Voight v. Aetna Cas. & Sur. Co.

• Decision Date: 01 November 1977
• Docket Number: No. 75-632,75-632
• Citation: 80 Wis.2d 376,259 N.W.2d 85
• Court: Wisconsin Supreme Court
• Parties: Carola M. VOIGHT, Plaintiff-Appellant, v. AETNA CASUALTY AND SURETY COMPANY, a Foreign Insurance Corporation, St. Paul Fire and Marine Insurance Company, a Foreign Insurance Corporation, Columbia Hospital, a Domestic Corporation, Mutual Fire, Marine & Inland Insurance Company, a Foreign Insurance Corporation, Frederick G. Gaenslen, M.D. and Harvey L. Barash, M.D., Defendants-Respondents.

Page 85

259 N.W.2d 85

80 Wis.2d 376

Carola M. VOIGHT, Plaintiff-Appellant, v. AETNA CASUALTY AND SURETY COMPANY, a Foreign Insurance Corporation, St. Paul Fire and Marine Insurance Company, a Foreign Insurance Corporation, Columbia Hospital, a Domestic Corporation, Mutual Fire, Marine & Inland Insurance Company a Foreign Insurance Corporation, Frederick G. Gaenslen, M.D. and Harvey L. Barash, M.D., Defendants-Respondents.

No. 75-632.

Supreme Court of Wisconsin.

Submitted on Briefs Oct. 5, 1977.

Decided Nov. 1, 1977.

Carola M. Voight, plaintiff-appellant, a resident of Dane county, commenced an action in the circuit court for Dane county to recover damages for injuries alleged to have been sustained as a result of three surgical procedures. The defendants are Frederick G. Gaenslen, M.D., Milwaukee, Wisconsin; Aetna Casualty and Surety Company, his insurer; Columbia Hospital, Milwaukee, Wisconsin; St. Paul Fire & Marine Insurance Co., its insurer; Harvey L. Barash, M.D., Madison, Wisconsin; and The Mutual Fire, Marine & Inland Insurance Company, his insurer.

Each of the defendants demurred to the complaint on the grounds that several causes of action were improperly united.

Columbia Hospital and its insurer and Frederick G. Gaenslen, M.D., and his insurer, (hereinafter defendants) individually moved that the venue be changed to Milwaukee county in all actions in which they could be properly united as party defendants.

The trial court sustained the demurrer and granted the motion for change of venue of the defendants. The plaintiff appeals.

Edward Rudolph, Elm Grove, submitted on briefs for appellant; and Jon Erik Kingstad, Milwaukee, of counsel.

Edmund W. Powell and Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee, on brief, for Aetna Cas. & Sur. Co., and Frederick G. Gaenslen, M.D.

James T. Murray, Jr., and Arnold, Murray & O'Neill, Milwaukee, on brief, for St. Paul Fire and Marine Ins. Co. and Columbia Hospital.

Frank M. Coyne, Madison, on brief, for Harvey L. Barash, M.D. and St. Paul Fire and Marine Ins. Co.

Simarski, Goodrich, Brennan & Stack, Milwaukee, on brief, for Mutual Fire, Marine & Inland Ins. Co. and Frederick G. Gaenslen, M.D.

CONNOR T. HANSEN, Justice.

The complaint alleges that on April 5, 1972, defendant-Dr. Frederick Gaenslen performed surgery at Columbia Hospital in Milwaukee to remove what he had diagnosed as a "tumor" near plaintiff's right hip. During surgery, Dr. Gaenslen broke a fragment from a bone. He then stapled the fragment back to the bone and completed the operation without removing the "tumor."

Subsequently, the bone fragment and staple separated from the bone, causing the plaintiff great pain. In November, 1972, she consulted defendant Dr. Harvey Barash of Madison. Dr. Barash surgically removed the loose bone fragment and staple, but did not remove the growth previously identified by Dr. Gaenslen.

The plaintiff later returned to Dr. Gaenslen, who performed surgery in February, 1974, to remove the "tumor."

Thereafter, the plaintiff commenced this action in the circuit court for Dane county against Dr. Gaenslen, Columbia Hospital, Dr. Barash, and their respective insurers. The complaint alleges that Dr. Gaenslen failed to inform the plaintiff of the hazards involved in the first operation and that during that operation he negligently chipped a bone. Columbia Hospital is joined on the theory that it failed to insure that the plaintiff was adequately informed of the hazards of the surgery and failed to see that accepted medical procedures were followed before and after surgery.

Plaintiff alleges that Dr. Barash was negligent in failing to remove the "tumor" during the second operation. She further alleges that she experienced a deadening of the nerves and atrophy of muscles near her right hip as a result of the second operation, a condition which she also says was aggravated by the third operation in February, 1974.

