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

• Decision Date: 03 May 1923
• Parties: LIEBHAUSER v. MILWAUKEE ELECTRIC RY. & LIGHT CO. ET AL.
• Court: Wisconsin Supreme Court

180 Wis. 468

193 N.W. 522

LIEBHAUSER

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

Supreme Court of Wisconsin.

May 1, 1923.

Dissenting Opinion May 3, 1923.

Appeal from Circuit Court, Milwaukee County; Edward T. Fairchild, Judge.

Action by Elizabeth Liebhauser against the Milwaukee Electric Railway & Light Company and another. From an order overruling demurrer of defendant named to the cross-complaint of defendant Julius Kroscher, defendant named appeals. Reversed and remanded, with directions.

The plaintiff sues both the defendants to recover damages for personal injuries she claims to have sustained while a passenger on one of defendant Milwaukee Electric Railway & Light Company's street cars, as the result of a collision between such street car and an automobile owned and driven by the defendant Julius Kroscher. In the complaint the plaintiff alleges that each of the defendants was negligent. The Milwaukee Electric Railway & Light Company, hereinafter called the company, answered by way of a general denial. The amended answer of the defendant Julius Kroscher denies negligence on his part, and alleges that the collision was due to the negligence of his codefendant. The defendant Kroscher further answered by way of a cross-complaint against the defendant company, alleging that the company was negligent in that it operated its car at an unlawful rate of speed and in a careless, negligent, and reckless manner, in violation of the ordinances of the city of Milwaukee; alleged that the collision between his automobile and the street care was due solely to the negligence of the company; that, as a result thereof, the defendant's automobile was damaged in the sum of $150; and demanded judgment in his favor against the company for said sum. The company demurred to the cross-complaint uopn two grounds: First, that the cross-complaint does not state facts sufficient to constitute a cause of action; and, second, the cause of action is not pleadable by way of a cross-complaint in the action. The demurrer was overruled, and from the order overruling the demurrer, the defendant company appeals.

Vinje, C. J., and Eschweiler and Jones, JJ., dissenting.Van Dyke, Shaw, Muskat & Van Dyke, of Milwaukee, for appellant.

Dale C. Shockley, of Milwaukee (Edgar P. Ettenheim, of Milwaukee, of counsel), for respondent.

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

The question raised here is whether or not the matter set out in the cross-complaint is pleadable in this action. A determination of the question raised involves a consideration and construction of the provisions of section 2656a, Wis. Stats., the material portions of which are as follows:

“ Cross-complaint. Section 2656a. A defendant * * * may have affirmative relief against a codefendant * * * but in all such cases such relief must involve or in some manner affect the contract, transaction or property which is the subject-matter of the action.”

By statutory provision the question as to whether or not the matter set out in a cross-complaint is pleadable in the action may be raised by demurrer. The use of the words “transaction,” “subject of the action,” “subject-matter of the action,” and “cause of action” has given rise to considerable controversy, and has been the subject of much discussion both by courts and text-writers. See Pomeroy, Code Remedies, p. 479, and following pages. The matter has received the careful consideration of this court and we shall endeavor to interpret the language of section 2656a in accordance with the definitions and principles laid down in prior decisions.

In McArthur v. Moffet, 143 Wis. 564, 128 N. W. 445, 33 L. R. A. (N. S.) 264, the whole matter was reviewed by Chief Justice Winslow, speaking for the court, and it was there said:

“The word ‘transaction’ was intended to define one thing and the words ‘same subject of action’ another and different thing, and both were intended to define a different thing from the words ‘cause of action.’ To hold that any two of these three terms mean the same thing is to make nonsense of the whole phrase.”

