Lueke v. Senn ( 1917 )

Rosenberry, J.

The trial court- was of tbe opinion tbat the pleader intended to plead ordinary negligence in the first causé of action and gross negligence in the second cause of action; that two good causes of action were stated, one for ordinary negligence and one for gross negligence, and that for that reason there was no improper joinder, and wholly overruled the demurrer.

That a cause of action based upon the same facts may be pleaded in the same complaint, first as creating a liability for ordinary negligence, and second as creating a liability for gross negligence, depending upon the inferences to be drawn from the facts, is clear from Astin v. C., & St. P. R. Co. 143 Wis. 477, 128 N.W. 265. We are further of the opinion that that part of the complaint denominated first cause of action states facts sufficient to constitute a cause of action for that kind of negligence commonly denominated malpractice. We are of the opinion that the facts stated in that part of the complaint denominated second cause of action are not sufficient to constitute a cause of action showing liability for gross negligence and that therefore but one cause of action is stated in the complaint. The only difference between the two causes of action attempted to be set forth in the complaint is that in the second the defendant is said to have “wantonly* and wilfully misrepresented to her and falsified to her in such regard,” etc. No additional fact or inference is stated. Calling a thing names does not change its character or composition, add to, or detract from it. The demurrer, therefore, should have been overruled as to the first cause of- action and sustained as to the second cause of action, and the order of the trial court should be modified accordingly.

By the Court. — The order appealed from is modified as stated in the opinion, and as so modified is affirmed, with no costs to either party except that respondent is to pay clerk’s fees in this court.