Bosin v. Minneapolis, St. Paul & Sault Ste. Marie R. Co.

• Decision Date: 25 May 1960
• Docket Number: No. 59-C-155.,59-C-155.
• Parties: Robert BOSIN, a minor, and Sandra Bosin Hafenbraedl, a minor, by Harold Bosin, their guardian, Violet Bosin and Harold Bosin, Plaintiffs v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILROAD COMPANY, Defendant and Third-Party Plaintiff, and CITY OF FOND DU LAC, Third-Party Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

183 F. Supp. 820

Robert BOSIN, a minor, and Sandra Bosin Hafenbraedl, a minor, by Harold Bosin, their guardian, Violet Bosin and Harold Bosin, Plaintiffs v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILROAD COMPANY, Defendant and Third-Party Plaintiff, and CITY OF FOND DU LAC, Third-Party Defendant.

No. 59-C-155.

United States District Court E. D. Wisconsin.

May 25, 1960.

COPYRIGHT MATERIAL OMITTED

K. M. McLeod, Joseph D. Donohue and Raymond R. Colwin, Fond du Lac, Wis., for plaintiffs.

Richard S. Gibbs, Milwaukee, Wis., for plaintiffs.

Reginald W. Nelson, Milwaukee, Wis., Edward M. Glennon, Minneapolis, Minn., of counsel, for defendant and third-party plaintiff.

Frederick K. Foster, Fond du Lac, Wis., for third-party defendant.

GRUBB, District Judge.

This is a motion by the City of Fond du Lac (hereinafter called the "City") to dismiss a third-party complaint for contribution brought against it by the Minneapolis, St. Paul & Sault Ste. Marie Railroad Company (hereinafter called the "Railroad") in an action arising out of a railroad crossing accident.

The Railroad asserts that the view of the crossing signal and of the locomotive involved was obstructed by the low branches of a tree located on land within the jurisdiction of the City and within 330 feet of the crossing. The Railroad has based its third-party complaint on the City's alleged failure to adequately trim said tree in violation of Section 195.29(6), Wis.Stats., as constituting negligence and the creation and maintenance of a nuisance proximately causal of plaintiffs' injuries.

The City has moved to dismiss the third-party complaint, or in the alternative for summary judgment, on the grounds that no claim has been filed against the City as required by Section 62.25(1) (a), Wis.Stats.,¹ as a condition precedent to bringing an action; that the duty to trim trees imposed by Section 195.29(6)² is a governmental function; and that absent a specific statutory provision imposing liability, the City enjoys immunity; and further, that the violation of the tree trimming statute does not constitute a nuisance and that there is no liability based on nuisance on the part of the governor to the governed.

The issues on this motion present a number of novel questions. Does non-compliance with the claim filing requirements of Section 62.25(1) (a) bar or render premature a claim for contribution brought under third-party proceedings in a pending action under Rule 14 (a) of the Federal Rules of Civil Procedure, 28 U.S.C.A.? May civil liability be imposed on the basis of a violation of the duty imposed by Section 195.25(6)? Does the doctrine of governmental immunity from tort liability bar a claim by plaintiffs against the City and thus defeat the Railroad's right of contribution arising out of common liability of joint tort-feasors? May a tree, which by reason of its location and untrimmed condition obstructs the view upon an intersecting highway, constitute a nuisance actionable as against the City which was under a statutory duty with respect to trimming said tree?

Section 62.25(1) (a) applies to a "claim of any kind." The purpose of such a statute is to enable the city council to evaluate the claim and act upon it. See Smith v. City of Eau Claire, 1892, 83 Wis. 455, 53 N.W. 744, and Worthington Pump & Machinery Corp. v. City of Cudahy, 1923, 182 Wis. 8, 195 N.W. 717. Compliance with the statute has been held a condition precedent to commencing an action against a city. Seifert v. School District No. 1 of the City of Cudahy, 1940, 235 Wis. 489, 292 N.W. 286.

