Bakula v. Schwab , 167 Wis. 546 ( 1918 )

[EDITORS' NOTE: THE PUBLICATION STATUS OF THIS OPINION IS GOVERNED BY WIS. STAT. RULE 809.23(2) AND (3).] The evidence shows that the day after the accident the plaintiff was confined to her bed and Dr Graham was called to attend her He was in constant attendance upon her until the 19th day of December following, when he was discharged, and Dr Hoermann was employed and attended her, until her recovery. Dr, Graham testified that when he first examined the plaintiff she had a temperature of 103 with severe pains over the entire abdomen, especially on the left side She had an indurated mass on the left side through the vagina extending up to the anterior superior spinous process As time passed on, that ecchymotic condition became greater, due to the fact that the blood became more stagnant and collected about that injured part She became very sick and he was led to believe that she had an abscess in the pelvic cavity On October 31st he put her under chloroform and examined that region He found a congealed gaseated mass He also performed a curettement. On the 21st day of November he performed what he calls a major operation to determine what caused the congested mass in the left iliac fossa. During the time from October 16th to December 19th he saw her from one to three times a day. She was very much excited, weak, had high temperature, and was in bed during all of the time During that time her condition was generally very painful and he considered it extremely serious He expressed the positive opinion that her condition was caused by the injury. When he left her on December 19th she was improving, but she would at least have to have the services of a physician fox six or eight weeks after that. She had temperature when he left her and would have it for at least three weeks from that time.

The plaintiff testifies that after Dr Graham was discharged and Dr Hoermann was placed in charge of the case she was taken to the hospital on the 19th of December, where an operation was performed upon her She remained in the hospital from the 19th day of December until the 10th day of January, when she was taken home and there confined to her bed until April, 1916 That is all we know concerning her condition after Dr Graham was discharged, as Dr. Hoermann was not called as a witness rot the case Neither do we know the reasons for, nor the nature of, the operation performed by Dr Hoermann at the hospital, as the plaintiff could give no information upon that matter.

Upon the trial, pursuant to an order of the court, Dr P H McGovern made a physical examination of the plaintiff Dr Graham was present at this examination He found a fibroid tumor in the womb He testified that the tumor must have been coming on for some time. It was not due to injury It was his opinion that the condition described by Dr Graham was due to the fibroid tumor and not the injury Dr Graham, however, testified positively that there was no fibroid tumor present at the time he was attending plaintiff,

At the conclusion of the testimony defendant Schwab moved to strike out all of the testimony of the plaintiff to the effect that she was taken to the hospital and was there operated on by Dr Hoermann and incurred expense, for the reason that it did not appear in the case that she went to the hospital by reason of the accident He assigns the refusal of the court to strike out this testimony as error He also claims that the court erred in including questionNo 3 in the special verdict, because there was no evidence that she suffered mental pain at any time Another alleged error is the instruction of the court relative to question No 3, wherein the court assumed that the plaintiff was in the hospital until April, 1916 Error is also assigned upon the refusal of the court to grant a new trial, for the reason that there was not sufficient testimony from which the jury could honestly and clearly determine the amount of plaintiff's damages, the damages being necessarily based upon conjecture and guess.

We will dispose of all these assignments of error with the statement that we are entirely satisfied that whatever prejudice, if any, resulted to the appealing defendant by reason of the court's action in these various respects was adequately compensated by the remission of $1,000 from the verdict. We think the testimony fully sustains the judgment for the plaintiff for $2,000 In the first place, she proved expenses in the neighborhood of $500, $275 to Dr Graham, services of a girl at $5 per week, and board at $4 per week, for twenty weeks, and the services of a scrub woman at $3 per week for' a like period This leaves but $1,500 to compensate her for the pain, suffering, inconvenience, and loss of time. That she suffered seriously is fully established by the testimony of Dr Graham, and the trial "judge, in his decision upon a motion for a new trial, says "It seems quite certain that she was a severe sufferer for some time after the accident, and that her suffering was produced by it." She was attended by Dr Graham for more than two months, and his testimony was that she would require the services of a physician, as a result of the injuries, for a period of six to eight weeks thereafter It appears that she was confined to her bed until April, and that she had undergone an operation, in the hospital, between the 19th of December and the 10th of January It does not appear that her prolonged confinement in bed, nor the operation in the hospital, was due to the injury; but, excluding that from consideration, and taking into consideration only the testimony of Dr Graham, from which it may fairly be inferred that she was confined to her bed for a period of four months as a result of the injury, we do not think the judgment is excessive Duncan v. Grand Rapids,121 Wis 626, 99 N. W. 317, Roy v La Crosse,148 Wis 266, 134 N. W. 363