The order of the trial court sustaining the demurrers of all of the named defendants granted the plaintiff twenty days in which to file separate complaints as follows:

(a) Asserting the cause of action based upon the April 5, 1972, surgery and naming as defendants the Columbia Hospital and Frederick G. Gaenslen, M.D., and their insurers;

(b) asserting the cause of action based upon the November, 1972, surgery, and naming as defendants Harvey L. Barash, M.D., and his insurer;

(c) asserting the cause of action based upon the February, 1974, surgery and naming as defendants Frederick G. Gaenslen, M.D., and his insurer.

The order of the trial court also granted motions for a change of venue to the circuit court for Milwaukee county in the actions involving the first and third operations.

On appeal, the plaintiff argues that the trial court erred in holding that the complaint improperly united several causes of action.

This case arises under sec. 263.04, Stats.1973, ¹ which provided:

"263.04 Uniting causes of action. 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. But the causes of action so united must affect all the parties to the action and not require different places of trial, and must be stated separately."

This provision has no application when a complaint states only one cause of action. If a reviewing court determines that more than one cause of action is in fact stated, however, the question of misjoinder of causes must be considered. Caygill v. Ipsen, 27 Wis.2d 578, 581, 582, 135 N.W.2d 284 (1965). Here the trial court determined that the complaint alleges three separate causes of action. This determination is in accord with the decisions of this court.

This court has said that:

" . . . a cause of action must be viewed as a grouping of facts falling into a single unit or occurrence as a lay person would view them. This grouping of facts consists of 'the defendant's wrongful act.' " Caygill v. Ipsen, supra, 582, 135 N.W.2d 286; accord : Hartwig v. Bitter, 29 Wis.2d 653, 660, 139 N.W.2d 644 (1966).

Applying this concept in Caygill, supra, this court held that two automobile accidents some five months apart gave rise to two distinct causes of action although the plaintiff's injuries were indivisible.

Caygill was followed in Fitzwilliams v. O'Shaughnessy, 40 Wis.2d 123, 161 N.W.2d 242 (1968). There the plaintiff was injured in an automobile accident and was again injured in a second accident involving the ambulance transporting her from the scene of the first mishap. This court held that the two collisions were separate and distinct occurrences, and gave rise to separate causes of action.

Similarly, in Butzow v. Wausau Memorial Hospital, 51 Wis.2d 281, 187 N.W.2d 349 (1971), a plaintiff alleged injuries to her hip when she fell on a sidewalk and when she later fell from her hospital bed while being treated for the first fall. Again this court held that two separate causes of action were involved.

These decisions compel the conclusion that each of the operations involved in the instant action was a "grouping of facts falling into a single unit or occurrence." The plaintiff has alleged three distinct "wrongful acts," and her complaint states three causes of action.

The fact that she alleges only one injury, and that her alleged damages may be indivisible does not alter this conclusion. The same argument was advanced without success in Caygill, supra, Fitzwilliams, supra, and Butzow, supra. The court explained in Caygill, supra, 27 Wis.2d at 582, 135 N.W.2d at 286;

"The operative facts, not the consequences, are determinative of a cause of action. 'It is the wrongful act, and not the injury, that creates liability.' " quoting Northern Finance Corp. v. Midwest Commercial Credit Co., 59 S.D. 282, 285, 239 N.W. 242 (1931).

Because the complaint states three causes of action, it is necessary to determine whether the causes are properly joined. Under sec. 263.04, Stats.1973, the causes (1) must affect all the parties to the action; (2) must not require different places of trial; and (3) must be separately stated. Fitzwilliams, supra, 40 Wis.2d 125, 161 N.W.2d 242; Caygill, supra, 27 Wis.2d at 584, 135 N.W.2d 284.

The instant complaint does not satisfy the third of these requirements. This defect is not fatal if the causes are otherwise properly joined, although the complaint would be subject to a motion to make more definite and certain. Caygill, supra, at 584, 135 N.W.2d 284.

However, the complaint also fails the first and second requirements stated above. As Caygill, supra, and Butzow, supra, make clear, a cause of action does not "affect all the parties to the action" unless the defendants are joint tort-feasors or independent tort-feasors whose negligence concurs in time and place to produce a single injury. Caygill, supra, 584-587, 135 N.W.2d 284; Butzow, supra, 51 Wis.2d at 285, 288, 289, 187 N.W.2d 349.

The case before the court involves neither joint nor concurrent negligence. Rather, like each of the cases previously cited, the present action involves alleged "wrongful acts" separated in time. As the trial court observed, this action is similar to the Butzow Case, wherein we stated:

"In the instant case we are not dealing with . . . joint tort-feasors but successive tort-feasors whose negligence did not combine concurrently but sequentially in time to cause injury. The present case is one where a subsequent tort-feasor aggravates a pre-existing injury caused by the negligence of a prior tort-feasor." Butzow, supra, at 285, 187 N.W.2d at 351.

While plaintiff considers the defendants to be "jointly, severally and successively liable . . . ," the Caygill and Butzow Cases firmly establish that the law of this state does not recognize any concept of "joint but successive" tort-feasors. In the present case, as in Fitzwilliams, supra, "it simply cannot be said that the causes of action stated by the plaintiff ' . . ....