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Third Party Impleaders in Wisconsin Myron L Marquette Law Review Volume 35 Article 2 Issue 2 Fall 1951 Third Party Impleaders in Wisconsin Myron L. Gordon Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Myron L. Gordon, Third Party Impleaders in Wisconsin, 35 Marq. L. Rev. 108 (1951). Available at: http://scholarship.law.marquette.edu/mulr/vol35/iss2/2 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. THIRD-PARTY IMPLEADER IN WISCONSIN HON. MYRON L. GORDON* Third-party impleader is a procedural device by which a defendant, upon motion, may bring into the action a person against whom the defendant will obtain a right of action if the defendant is held liable in the action.1 LEGISLATIVE DEVELOPMENT The first legislative enactment on the subject of third-party im- pleader appears in section 6, chapter 219, Laws of 1915. The legisla- ture in 1913 had requested the Supreme Court to suggest changes "... in the Code practice of the state as will simplify it, relieve it of technicalities and promote the ends of justice .... -2 The Court's suggestions resulted in the following statute: "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." Except for the renumbering of the statute (from section 2610 to section 260.19), pursuant to chapter 4 of Laws of 1925, the statute remained the same from 1915 until the overhauling giVen it in 1935. Section 10, chapter 541, Laws of 1935, clarified the language of the first sentence and removed the second sentence. Some concern may properly arise as to the intention of the legislature in striking from the statute the mandate that "This section shall be liberally construed in order ihat . all closely related contentions may be disposed of in one action.... ." It is arguable that the affirmative striking of a clause relating to liberal construction would evidence a legislative intention * B.A. and M.A. University of Wisconsin, LL.B. Harvard University; Judge of the Civil Court of Milwaukee County. 1 Wis. STAT. (1949) sec. 260.19 (3). 2Joint Res. No. 30 (1913). See Wait vs. Pierce, 191 Wis. 202, 228, 210 N.W. 822 (1926). 1951] THIRD PARTY IMPLEADER to impose strict construction. The revisor's note with reference to the sentence removed is as follows: "(4) may be struck out . It could be attached to many sections or made a separate general declaration. 'Liberally con- strued' has little application to our statutes."3 The revisor of statutes, in a communication addressed to the writer, has stated: "One of the purposes of the revision was to rid the statute of superflous language and circumlocution and other vices of statute drafting. Personally, I am sure that there was no in- tention to change the rule from liberal construction to strict construction . I can not see how anybody could find in the revision an indication that a fundamental change was being made. Unless such a purpose appears so plainly as to be outside of judicial construction, then the revision is to be understood 4 as not having made the change. The revisor indicated that he felt section 370.01 (49) applies to the construction of the revision. Accordingly, there is every reason to believe that the revision did not contemplate a change in the sense of the statute, so far as liberal or strict construction is concerned. CASE LAw DEVELOPMENT The case of Bakula vs. Schwab,5 indicates how little progress the doctrine of impleader had made in 1918. There, a unanimous Court ruled that a judgment in an action against two tort-feasors was not res adjudicata in a subsequent action betwen the tort-feasors on the question of their liability to the injured person. Schwab's vehicle went into a ditch and injured Bakula, his passen- ger. Schwab claimed that he had to swerve to avoid an improper turn by Wilkinson. On Schwab's motion Wilkinson was impleaded. The trial court directed a verdict for Wilkinson, and the jury found Schwab negligent. On Schwab's appeal, the Supreme Court found that it was error to have directed a verdict relieving the impleaded defendant, Wilkinson, and then the Court addressed itself to the effect of this error. "Is the judgment rendered in this action res adjudicata in an action for contribution between the codefendants?"6 In reaching its negative answer, the Court first distinguished between joint tort-feasors and joint contract debtors, saying, "In the latter case, the liability springs from a common source."' 3 Bill 50S (Wis. 1935), note to sec. 10. 4 Ltr. from E. E. Brossard, revisor of statutes, dated February 15, 1950. Circuit Judge Arthur W. Kopp, the member of the Advisory Committee on Rules of Procedure to whom this section of the legislative bill was assigned, wrote me on February 20, 1950, that ". this was simply intended to clarify and make more definite the provisions of the interpleader statute." 5 167 Wis. 546, 168 N.W. 378 (1918). 6 Ibid., p. 553. Ibid., p.554. MARQUETTE LAW REVIEW [Vol. 35 The Court went on to explain that if the judgment were to be con- sidered res adjudicatabetween Schwab and Wilkinson, it would neces- sarily give Schwab the right to appeal. "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 defen- dants upon the subject of contribution." The Court thereupon inquired into the practice of Wilkinson's hav- ing been made a party and announced: "We think that in cases such as this the court should exercise its discretion and deny the appli- cation."9 In its closing paragraphs, the Court once again expressed its philosophy regarding the impleader of joint tort-feasors. "Immemorially it has been the right of the plaintiff to make his own election in the matter of joining tort-feasors as defen- dants. It has been his privilege to institute his action against one or part or all tort-feasors 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."'10 Logically pursued, the Bakula decision would end impleader of tort-feasors. It is not surprising therefore that a later court expressly modified that decision. In Wait vs. Pierce,"' the Court held that al- though a joint tort-feasor's cause of action for contribution is con- tingent on his paying more than his equitable share of the common liability, a judgment creating such common liability is res adjudicata.12 The Court examined other problems of contribution in connection with joint tort-feasors. Thus while it was recognized that a joint tort- feasor's claim for contribution does not become complete until he has been legally compelled to satisfy more than his equitable share of a common liability, the Court, nevertheless, favored "providing for the ultimate settlement by a contingent judgment of all controversies aris- ing out of the action."' 1 Also, the Court commented on the fact that the action over may be for only a part of the total obligation. The Court said, "... he is certainly well within the statute because the 8 Ibid., p. 557. 9 Ibid., p. 558. 10 Ibid., p. 559. This was quoted approvingly in State vs. United States F. & G. Co., 210 Wis. 178, 192, 246 N.W. 434 (1933). 11 191 Wis. 202, 230, 210 N.W. 822 (1926). 12 See Scharine vs. Huebsch, 203 Wis. 261, 268, 234 N.W. 358 (1931). There, for the purposes of settling the liability of several tort-feasors in one action, the Court was prompted to proceed in a manner which could have resulted in two judgments in one lawsuit. '3 191 Wis. 202, 232, 210 N.W. 822 (1926). THIRD PARTY IMPLEADER whole must include an amount less than the whole. The statute would have been clearer in that respect had it said for the amount of the recovery or some part thereof."1 4 In Fisher vs. Milwaukee E. R. & L. Co...5 plaintiff was injured while a passenger on the defendant's streetcar. The streetcar company sought to implead a Dr. Rumph for his alleged negligence in treating the plaintiff after the injury. Rumph was ordered impleaded, and he later demurred to the cross-complaint.
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