Frankfort Gen. Ins. Co. v. Milwaukee Elec. Ry. & Light Co.

• Decision Date: 25 June 1919
• Citation: 173 N.W. 307,169 Wis. 533
• Court: Wisconsin Supreme Court
• Parties: FRANKFORT GENERAL INS. CO. v. MILWAUKEE ELECTRIC RY. & LIGHT CO.

169 Wis. 533

173 N.W. 307

FRANKFORT GENERAL INS. CO.

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.

Supreme Court of Wisconsin.

June 25, 1919.

Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.

Action by the Frankfort General Insurance Company against the Milwaukee Electric Railway & Light Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Action for contribution. One Ertel recovered judgment for $4,000 and costs against the Milwaukee-Western Fuel Company and the defendant in a personal injury action. In that action it was determined that the Milwaukee-Western Fuel Company and the defendant were guilty of coincident independent acts of negligence resulting in injury to said Ertel, and Ertel had judgment against both companies. The judgment was paid by the plaintiff, the insurer of the Milwaukee-Western Fuel Company, and plaintiff commenced this action for contribution. Plaintiff had judgment in the trial court, from which judgment the defendant appeals.Van Dyke, Shaw, Muskat & Van Dyke, of Milwaukee, for appellant.

Doe, Ballhorn & Doe, of Milwaukee (Frank M. Hoyt, of Milwaukee, of counsel), for respondent.

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

The defendant claims that it is not liable, and bases its claim upon three propositions:

(1) The defendant asserts that it acquired an equitable defense, limiting the amount which it might be required to contribute; that such equitable defense arose out of the fact that the Milwaukee-Western Fuel Company refused before the trial of the Ertel action to join with the defendant in the settlement of Ertel's claim for the sum of $2,400, the defendant having secured Ertel's offer to accept that sum, and at the same time agreed to contribute four-sevenths of the amount of the settlement if the Milwaukee-Western Fuel Company would contribute the remaining three-sevenths.

(2) Plaintiff failed to prove the facts requisite to a recovery in the court below.

(3) Plaintiff as an insurer has no right to maintain the action.

[1] In determining whether or not the defendant may limit its liability in the manner set forth in its first grounds of defense, recourse must be had to fundamental principles. We cannot state the principles underlying the right to contribution better than they are stated in 13 Corp. Jur. 821:

“The doctrine of contribution rests on the principle that, when the parties stand in æquali jure, the law requires equality, which is equity, and one of them shall not be obliged to bear a common burden in ease of the other. It is founded on principles of equity and natural justice, and does not arise from contract. In other words, the doctrine of contribution is not founded on contract, but comes from the application of principles of equity to the condition in which the parties are found in consequence of some of them, as between themselves, having done more than their share in performing a common obligation.”

See Boutin v. Etsell, 110 Wis. 276, 278, 85 N. W. 964.

The right of contribution in this case does not arise out of the accident to Ertel. It does not arise until a joint tort-feasor has done more than his share in performing a common obligation. The defendant had not paid or discharged any part of the liability which grew out of the accident; therefore it had no right of contribution as to any one. It is clear, therefore, that the right of contribution which does not come into existence until one of...