Under Wisconsin law there is a substantive right to contribution "founded upon principles of equity and natural justice." Wait v. Pierce, 1926, 191 Wis. 202, 225, 209 N.W. 475, 210 N.W. 822, 48 A.L.R. 276. This right comes into being at the time concurring negligent acts create a cause of action in favor of an injured person. A joint tort-feasor's right to contribution remains inchoate, unascertainable, and contingent until he pays more than his proportionate share of the common liability. Upon such payment the right becomes vested, certain, and ripens into a cause of action. Western Casualty & Surety Co. v. Milwaukee General Construction Co., 1933, 213 Wis. 302, 251 N.W. 491.

Section 260.19(3), Wis.Stats., which is similar to Rule 14(a) of the Federal Rules whereunder the third-party proceedings here were commenced, provides a procedure whereby primary and incidental rights arising out of the same occurrence may be litigated in one action although the incidental right may not have ripened into a cause of action at the commencement of the suit.

In view of the purpose of Section 62.25, Wis.Stats., the nature of a claim based on an inchoate right to contribution, and Wisconsin law governing procedure in civil actions, it is the opinion of this court that compliance with the filing requirements of Section 62.25 is not a condition precedent to the interpleader of an alleged joint tort-feasor. No useful purpose could be served by presentment of a claim based on an inchoate, unascertainable, and contingent right for consideration by a city council, particularly where, as here, the injured persons assert no claim against the City and, in fact, oppose its interpleader. The presence of the City as a third-party defendant is necessary in order to get a complete adjudication of the rights of the parties and to avoid two trials. This is the spirit and purpose of Rule 14(a), Federal Rules of Civil Procedure, and of Section 260.19(3), Wis.Stats. In that manner it can be determined whether there is common liability, and if so, the finding as to damages will be binding upon the third-party defendant.

In Ainsworth v. Berg, 1948, 253 Wis. 438, 34 N.W.2d 790, 35 N.W.2d 911, the court held that a claim for contribution was not barred by plaintiff's failure to file timely notice of injury against the interpleaded joint tort-feasor under Section 330.19(5), Wis.Stats.1947. The court there noted that plaintiff's failure to comply with that statutory requirement did not affect the right of contribution between joint tort-feasors. It held there was no requirement of giving notice in respect to a claim for contribution. Its decision discarded what had previously been considered a condition precedent to a determination of liability necessary to giving rise to a cause of action for contribution and recognized the special nature of the right to contribution and of the desirability of the orderly and expeditious adjudication of claims which may be based thereon.

It may also be noted that, notwithstanding the all-inclusive language of Section 62.25, Wis.Stats., as applying to a "claim of any kind," the courts have excepted from its application actions "for equitable relief (as for abatement of a nuisance by injunction)." Hasslinger v. Village of Hartland, 1940, 234 Wis. 201, 205, 290 N.W. 647, 649.

Section 195.29, Wis.Stats., is a safety statute. It imposes certain duties and provides for a forfeiture for violation of its requirements by "any person." There appears to be no uniformly applicable rule of policy under Wisconsin law with respect to the question whether or not violations of safety statutes give rise to civil liability. Instead the court looks to the presumed legislative intent in each instance. Griswold v. Camp, 1912, 149 Wis. 399, 135 N.W. 754. In respect to a violation of a statute governing employment of a minor, it was held that "where a statute imposes a duty upon a class of persons to guard the personal safety of others, a failure to perform such duty constitutes actionable negligence." Sharon v. Winnebago Furniture Mfg. Co., 1910, 141 Wis. 185, 188, 124 N.W. 299, 300. Breaches of the highway defect regulations are actionable against governmental units charged with their observance by virtue of an express statutory provision imposing conditions and limitations upon the right of recovery. See Section 81.15, Wis.Stats. Violations of the Safe Place Statute are actionable as against named parties, including governmental units, charged with duties under the statute without express statutory authorization and without special conditions and limitations by judicial construction as to the legislature's intent in its enactment. See Section 101.06, Wis.Stats. and Besnys v. Herman Zohrlaut Leather Co., 1914, 157 Wis. 203, 147 N.W. 37. Violations of the snow removal statute are not actionable, but an artificial accumulation of snow and ice may give rise to liability under certain...