Wait v. Pierce

• Decision Date: 09 November 1926
• Parties: WAIT v. PIERCE ET AL.
• Court: Wisconsin Supreme Court

191 Wis. 202

210 N.W. 822

WAIT

v.PIERCE ET AL.

Supreme Court of Wisconsin.

Nov. 9, 1926.

On motion for rehearing. Former opinion adhered to.

For former opinion, see 209 N. W. 475.

ROSENBERRY, J.

The attention of the court is called to the fact that the opinion did not dispose of the second contention made by the respondent in support of the order appealed from, which is that, even if it be held, as it now is held, that a wife may maintain an action against her husband for a tort, nevertheless the copartners cannot by way of cross-complaint maintain an action against G. E. Wait, the husband of the plaintiff, for contribution, because such right does not come into existence until one of two obligors has discharged more than his equitable share of the common obligation, and for that reason there is no cause of action against the defendant Wait in favor of the partners.

The origin of the right of contribution and the history of its growth and development is set forth at length in Estate of Koch, 148 Wis. 548, 134 N. W. 663. What is said there relates to the right of contribution as between common obligors under a contract. At the time In re Estate of Koch was decided (1912), the right of contribution as between joint tort-feasors was not recognized in this state. It was given recognition in Ellis v. Chicago & North Western Railway Company (1918) 167 Wis. 392, 167 N. W. 1048. See, also, Contribution between Joint Tort-Feasors, 1 Marquette Law Review, 141; Contribution Between Persons, 12 Harvard Law Review, 176.

[1] The right of contribution is founded upon principles of equity and natural justice, and does not spring from contract. Whether the common obligation be imposed by contract or grows out of a tort, the thing that gives rise to the right of contribution is that one of the common obligors has discharged more than his fair equitable share of the common liability.

The right to contribution was first recognized and enforced in courts of equity, and for a long time the right could not be enforced in a court of law. Adams v. Hayes, 120 N. C. 383, 27 S. E. 47;Couch v. Terry's Adm'rs, 12 Ala. 225;Chipman v. Morrill, 20 Cal. 130;Boutin et al. v. Etsell, 110 Wis. 276, 85 N. W. 964.

[2][3] In North Carolina common-law courts declined jurisdiction in cases of contribution until it was conferred upon them by statute. Sherrod v. Woodard, 15 N. C. 360, 25 Am. Dec. 714. The right to contribution being the same in contracts and in tort as limited in the case of Ellis v. C. & N. W. Railway Co., the right to bring in parties where the right of contribution is claimed is in its nature the same whether the action be brought upon contract or sounds in tort. Where the tort action is one in which the right of contribution may exist, the court, in the exercise of its discretion as to whether or not parties should be brought in, may be moved by different considerations than would move it in contract cases, but the right is in its nature the same.

[4][5][6] The contention made by respondents in this case that one joint tort-feasor has no right of action against another joint tort-feasor until he has discharged more than his equitable share of the common obligation is sound. It is equally well settled that a cross-complaint must state a cause of action (First Nat. Bank v. Frank, 131 Wis. 416, 111 N. W. 526), and is subject to demurrer, if it does not. This, however, does not completely dispose of the right of the copartners to set up the matters contained in their cross-complaint, in which they allege that their codefendant, G. E. Wait, was guilty of negligence, which directly and proximately contributed to the plaintiff's injury, and pray that--

“in the event that they, the said George P. Pierce and Andrew Borenz and the said G. E. Wait are jointly found guilty of actionable negligence, then the defendants George P. Pierce and Andrew Borenz have judgment against the said G. E. Wait for one-half of the amount awarded to plaintiff and paid by defendants George P. Pierce and Andrew Borenz.”

The right of the copartners to set these matters up by way of a cross-complaint is derived from section 263.15, formerly section 2656a, and section 260.19, formerly section 2610. These sections were an innovation upon the rules of the common law relating to pleadings. Speaking of these sections, in Hemenway v. Beecher, 139 Wis. 399, 121 N. W. 150, the court said:

“Section 2610, Stats. (1898), relating to the interpleading of additional parties, and section 2656a of the same statutes, relating to cross-complaints and proceedings where controversies arise between defendants, are very broad in their terms and were intended to give courts plenary powers not only to call in new parties, but to mould the pleadings and dispose of all branches of a controversy in one action after having obtained jurisdiction of the necessary parties. The idea in both sections is to enable the court to grasp all the issues germane to the main controversy, whether arising between the plaintiff and the defendant, or between defendants, or between a defendant and an outside party, and dispose of them in one and the same action, and thus avoid circuity of action and multiplicity of suits. This purpose should be encouraged rather than discouraged by the courts. It is in line with the idea that courts are formed to decide controversies without unnecessary delay and without undue refinement as to pleading or procedure so long as the parties are before the court and the issues understood.”

The interpleader statute appears as section 22 of chapter 122 of the Statutes of 1858. By chapter 219 of the Laws of 1915 the following provision was added:

“A defendant who shows by affidavit that if he be held liable in the action he will have a right of action against a third person not a party to the action for the amount of the recovery against him, may, upon due notice to such person and to the opposing party, apply to the court for an order making such third person a party defendant in order that the rights of all parties may be finally settled in one action, and the court may in its discretion make such order. This section shall be liberally construed in order that, so far as practicable, all closely related contentions may be disposed of in one action, even though in the strict sense there be two controversies, provided the contentions relate to the same general subject and separate actions would subject either of the parties to the danger of double liability or serious hardship.”

The Legislature of 1913 requested the Supreme Court to suggest such changes in the court practice of the state “as will simplify it, relieve it of technicalities and promote the ends of justice, and to report their suggestions to the Legislature which convenes in 1915.” Jt. Res. No. 30, 1913. The suggestions made by the court pursuant to this request are embodied in chapter 219 of the Laws of 1915.

[7][8] Whether or not a third person not a defendant should be made a party under the provisions of the section as amended rests within the sound discretion of the court. Ertel v. Milwaukee E. R. & L. Co., 164 Wis. 380, 160 N. W. 263. In that case the trial court denied the application, and its determination was approved by this court. There was a similar holding with respect to the provisions of section 263.15 in Schmuhl v. Milwaukee E. R. & L. Co., 156 Wis. 585, 146 N. W. 787. In this connection the case of Bakula v. Schwab, 167 Wis. 546, 168 N. W. 378, deserves attention. In that case plaintiff brought suit against Schwab on account of personal injuries...