W. Cas. & Sur. Co. v. Milwaukee Gen. Const. Co.

• Decision Date: 05 December 1933
• Citation: 213 Wis. 302,251 N.W. 491
• Court: Wisconsin Supreme Court
• Parties: WESTERN CASUALTY & SURETY CO. v. MILWAUKEE GENERAL CONST. CO. ET AL.

213 Wis. 302

251 N.W. 491

WESTERN CASUALTY & SURETY CO.

v.MILWAUKEE GENERAL CONST. CO. ET AL.

Supreme Court of Wisconsin.

Dec. 5, 1933.

Appeal from an order of the Circuit Court for Milwaukee County; Gustave E. Gehrz, Circuit Judge.

Action by the Western Casualty & Surety Company, a corporation, against the Milwaukee General Construction Company, a corporation, and another. From an order sustaining a demurrer to plaintiff's complaint, plaintiff appeals.--[By Editorial Staff.]

Reversed and remanded.

Action to recover from the defendant one-half of the amount paid in settlement of damages caused by the concurring negligence of Lucile N. Clas and the Milwaukee General Construction Company. A stipulation was entered into by the plaintiff and defendant waiving all objections to the sufficiency of the allegations of the plaintiff's complaint stating a cause of action, except the objection that it appeared on the face of the complaint that recovery was sought for contribution from an alleged joint tort-feasor and its liability insurance carrier after a compromise and settlement having been made by the plaintiff before the liability of its assured was fixed by a judicial determination.

The complaint alleges, in addition to the formal allegations, that on October 12, 1928, Lucile Clas negligently drove her car, in which Mrs. Manhardt was riding, into an obstruction placed in the highway by defendant, who neglected to place lights or warning signs thereon, that the concurring negligence resulted in damage to Mrs. Manhardt, who, together with her husband, made claim for compensation for damages and threatened to institute legal actions unless the claims were settled. The plaintiff in this case was the insurance carrier of Lucile N. Clas. Before making settlement, plaintiff demanded of defendants that they contribute their just share of the amount to be paid the claimants. This the defendants refused to do. The plaintiff recognized the liability, compromised, and settled the claims for $1,700, obtained a release from the claimants covering all parties. In the complaint it alleges that the settlement was fair and reasonable, and upon these facts seeks judgment for $850. The defendant Maryland Casualty Company was the insurance carrier of the Milwaukee General Construction Company. A general demurrer was interposed by each defendant on the ground that the complaint did not state facts sufficient to constitute a cause of action against the defendant. The demurrer was sustained, and this appeal is from the order entered accordingly.

Bender, Trump, McIntyre & Freeman, of Milwaukee (Eugene L. McIntyre and Ronold A. Drechsler, both of Milwaukee, of counsel), for appellant.

Sanders & McCormick, of Milwaukee, for respondents.

FAIRCHILD, Justice.

The only issue under the pleadings as supplemented by the stipulation is the right of one of two or more joint tort-feasors to reimbursement for moneys paid on account of a common liability arising out of an act in which the negligence of each concurred. The plaintiff made a settlement with the injured parties after claims had been made, but before suit was commenced. Before making the payment, plaintiff demanded that the other joint tort-feasor pay its share by way of contribution. This was refused, the settlement was made, and a full release of all was taken.

[1][2][3][4] Contribution between joint tort-feasors is the rule in this state, and may be enforced when the common liability exists, where the wrong is a mere act of negligence involving no moral turpitude. Ellis v. Chicago & N. W. R. Co., 167 Wis. 392, 167 N. W. 1048. This right exists in favor of an alleged joint tort-feasor who has paid more than his just share of such a loss. The right is founded upon principles of equity and natural justice. Brown v. Haertel, 210 Wis. 354, 244 N. W. 633, 246 N. W. 691. It is a liability which the law has imposed upon the joint tort-feasors because of the circumstances in which they placed themselves by their negligent conduct. Out of this common liability arises the right to contribution when one joint tort-feasor has paid more than his equitable share of this common obligation. Wait v. Pierce, 191 Wis. 225, 209 N. W. 475, 210 N. W. 822, 48 A. L. R. 276. Some confusion seems to exist as to when joint tort-feasors are subject to a common liability. Logically, it would appear that the right comes into being when the combination of negligent acts gives force and direction to events necessarily resulting in an occasion for paying damages. This does not depend upon an action being begun. A lawsuit may be necessary to settle the differences arising between the parties, but it is not within the province of a court as an original matter to give this right or to take it away. It has its inception at the time the negligence of the alleged joint tort-feasors concurs to bring the injuries to the third person. It springs up at the time, and then and forever afterwards, until the claim is outlawed, they or either of them are under a liability to pay for injuries their negligent acts have caused. This inchoate right ripens into a cause of action when one of the joint tort-feasors pays more than his proportionate share of the claim for which all are liable. The doctrine rests upon compulsory payment, but compulsion in legal contemplation exists when a legal obligation to pay exists. McFarlane v. Calhoun, 2 Pr. Edw. Isl. 283; Blanchard v. Blanchard, 201 N. Y. 134, 94 N. E. 630, 37 L. R. A. (N. S.) 783. One confronted with an obligation that he cannot legally resist is not obliged to wait to be sued and to lose a reasonable opportunity to make a favorable compromise in order to avoid assuming the character of an interloper or volunteer in the matter of paying a liability common to him and another. 13 C. J. 823, § 6; 6 R. C. L. 1045.

The right to compel contribution was recognized in Ellis v. Chicago & N. W. R. Co., supra. The justice of the doctrine is unquestionable. In our study of this question in this case, we find that a statute exists in Kentucky (section 484a) which reads: “That contribution among wrong doers may be enforced where the wrong is a mere act of negligence and involves no moral turpitude.”

And section 484 of the same statute reads: “The extent of recovery, in cases of contribution, shall be the same in courts of law that it is in a court of equity.”

The statutes of that state fix the limits and liabilities of contribution on the same basis as they exist in Wisconsin. And a case in that jurisdiction, Consolidated Coach Corporation v. Burge, 245 Ky. 631, 54 S.W.(2d) 16, 17, 85 A. L. R. 1086, supports the conclusion we have reached in this case. In the Kentucky case no judgment...