The defendant also seeks a reversal of the judgment because of the error of the court in directing a verdict in favor of the defendantWilkinson, He claims that he is entitled to a reversal because, if the defendant Wilkinson were held, he would be entitled to contribution, that, upon the present state of the record,Wilkinson has been discharged from liability, and that thisis res ad judicata as between Schwab andWilkinson in any future action which may be brought bySchwab against Wilkinson for contribution. The respondent replies that, while the court directed a verdict in favor ofWilkinson, the judgment makes no disposition of the action as to him, that there is no judgment discharging him, that no appeal has been taken from any judgment to which he is a party, that he is not in court on this appeal, and that his lights cannot be considered.

Wilkinson was a party to this action His liability to the plaintiff was in issue A trial thereof was had, and the court directed a verdict in his favor It is familiar that there can be but one judgment in the same action, and that judgment should dispose of all the issues While Wilkinson is not mentioned in the judgment he is not held liable by the terms thereof; and, bearing in mind that the judgment is presumed to have disposed of all the issues, if we are to regard substance lather than form, the judgment as rendered will have to be construed as one in favor ofWilkinson It is idle to say that Wilkinson's lights are not judicially determined in this action, and the judgment must be so construed The notice of appeal was addressed to and served onWilkinson, he is a party to this appeal, though in default, and the effect of the judgment as to him may be considered.

We think there was sufficient evidence in this case to take the question of Wilkinson's negligence to the jury, and that the court erred in directing a verdict in his favor. This being so, it becomes necessary to consider whether the defendantSchwab is entitled to a reversal of the judgment by reason thereof

Appellant's argument, as before stated, is based upon the proposition that the judgment is res adjudicata uponWilkinson's liability to him in any future action whichSchwab may bring against Wilkinson for contribution We do not consider the question of whether, under the facts shown,Schwab would have a valid claim for contribution againstWilkinson in any event That question can only arise when such action shall be brought We must consider, however, whether the judgment in this action, as we have construed the same, is resadjudicata upon the question of defendant Wilkinson's liability to the plaintiff in any future action whichSchwab may bring against Wilkinson for contribution, and, if so, whether appellant is entitled to a reversal thereof in order to protect him from such result

Is the judgment rendered in this action res adjudicata in an action for contribution between the codefendants? It is generally held that a judgment in favor of the plaintiff against one or more codefendants is res adjudicata in subsequent actions between such codefendants so far as the question of indebtedness of the defendants to the plaintiff is concerned, but no farther An examination of the authorities, however, will disclose that in the cases where it has been so held the indebtedness was based upon contract binding the defendants either jointly or jointly and severally, or where there was a responsibility over, as in cases of principal and surety, and the like Under such circumstances there is a manifest propriety in holding the judgment in the original action to be res adjudicata upon the question, because all defendants, parties to such action, had equal right and opportunity to contest the issue and to appeal from an adverse decision. In such question all defendants had a common interest, common rights, and common opportunities Furthermore, where the liability of the defendants to the plaintiff is founded, upon a contract, whether written or resting in parol, the judgment in the original action establishes the status, the force and effect of the contract, and fixes the rights of all who are parties to the contract and parties to the action so far as its validity is concerned, and fixes the amount the plaintiff who sues thereon is entitled to recover.

