Kuchenreuther v. Chi., M., St. P. & P. R. Co.

• Decision Date: 12 October 1937
• Citation: 275 N.W. 457,225 Wis. 613
• Court: Wisconsin Supreme Court
• Parties: KUCHENREUTHER v. CHICAGO, M., ST. P. & P. R. CO.

225 Wis. 613

275 N.W. 457

KUCHENREUTHER

v.CHICAGO, M., ST. P. & P. R. CO.

Supreme Court of Wisconsin.

Oct. 12, 1937.

Appeal from a judgment of the Circuit Court for Milwaukee County; Daniel W. Sullivan, Judge.

Reversed.

Action by Joseph Kuchenreuther against the Chicago, Milwaukee, St. Paul & Pacific Railroad Company, commenced February 14, 1935. From an order overruling a plea in bar entered December 30, 1936, the defendant appeals.

Bender, Trump & McIntyre, of Milwaukee, for appellant.

Morris Podell, of Milwaukee, for respondent.

FOWLER, Justice.

The plaintiff's complaint charges gross negligence, in that the defendant injured the plaintiff by recklessly and wantonly striking with a train the automobile in which plaintiff was riding while it was crossing the track on which the train was running. The defendant pled in bar a judgment upon a directed verdict against the plaintiff rendered in a previous action brought to recover for the same injuries inflicted by the same act of the defendant wherein the plaintiff charged ordinary negligence. The facts involved under the plea in bar were stipulated. At the close of the testimony in the trial of the case for recovery on the ground of ordinary negligence, the plaintiff moved for a directed verdict. The motion was granted, and judgment of dismissal was entered thereon. The plaintiff appealed to this court, and the judgment was affirmed without opinion. The trial judge in granting the motion for a directed verdict did not state whether he granted it on the ground that negligence of the defendant was not proven, or on the ground that the plaintiff was guilty of contributory negligence. At the time of the former trial, contributory negligence of the plaintiff constituted a complete defense. In this situation the court in this action overruled the plea in bar.

[1][2][3][4][5][6] We are of opinion that the plaintiff is estopped by the record in the former case from again litigating the question of his right of recovery. The doctrine of estoppel by record prevents a party, not only from litigating again what was actually litigated in the former case, but from litigating what might have been litigated therein. It was held in Astin v. Chicago, M. & St. P. Ry. Co., 143 Wis. 477, 128 N.W. 265, 31 L.R.A. (N.S.) 158,that a plaintiff may join in the same complaint causes of action for recovery on the ground of both gross and ordinary negligence. Having the right so to join them, “pleading of the one by itself, in effect, pleads that the other does not exist.” Astin Case, supra, 143 Wis. 477, at page 485, 128 N.W. 265, 269, 31 L.R.A.(N.S.) 158. Having once pled the acts of the defendant as characterized by ordinary negligence, and not having pled in the alternative that they were characterized by recklessness as he might have done, either originally or by amendment, on the trial, if the evidence warranted an inference of recklessness, the plaintiff is estopped by the record he has made by his pleading from now claiming that the defendant's acts were characterized by recklessness or wantonness. Gross negligence comprises the commission of the same acts that are involved in ordinary negligence. The only difference is that in gross negligence those acts are characterized by recklessness, and in ordinary negligence they are characterized by a want of ordinary care. In which way, if either, those acts were characterized might have been determined in the first case had the plaintiff seen fit to have their character determined therein. A second cause of action may be brought where it is not an attempt to litigate the issues of a former action. Bischoff v. Hustisford State Bank, 195 Wis. 312, 320, 218 N.W. 353. But the converse of the proposition is also true, that one cannot bring a second cause of action when it is an attempt to try the same issues. The same acts being involved in both causes...