving to dismiss the cross-complaint 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 a 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.