Frederickson v. Schaumburger

• Decision Date: 09 November 1932
• Citation: 210 Wis. 127,245 N.W. 206
• Parties: FREDERICKSON v. SCHAUMBURGER ET AL.
• Court: Wisconsin Supreme Court

210 Wis. 127

245 N.W. 206

FREDERICKSON

v.SCHAUMBURGER ET AL.^a1

Supreme Court of Wisconsin.

Nov. 9, 1932.

Appeal from two orders of the Circuit Court for Marathon County; A. H. Reid, Circuit Judge.

Action by M. R. Frederickson against Frederick Schaumburger and another, who impleaded Harold L. Geisse, who filed a cross-complaint against defendants and a motion to enjoin defendants from prosecuting an action brought against him. From an order overruling a demurrer to the cross-complaint and an order granting the motion, defendants appeal.--[By Editorial Staff.]

Order overruling demurrer to cross-complaint affirmed. Order granting motion reversed, and cause remanded.

The action was brought on August 27, 1931, by the plaintiff to recover damages for personal injuries sustained by him in an automobile collision. The action was originally brought against the defendants Schaumburger and Loomans, who thereupon impleaded Harold Geisse for the purpose of obtaining a judgment for contribution in case it should be found that the negligence of both Harold L. Geisse and the defendants caused or contributed to plaintiff's injuries. The order making Geisse a party gave him the option to join as plaintiff.

Prior to the commencement of this action, Paula Zastrow, widow of the driver of the car of which Geisse and Frederickson were occupants, had commenced an action against Schaumburger and Loomans. Geisse was impleaded as defendant upon the claim that he was the driver of the car in which Zastrow was riding, and both Geisse and Schaumburger and Loomans filed cross-complaints asking for contribution in the event of a judgment finding all guilty of negligence. The jury in that case found Zastrow to have been the driver, and exonerated him from all negligence. It found the defendants Schaumburger and Loomans guilty of negligence. Judgment was entered upon this verdict in favor of the plaintiff and against Schaumburger and Loomans. Judgment was also entered dismissing the cross-complaint of Schaumburger and Loomans against Geisse. On appeal to this court, judgment was affirmed. Zastrow v. Schaumburger and Loomans, 245 N. W. 202, decided herewith. Subsequent to the commencement of this action, the defendants Schaumburger and Loomans, as plaintiffs, brought action against Geisse and the Wisconsin Valley Electric Company as defendants in the circuit court for Portage county, to recover damages sustained in the collision. After the commencement of the action in Portage county, Geisse served upon the defendants in this case a cross-complaint by which he seeks to recover damages from the defendants for the personal injuries suffered by him as a result of the accident. The defendants demurred to the cross-complaintupon the ground that it fails to state facts sufficient to constitute a cause of action, and that the cause of action, if any, was not pleadable as a cross-complaint. The impleaded defendant, Geisse, moved the court to enjoin the defendants from prosecuting the action brought against him and the Wisconsin Valley Electric Company in Portage county. The trial court granted this motion to the extent of enjoining the defendants from prosecuting their action against Geisse. The defendants Schaumburger and Loomans appeal from both orders.

Fisher, Cashin & Reinholdt, of Stevens Point, for appellants.

Genrich & Genrich, of Wausau (L. A. Pradt, Jr., of Wausau, of counsel), for respondents.

WICKHEM, J.

The accident involved in this case is the same as that involved in Zastrow v. Schaumburger et al. (Wis.) 245 N. W. 202, and it will not be necessary further to detail its incidents. The first order to which this appeal directs attention is the order overruling the demurrer to the cross-complaint. It is contended by the appellants that the case clearly falls within the doctrine of Liebhauser v. Milwaukee E. Ry. & L. Co., 180 Wis. 468, 193 N. W. 522, 524, 43 A. L. R. 870, and that the reason why the trial court overruled the demurrer was that he regarded the Liebhauser Case to be unsound.

In the Liebhauser Case, plaintiff sued the railway company and one Kroscher for damages for personal injuries sustained while she was a passenger on the railway company's street car, as the result of a collision between the street car and the automobile owned and driven by the defendant Kroscher. Plaintiff charged negligence against each defendant. Each defendant denied negligence, and the defendant Kroscher alleged that the collision was due solely to the negligence of the railway company. Kroscher further answered by way of cross-complaint, alleging that the railway company was negligent, that the negligence caused injury to his automobile, and demanding judgment against the railway company in that sum. This court held that the demurrer to the cross-complaint should have been sustained upon the ground that it was not pleadable in the action. The statute involved is section 263.15, Stats., which provides: “A defendant * * * may have affirmative relief against a codefendant * * * but in all such cases such relief must involve...