We have been cited to no case in which it has been held that a judgment rendered in an action against separate tortfeasors isres adjudicata even upon the question of the liability of the defendants to the plaintiff in a subsequent action between the tortfeasors, and our independent search has revealed but one such case In Westfield G M Co v. Nobleville E G R Co13 Ind. App. 481, 41 N. E. 955, the court expressed the opinion, under such circumstances as we are considering here, that while the rights of defendants as between them selves are not adjudicated, yet the fact of the liability of each to the plaintiff is adjudicated and determined both as between themselves and him and between each other It will be noticed that this is not the opinion of a court of last resort. If it does not constitute the only authority in this country upon the question, we do not hesitate to say that it has received but scant judicial consideration, and we feel free to approach the question as an original one, and to adopt such conclusion as seems most logical and will best promote the interests and preserve the rights of litigants.

We see a striking difference between an action brought to hold independent tortfeasors and an action based upon a contract defining the liabilities of the defendants to the plaintiff. In the latter case the liability springs from a common source. It is defined by the same instrument It is established by the same language In truth and in fact, the liability is joint In the case of independent tortfeasors, such as here, the liability grows out of the independent conduct of each. defendant The term "joint tortfeasors," so often used, is misleading to say the least In cases like this they are not joint tortfeasors in any other sense than that they may be joined as defendants by one who has suffered injury or damage by reason of their independent but concurring wrong They may both or all be liable for the injury which the plaintiff has sustained, but such liability does not arise from their joint action It arises from then independent action, which concurred to consummate the injury. If it be found in such an action that A is liable for the injury it does not follow that B also is The liability of one to the plaintiff is not fixed when that of the other is ascertained, because then liability does not spring from a common source. The liability of each grows out of an entirely independent state of facts, We believe that the foregoing is sufficient to indicate that the leason of the rule which makes the judgment in the original action against defendants, whose liabilities are founded upon contract, res adjudicata of the amount and nature of the indebtedness of all defendants to the plaintiff, does not apply in tort actions.

Having pointed this distinction between actions on contract and actions in tort, we will now inquire whether the situation presented meets the tests of fundamental essentials necessary to, constituteres adjudicata. We think it will fail to meet at least some such tests necessary to constitute it res adjudicata even upon the question of the indebtedness or liability of defendants to the plaintiff in a subsequent action for contribution between the defendants.

It is fundamental and universal that the former judgment profferedas res adjudicata in a subsequent suit must have been rendered in an action in which the parties to the subsequent suit were adverse parties What is meant by adverse parties scarcely needs definition Its significance is apparent from the expression itself They must be opposite parties to an issue between them The issue must be proffered by one and controverted by the other They must be arrayed on opposite sides of the issue Manifestly the relation between Schwab andWilkinson in the instant case does not respond to this requirement There was no issue between Schwab andWilkinson, The plaintiff was endeavoring to hold both. It was the endeavor of each to escape liability to the plaintiff Each might have sought to escape this liability by fastening the blame upon the other, but in no other sense were they adverse partiesSchwab did not have control of the proceedings to enable him to exhaust the question of Wilkinson's liability. A situation apt to arise under similar circumstances is well illustrated by the case of Ellis v. C N. W. R. Co., ante, p 392, 167 N W 1048 In that case it appeared that the person injured sued the Wisconsin Traction, Light, Heat Power Company and the Chicago Northwestern Railway Company Upon the trial plaintiff's efforts were vigorously addressed to the matter of establishing the negligence and liability of the traction company, no particular attention being paid to the railway company, resulting in a nonsuit as to the latter The traction company being powerless to properly present the case against the railway company, Ellis a stock-holder and officer of the traction company, feeling that, it matters continued in such a pass, it would result in that, company being held exclusively liable, purchased the claims of the injured persons in order to protect the rights of the traction company and to secure trial of the case against the railway company Will any one argue that the traction company and the railway company were adverse parties in the original litigation? And is there any justice in saying that the traction company should be bound by the outcome of that suit in its future action for contribution against the railway company? It seems to us not, and that to do so would be a reproach to the law and to legal procedure.

