Fisher v. Milwaukee Elec. Ry. & Light Co.

• Decision Date: 20 December 1920
• Citation: 180 N.W. 269,173 Wis. 57
• Parties: FISHER v. MILWAUKEE ELECTRIC RY. & LIGHT CO. ET AL.
• Court: Wisconsin Supreme Court

173 Wis. 57

180 N.W. 269

FISHER

v.MILWAUKEE ELECTRIC RY. & LIGHT CO. ET AL.

Supreme Court of Wisconsin.

Dec. 14, 1920.

Concurring Opinion Dec. 20, 1920.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by Barbara Fisher against the Milwaukee Electric Railway & Light Company, in which Dr. Charles Rumph was made a party defendant for the purpose of responding to defendant's cross-complaint. From an order dismissing the cross-complaint and dismissing Rumph as a party, the original defendant appeals. Reversed, with directions.

Personal injury. Demurrer to cross-complaint. The plaintiff claimed to have been injured on the 23d day of September, 1917, by being thrown from one of the Milwaukee Electric Railway & Light Company--hereafter called light company--cars, through the negligent act of the light company. It is the contention of the light company that the damages sustained by the plaintiff were due in part to the negligent treatment of plaintiff's injuries by the defendant Rumph. After the commencement of the action, the light company, upon a verified cross-complaint and affidavit, procured an order of the circuit court of Milwaukee county, requiring Rumph to show cause why he should not be made a party defendant. In its answer the light company denied that it was negligent, or that the injuries that the plaintiff sustained were received as the result of the defendant's negligence. In its cross-complaint it alleges:

“That the injury sustained by the plaintiff was a Colle's fracture of the left wrist, which is easily remediable by ordinary surgical treatment. That, although the defendant offered services of competent physicians, the plaintiff rejected the same, and secured the services of a physician and surgeon, one Dr. Charles L. Rumph, whose residence is 1213 Milwaukee avenue, South Milwaukee, Wis.; that said Dr. Rumph was at said time, and is, a duly licensed and practicing physician and surgeon; that said Dr. Rumph so negligently and carelessly treated the plaintiff's said injury that he caused a partial loss of the use of plaintiff's left hand and forearm, and produced, by failing to use ordinary surgical skill and by improper bandaging of said fracture, an ischæmic paralysis of plaintiff's hand and forearm; that had said Dr. Rumph used ordinary surgical skill said Colle's fracture would have been completely cured within a short time, and no disability whatever would have resulted therefrom.”

The light company then asks that, if recovery be had against it for the injuries due to the alleged improper treatment of Rumph, it be permitted to recover from Rumph such damages as were in excess of those which would have followed the plaintiff's injury had she been treated with ordinary surgical skill. The plaintiff's attorney filed an affidavit in which he stated he made no objection to Rumph being made a party, and reasserted the plaintiff's right to recover the entire damages from the defendant company. Upon the hearing, by order dated September 28, 1918, Rumph was made a party defendant “for the purpose of responding to the cross-complaint of the defendant.” The plaintiff was directed, at the expense of the light company, to deliver to the defendant an amended summons, which amended summons was to be served by the light company, with the proposed cross-complaint, upon Charles L. Rumph. Notice of entry of order was served October 2, 1918. No appeal was taken by any party from this order. On the 18th day of October, 1918, the defendant Rumph demurred to the cross-complaint “upon the ground that it does not state facts sufficient to constitute a cause of action.” On the 21st day of April, 1920, the circuit court made an order: First, sustaining the demurrer to the cross-complaint; second, ordering that the cross-complaint be dismissed, and that Rumph be dismissed as a party defendant to the action; and, third, that the light company have 20 days from date in which to file an amended pleading, upon the payment of $10 to the said defendant Rumph. From this order the light company appeals.Van Dyke, Shaw, Muskat & Van Dyke, of Milwaukee, for appellant.

W. J. Riley, of South Milwaukee, for plaintiff.

Lines, Spooner & Quarles, of Milwaukee, for respondent Rumph.

ROSENBERRY, J. (after stating the facts as above).

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.

[1] 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 sections 2610 and 2656a, Wis. 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. City of Janesville, 100 Wis. 157, 75 N. W. 975, 41 L. R. A. 563, 69 Am. St. Rep. 906.

[2][3] It is contended on behalf of the defendant Rumph that the principles applicable to suits against joint tort-feasors 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 tort-feasors. 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.

[4][5] 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 Machine Works v. Gill, 170 Wis. 477, 175 N. W. 940. This brings us to a consideration of section 2610, Wis. 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...