Opinion
December 3, 1952 —
January 6, 1953.
APPEAL from a judgment of the circuit court for Outagamie county: M. G. EBERLEIN, Circuit Judge. Reversed.
The cause was submitted for the appellant on the brief of Walter Melchior of Appleton, attorney, and Bradford, Derber Gabert of Appleton of counsel, and for the respondent on the brief of Ben G. Slater of Milwaukee, attorney, and A. W. Parnell of Appleton of counsel.
Action by plaintiff Connecticut Indemnity Company against Marie C. Prunty, administratrix of the estate of Felix L. Prunty, deceased, for contribution of one half the amounts paid by plaintiff on judgments obtained by Metal Mending Products, Inc., and Marie C. Prunty, individually, for property damage and personal injuries which arose out of an accident on July 17, 1948. Plaintiff moved for summary judgment granting contribution and defendant moved for summary judgment dismissing the complaint. The trial court granted the motion of the defendant, and from the judgment dismissing the complaint, plaintiff appeals.
The facts are not in dispute. On July 17, 1948, the automobiles driven by John P. Vanden Berg, plaintiff's insured, and Felix L. Prunty were involved in an accident. Mr. Prunty and his minor daughter were killed and his wife, Marie C. Prunty, seriously injured. Four actions were thereafter commenced against Vanden Berg and this plaintiff, one by Marie C. Prunty, personally, for her damages; one by Marie C. Prunty, as administratrix of her husband's estate; another by Marie C. Prunty, as administratrix of her daughter's estate; and the fourth by Metal Mending Products, Inc., the owner of the automobile driven by Felix Prunty. Aetna Casualty Surety Company, insurer of the automobile driven by Prunty, was impleaded as a defendant in the action of Marie C. Prunty for her personal injuries. The four cases were consolidated for trial and a single jury verdict was returned finding John Vanden Berg and Felix L. Prunty guilty of negligence.
On motions after verdict plaintiff Connecticut Indemnity Company (defendant there) moved for contribution against the estate of Felix L. Prunty on the judgments of Marie C. Prunty and Metal Mending Products, Inc. The motion was denied and no appeal was taken from such denial.
This is not a proper matter for summary judgment. The defendant in this action, while before the court in the previous actions that were consolidated for trial, was not a party nor was she impleaded as a defendant in the actions brought by Marie C. Prunty, individually, and Metal Mending Products against Vanden Berg and his insurer, the plaintiff here. No judgment could have been rendered against the estate of Felix L. Prunty since it was not a party to those actions.
Contribution is based on common liability, Ellis v. Chicago N.W. R. Co. (1918), 167 Wis. 392, 167 N.W. 1048, and there can be no common liability here until Marie Prunty, as administratrix of the estate, is made a party to an action in which liability is found on the part of her intestate. Grant v. Asmuth (1928), 195 Wis. 458, 218 N.W. 834; Western Casualty S. Co. v. Milwaukee G. C. Co. (1933), 213 Wis. 302, 251 N.W. 491; Milwaukee Automobile Ins. Co. v. Felten (1938), 229 Wis. 29, 281 N.W. 637.
Consolidation of cases for trial does not operate to make each and every party in one case a party in each of the consolidated cases.
". . . consolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another." Johnson v. Manhattan R. Co. (1933), 289 U.S. 479, 496, 53 Sup. Ct. 721, 77 L.Ed. 1331.
Defendant contends that the issue of contribution is res adjudicate because the instant plaintiff's motion for contribution against the estate at the trial of the four previous cases was denied and such decision was not appealed from. The argument has no merit, since one of the elements necessary to make an issue res adjudicata is that the same parties shall have been involved.
By the Court. — Judgment reversed and cause remanded for further proceedings.