In arriving at a determination of this question we may and should look to the consequences An element essential to constitute res adjudicata as a light of appeal from the judgment. If this judgment is to be held to be res adjudicata between Schwab and Wilkinson, it is apparent that Schwab has the right of appeal, because he is an aggrieved party Sec 3048, Stats But what does that mean? It means that the plaintiff, who is entirely satisfied with the judgment she has secured, must be put to the burden, expense, and hardship of another trial of her action Such a proceeding would be intolerable It cannot be thought of. This plaintiff must not be subjected to any such burden because of a possible future controversy between the defendants upon the subject of contribution The suggestion that the case should be reversed for this reason becomes more absurd when we reflect that a new trial of the action will settle nothing betweenSchwab and Wilkinson Their rights are not at issue and cannot be until the judgment has been paid, because until that time an action for contribution does not accrue The only thing to be accomplished by a new trial is to save defendant Schwab from a conclusive judicial determination of a single fact necessary for him to establish in older to recover contribution, namely, the fact that Wilkinson's negligence did not concur in producing the actionable wrong If the defendant Wilkinson had not been made a party no question of res adjudicata, would have arisen Why will not ``justice be done by leaving Schwab and Wilkinson in the same position they would have been if he had not been made a party? It seems to us that not only the application of well established legal principles, but considerations of justice as well, dictate the conclusion that the judgment appealed from is notres adjudicata upon this question.

It follows that Schwab is not aggrieved by that feature of the judgment releasing Wilkinson He cannot appeal therefrom and cannot secure a reversal and new trial because the court erred in releasing Wilkinson. The judgment will have no more force or effect in this respect than if Wilkinson had not been made a party to the action This leaves not onlySchwab, but any independent tortfeasor at liberty to bung his action for contribution against any and all persons who it is claimed were in part responsible for the wrong, and this, whether they were made parties to the original action or not, and the judgment cannot be used by a party discharged in the original suit, in an action for contribution, for the purpose of showing that his negligence did not concur in producing the wrong

While what has already been said is all that is necessary to dispose of the issues of this case, we deem it proper to refer briefly to the practice indulged in bringing in Wilkinson as a party defendant at the instance of Schwab. Schwab's action in this respect was based upon sec 2610 of the Statutes, which makes provision for the bringing in of all parties necessary to a complete determination of the controversy, and especially upon the provision added thereto by sec 6, ch. 219, Laws 1915, which provides that "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 lights of all parties may be finally settled in one action, and the court may in its discretion make such order" We think that in cases such as this the court should exercise its discretion and deny the application

Prom what has already been said it is plain that the interest ofSchwab did not require the bringing in of Wilkinson. In such case the judgment rendered will not affect the right of the party held liable, to contribution from those whose wrongs contributed to the liability The judgment rendered cannot dispose of the rights of the defendants as between each other upon the question of contribution Such action will not accrue until the judgment has been paid. There can be no cross-issue between the defendants upon this subject. The reason for the provisions of sec. 2610 is to enable the court to determine the rights of all interested in the controversy in the one action. From the very nature of things this cannot be done in an action of this nature There is no purpose or object, therefore, in bunging in other parties who may also be liable Their presence only adds confusion This troublesome question would not have arisen if the court had denied the application to make Wilkson a party to the action Immemorially it has been the right of the plaintiff to make his own, election in the matter of joining tortfeasors as defendants It has been his privilege to institute his action against one or part or all tortfeasors responsible to him We can see no reason why this venerable rule should be changed, nor why the plaintiff should be compelled to involuntarily litigate with parties not of his own choosing.

We are impelled to make these observations not only because the record here brings the matter forcibly to our attention, but because in the Ellis Case (Ellis v. C N. W. R. Co,ante, p 392, 167 N. W. 1048), where it was held that contribution may be had between tortfeasors who are guilty of no intentional or conscious wrong, the same practice was indulged As nothing was said concerning the practice in the opinion rendered in that case, it may be considered to have met with our approval The dominant question there considered was whether there could be contribution between such tortfeasors No point was made on the practice indulged and it was not considered by us The Ellis Case and this may be regarded as supplementary of each other The Ellis Case deals with the question of substantive law and this deals with the matter of procedure There is no conflict between the two.

By the Court. — Judgment affirmed.