Opinion
January 6, 1958 —
February 4, 1958.
APPEAL from an order of the county court of Chippewa county: ORRIN H. LARRABEE, Judge. Affirmed.
For the appellant there were briefs by John R. Frampton of Chippewa Falls, and Kaftan, Kaftan Kaftan of Green Bay, and oral argument by Mr. Frampton.
For the respondent Wm. H. Heinemann Creameries, Inc., there was a brief and oral argument by Morris Karon of Milwaukee.
Stafford, Pfiffner Stafford of Chippewa Falls, for the respondent Security National Bank of Durand.
On November 7, 1956, Security National Bank of Durand brought action against Plymouth Cheese Company, Wm. H. Heinemann Creameries, Inc., and Chain-O-Lakes, Inc. The complaint disclosed that Chain-O-Lakes had owed Plymouth $10,204.41, had owed Heinemann $9,341.99, and that Swift Company had owed Chain-O-Lakes $36,375.71, which Chain-O-Lakes assigned to the Bank. On or about November 15, 1954, Plymouth and Heinemann each commenced garnishment actions against Chain-O-Lakes as principal and Swift Company as garnishee defendant. Swift's answers disclosed the Bank's claim that it owned the indebtedness due from Swift and the Bank was made a party to each action. In each, the Bank successfully established its ownership. Swift paid the Bank $15,000 on January 22, 1955, $11,000 on March 3, 1956, and the balance on June 25, 1956, immediately upon being released of liability as garnishee. The Bank alleged that the defendants had unlawfully deprived the Bank of the use of the funds from November 15, 1954, to the dates of payment and that Chain-O-Lakes claims it does not owe the Bank interest during the same time. The Bank demanded judgment "against the Plymouth Cheese Company and the Wm. H. Heinemann Creameries, Inc., and in the alternative against Chain-O-Lakes, Inc., for $3,000 damages. . . ."
Plymouth demurred to the complaint for improper joinder of causes of action. The demurrer was overruled April 30, 1957. On May 23, 1957, Plymouth served an answer.
Heinemann answered the complaint and served a cross complaint against Plymouth. It alleged facts identifying the parties and then alleged:
"That in the event it is determined in the above action that the defendant Heinemann Creameries and the defendant Plymouth Cheese Company are jointly liable for any damages claimed against them by the plaintiff in the above-entitled action, then and in that event the defendant Heinemann Creameries will have a cause of action over and against the defendant Plymouth Cheese Company, and the defendant Heinemann Creameries will have a right to recover from the defendant Plymouth Cheese Company for contribution according to law of any amount of damages awarded to the plaintiff and paid by the defendant Heinemann Creameries."
Heinemann asked for judgment dismissing the complaint or for contribution in the event of determination of joint liability.
Plymouth demurred to the cross complaint for failure to state facts sufficient to constitute a cause of action. The demurrer was overruled June 14, 1957.
Plymouth appealed from the order overruling its demurrer to the complaint and from the order overruling its demurrer to the cross complaint. The Bank moved in this court for dismissal of the appeal from the order overruling its demurrer to the complaint. It asserted that by serving an answer, Plymouth had waived its right to appeal. The Bank's motion was granted.
Plymouth's concern is that if its garnishment be held wrongful it should not be held liable for more than the damage caused by its own act. Appellant challenges any theory that Plymouth and Heinemann are jointly liable for all the damage caused by both garnishments. We surmise that the Plymouth garnishment was concluded first and that damage for which it might be found directly responsible is believed to be less than half the total. Heinemann does not claim that liability, if any, to the Bank rests jointly upon it and Plymouth, but asserts a right of contribution if the liability be determined to be joint.
The Bank's complaint suggests, by the form of the prayer for relief, that upon some theory, not readily apparent, Plymouth and Heinemann will be liable, jointly and severally, for the entire damage suffered by the Bank. But the sufficiency of the Bank's complaint as a predicate for joint liability is not before us on this appeal. If the Bank establishes several liability on the part of either, both, or neither of defendants, no question of contribution will arise. If joint liability be established a judgment of contribution will be in order.
Even where defendants do not file a cross complaint asking judgment for contribution, the court treats the pleadings as amended and grants such relief if the record shows the parties are entitled to it. Haines v. Duffy (1931), 206 Wis. 193, 199, 240 N.W. 152; Zimmers v. St. Sebastian's Congregation (1951), 258 Wis. 496, 504, 46 N.W.2d 820.
Heinemann's cross complaint sets forth, conditionally, the fact from which its right to judgment for contribution would arise: A determination of joint liability. It is true that the cross complaint sets forth no facts from which one could determine that the liability asserted by plaintiff is joint. That is unnecessary because the complaint shows that the plaintiff is claiming a common recovery against both defendants for alleged torts. Virtually all that is required in the cross complaint in this situation is a conditional demand for judgment of contribution, the judgment being further conditioned upon payment by one defendant of more than his equitable share of the joint liability. This is not the case of an action by a plaintiff against one tort-feasor who, in turn, causes interpleader of another party and must allege facts showing joint liability to the plaintiff in order to state a cause of action for contribution. Wait v. Pierce (1926), 191 Wis. 202, 209 N.W. 475, 210 N.W. 822, falls into the latter class. At page 232, that decision recognizes the contingent character of the cause of action for contribution.
By the Court. — Order affirmed.