The matter under consideration in McArthur v. Moffet was section 2647, which then read:

“ Uniting Causes of Action. Section 2647. The plaintiff may unite in the same complaint several causes of action, whether they be such as were formerly denominated legal or equitable, or both, where they arise out of:

1. The same transaction or transactions connected with the same subject of action; or

2. Contract express or implied; or

3. Injuries, with or without force, to person or property or either; or

4. Injuries to character; or

5. Claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same; or

6. Claims to recover personal property, with or without damages for the withholding thereof; or

7. Claims against a trustee by virtue of a contract or by operation of law.”

In that case the complaint was in two counts. The first stated a statutory cause of action under section 3186, Wis. Stats., to quiet plaintiff's title to a number of tracts of unoccupied land to which the defendants made some claim. In the second count a cause of action was stated to recover damages for trespass and cutting of timber on said lands prior to the commencement of the action. A demurrer to the complaint for improper joinder of causes of action was overruled. The defendants appealed, and upon appeal the order was affirmed. The exact question presented in that case was whether a statutory cause of action to quiet title to land and a cause of action for trespass on the same land arose out of the same transaction or transactions connected with the same subject of the action.

In Telulah Paper Co. v. Patten Paper Co., 132 Wis. 425 at page 430, 112 N. W. 522 at page 524, it was said:

“The subject of plaintiff's action is his right and the invasion of that right by the defendant.”

In McArthur v. Moffet, supra, the court said, speaking of this definition:

“If the phrase stood alone, this might be logically correct; but when we face the fact that we must differentiate subject of action from cause of action, and when we also know that the definition last quoted must be applied to cause of action, we must find some other meaning for subject of action.”

The court then held that the subject of the action must mean not only the land, but the plaintiff's right to the land, in that “both land and title must exist together if the plaintiff have any standing in court or any right to ask for affirmative action by a court of justice in his behalf.” 143 Wis. 587, 128 N. W. 453, 33 L. R. A. (N. S.) 264. It was further held:

“But if it were to be held that the words in question refer only to specific real and personal property, then they could not apply to the actions involving only rights and wrongs not connected with specific property, and as to these latter actions, comprising the great mass of ordinary litigation, there would either be no subject of action at all or the subject of action would be something of entirely different nature. * * * If some essential basic element can be found which inheres in all causes of action, local as well as transitory, real as well as personal, which, in actions involving specific property, can be joined with the specific property, both together forming the subject, and which in other actions can stand alone or in connection with the intangiblething involved like the character in slander, and form the subject, it would seem that this might be said to solve the problem. It seems to us that this basic and fundamental element is to be found in the plaintiff's main primary right, for the invasion of which the action is brought. * * * We think the principle will be found to be capable of satisfactory application to actions not involving property, but simply involving personal rights and wrongs.”

It is clear that in McArthur v. Moffet the court defined “subject of action” so as to include in cases involving tangible property the property itself, together with the party's right or title to the property. In actions involving tangible property, real or personal, the plaintiff's main primary right, which constitutes the subject of the action, is the property and the plaintiff's right or title thereto, and, upon the property being injured or the right being invaded, a cause of action springs into existence.

It may be noted here that section 2647 was amended by chapter 219 of the Laws of 1915, and that as amended it now reads, “The plaintiff may unite in the same complaint several causes of action, whether they be such as were formerly denominated legal or equitable or both,” thus removing all restrictions, depending upon the nature of the transaction or transactions, connected with the subject of the action.

Applying the principles laid down in McArthur v. Moffet, supra, to the present action, which does not involve either personal or real property, the subject of the action is the plaintiff's right to have the defendants exercise ordinary care in respect to her person, and it is for the invasion of that right that the plaintiff brings this action.

Whether or not the defendant Kroscher may set up by way of cross-complaint a cause of action and demand affirmative relief against his codefendant depends upon whether or not the relief which Kroscher asks involves the transaction which constitutes the subject-matter of plaintiff's action. In McArthur v. Moffet, 143 Wis. p. 585, 128 N. W. 452, 33 L. R. A. (N. S.) 264, it is held that the words “subject of action” and “subject-matter of the action” refer to the same thing. The subject-matter of the action, then, in this case is the plaintiff's right to have the defendants exercise the required degree of care in respect to her. Manifestly, the relief demanded by Kroscher in his cross-complaint against the company in no way involves or affects the plaintiff's main primary right. Kroscher's cause of action, if any...