Matson v. Dane Cnty.

• Decision Date: 16 November 1920
• Citation: 179 N.W. 774,172 Wis. 522
• Parties: MATSON ET UX. v. DANE COUNTY.
• Court: Wisconsin Supreme Court

172 Wis. 522

179 N.W. 774

MATSON ET UX.

v.DANE COUNTY.

Supreme Court of Wisconsin.

Nov. 16, 1920.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by Christ Matson and wife against Dane County. From an order overruling a demurrer to 6 of the 10 causes of action, defendant appeals, and plaintiffs give notice for review of that part of the order sustaining the demurrer to the other 4 causes of action. Reversed and remanded, with direction to enter an order overruling the demurrer to the first cause of action, and sustaining it to the other alleged causes of action.

This action was brought by plaintiffs to recover for the death of their two children. The children were drowned in a water hole on the premises of Mary Connor, adjoining a state trunk highway in the town of Windsor, in Dane county. Plaintiffs claim 10 separate causes of action, namely: (1) Private nuisance; (2) unlawful obstruction and diversion of the flow of water; (3) unlawful removal of lateral support; (4) failure to repair after notice of defect and the result thereof; (5) negligence. The second 5 causes of action are the same as the first 5, respectively, except that it is not alleged that the water hole was in a watercourse.

Appellants entered a general demurrer to each of the 10 causes of action, and the court overruled the demurrer as to the first, second, third, sixth, seventh, and eighth causes of action, and sustained the demurrer to the fourth, fifth, ninth, and tenth causes of action. The defendant appeals from the order of the court overruling the above-mentioned causes of action. The plaintiffs have given notice under section 3049a, Stats., for a review of that part of the order sustaining the demurrer to 4 of the 10 causes of action.Roman Heilman, Dist. Atty., of Madison, for appellant.

Crownhart & Wylie, of Madison, for respondents.

SIEBECKER, C. J. (after stating the facts as above).

[1] A preliminary question of pleading arises upon the allegations of the complaint. The pleader has set out the facts constituting the subject of controversy upon which relief is demanded. If the pleader had not attempted to repeat these facts after treating them as the first cause of action, in an attempt to allege 9 additional causes of action, the subject would not have challenged our attention. The circuit court deals with the 10 separate demurrers interposed to the 10 alleged causes of action, sustaining the demurrers to the fourth, fifth, ninth, and tenth alleged causes, and overruling the remainder. The record does not indicate that the question whether the facts alleged constitute different causes of action was brought to the attention of the court for consideration. It seems to us that the complaint as framed should not receive the approval of tacit assent by passing it without taking note of the subject. Section 2646, Stats., provides that:

“The complaint shall contain: * * * (2) A plain and concise statement of the facts constituting each cause of action, without unnecessary repetition. (3) A demand of the judgment to which plaintiff supposes himself entitled.”

There is but one object sought in bringing this action, namely, to enforce the primary right of the plaintiffs for the injury proximately caused by the default of the defendant's officers and servants in performing a duty imposed on them by law. A mere repetition of a statement of facts in a complaint, upon a theory that it constitutes a basis of relief for breach of the primary right alleged as the ground of action, does not in any sense of the Code constitute an independent cause of action. There is but one subject of action set out in the complaint as above indicated, and all the so-called separate causes of action are parts of that subject, involving the breach of a primary right and the injury it caused plaintiffs. Emerson v. Nash, 124 Wis. 369, 102 N. W. 921, 70 L. R. A. 326, 109 Am. St. Rep. 944. As declared in Zinc Carbonated Co. v. First National Bank, 103 Wis. 125, 79 N. W. 229, 74 Am. St. Rep. 845:

“The test of whether there is more than one cause of action stated or attempted to be stated in a complaint is, not whether there are different kinds of relief or objects sought, but whether there is more than one primary right sought to be enforced or one subject of controversy presented.”

An examination of the entire complaint discloses that facts are stated as independent grounds for relief, yet when considered in view of the object of the action they set forth but one primary purpose, to which they all relate, and for which relief is sought, namely, to redress the plaintiffs' injury, proximately caused them by the breach of this right.

“There may be many minor subjects, and facts may be stated constituting independent grounds for relief, * * * and there be still but a single primary purpose of the suit, with which all the other matters are so connected as to be reasonably considered germane thereto, parts of one entire subject, presenting to the court but one primary ground for invoking its jurisdiction. That was the rule before the Code, and it was preserved thereby in unmistakable language, as this court has said on many occasions.” Herman v. Felthousen, 114 Wis. 423, 90 N. W. 432, citing Bassett v. Warner, 23 Wis. 673, and other cases, op. 114 Wis. 426, 90 N. W. 432.

[2] Applying this rule to the complaint in this case, it is manifest that the pleader wholly misconceived the purport and facts alleged in the complaint, in construing them as constituting 10 different causes of action. In their scope, purpose, and object the facts stated constitute but one cause of action within the provisions of the Code, and hence the alleged 9 causes of action, after the first do not constitute separate causes of action and the demurrers thereto must be sustained

[3] It is contended by the defendant that the county is not liable for the alleged default in building and constructing the culvert described in the complaint as crossing the state trunk highway in question. By section 1317, Stats., it is provided that--

“On and after May 1, 1918, each county shall adequately maintain the whole of the trunk system lying within the county in accordance with the directions, specifications, and regulations made for the maintenance by the commission.”

Other provisions of this section prescribe the manner and extent in which such roads are to be maintained by the counties, the payment of the actual costs thereof into the county treasury out of the state trunk highway appropriation, and subsection 5 provides:

“Claims for damages which may be due to the insufficiency or lack of repair of the trunk system shall be against the county, and sections 1339, 1340, and 1340a of the statutes shall apply to such claims.”

But instances where the unsafe and dangerous condition was caused by a town, city, or village, or a public service corporation, are excepted, in which event such corporation causing the defect shall be liable for such claim. These provisions clearly indicate that counties are placed in the same relation and have imposed on...