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Bolick v. Gallagher

Supreme Court of Wisconsin
Mar 2, 1954
63 N.W.2d 93 (Wis. 1954)


February 3, 1954 —

March 2, 1954.

APPEAL from an order of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Dismissed.

For the appellants there were briefs by Toebaas, Hart, Kraege Jackman of Madison, and oral argument by W. L. Jackman.

For the respondent there was a brief by Arthur, Dewa, Nestingen Tomlinson of Madison, and oral argument by Ivan A. Nestingen and Robert W. Arthur.

Action begun by Robert Bolick individually and as special administrator of the estate of Mathilda M. Bolick, deceased, against John T. F. Gallagher, Robert A. Straughn, and A. S. Jackson, and J. A. Jackson, d/b/a Jackson Clinic. Plaintiff seeks to recover for himself damages for the wrongful death of his wife, and for her estate damages for pain and suffering from which she would not have suffered except for the negligence of said defendants, and for expenses incurred.

The plaintiff has moved to strike that part of the answer contained in paragraph 6 of defendants' answer, which is as follows:

"6. Further answering defendants allege that they are informed and verily believe that on or about December 20, 1951, plaintiffs commenced actions in said court against Homer Pfanku and Cheesemakers Mutual Casualty Company, alleging that Homer Pfanku and Cheesemakers Mutual Casualty Company were liable to plaintiffs for injuries to and death of Mathilda M. Bolick and for damages and losses to plaintiff arising therefrom because such injury, death, losses, and damages were caused by the negligence of Homer Pfanku and that Cheesemakers Mutual Casualty Company was liable to plaintiffs because it insured Homer Pfanku against loss by reason of liability imposed by law. That a fully complete compromise and settlement of the issues in said actions was effected by the payment to plaintiffs by Homer Pfanku and Cheesemakers Mutual Casualty Company of $7,600. That plaintiffs in said actions made claim for the same injuries and death of Mathilda M. Bolick as they seek damages for the above-entitled action against these defendants and the injuries described in said actions as having been the result of an automobile accident are the same injuries it is alleged defendants Gallagher and Straughn treated her for."

There was a motion by the defendants to require plaintiff to answer upon adverse examination the following questions:

" Q. Now you started two lawsuits against Mr. Pfanku, the man that ran into you, did you not? A. Yes.

" Q. And you made a settlement with him, did you not? A. Yes. . . .

" Q. Is it not a fact that Mr. Pfanku and his insurance company, the Cheesemakers Mutual Casualty Company, paid you $7,500 in settlement of your claim against Mr. Pfanku and the Cheesemakers Mutual?"

There is in the record a partial release constituting a covenant not to sue those already admittedly involved in the collision, and reserving the cause of action here sued upon. Plaintiff's motion to strike was granted, and defendants' motion to require plaintiff to answer certain questions upon adverse examination was denied. Defendants appeal.

When allegations are made a part of an answer which is pleaded in its entirety as an answer to a complaint, a motion to strike does not have the essentials of a demurrer, and an order made thereon is not an appealable order. Paraffine Companies v. Kipp, 219 Wis. 419, 263 N.W. 84. There are cases where an order made on a motion to strike out a portion of an answer when pleaded as a separate defense has been reviewed upon appeal on the ground that there was in effect a ruling on a demurrer. Williams v. Journal Co. 211 Wis. 362, 247 N.W. 435. The ruling on the challenge here of the relevancy of recitals in the pleadings necessarily resulted in an order from which this court has no jurisdiction to entertain an appeal. Wiesmann v. Shanley, 124 Wis. 431, 102 N.W. 932; Gooding v. Doyle, 134 Wis. 623, 115 N.W. 114; State v. Lewis, 164 Wis. 363, 159 N.W. 746. Instead of giving the power to search the record as a demurrer does, as it may relate to the complaint ( State v. Milwaukee, 145 Wis. 131, 129 N.W. 1101; Stephens v. Wheeler, 193 Wis. 164, 213 N.W. 464; Bingham v. Board of Supervisors, 127 Wis. 344, 106 N.W. 1071), the motion to strike seeks only a ruling on the relevancy of the matter called to the attention of the court.

A case illustrative of the proper procedure with reference to motions to strike is found in Gilbert v. Hoard, 201 Wis. 572, 573, 230 N.W. 720. There the plaintiff moved to strike certain allegations from the defendant's answer. The court granted the motion. On appeal, Mr. Justice FOWLER said: "An order granting a motion to strike out a portion of an answer pleaded as a separate defense may be reviewed on appeal on the ground that it is in effect an order sustaining a demurrer. Wisconsin F. F. B. Co. v. Southern S. Co. 188 Wis. 383, 206 N.W. 204. But this does not warrant reviewing an appeal from an order striking out a portion of an answer not so pleaded, as a demurrer does not lie to a portion not so pleaded."

This is an action to recover damages for pain and suffering due to malpractice, and the issues necessarily arise out of the cause of action alleged and the answer of the defendants. The action is brought to recover damages for the negligent acts of the defendants in the treatment of one who had been the victim of an automobile collision. The complaint is for acts following and, as far as the complaint is concerned, independent of the preceding injuries. The claim brought forth by the plaintiff arises out of the relation of physician and patient, and the plaintiff has definitely confined the grounds of his complaint to matters arising in the hospital while his wife was in the charge of the defendants. Plaintiff insists that the order granting its motion to strike is not one from which an appeal can be brought.

The pleader is not permitted to inject by way of recital redundant or immaterial matter even if he numbers the paragraphs. A motion to strike is the procedure to be followed when there has been an improper mingling in one statement of several grounds of defense. An early case, Horton v. Arnold, 17 Wis. 143, treated with an allegation in an answer that the chattel note sued upon by the assignee thereof was transferred after date, inserted for the purpose of rendering admissible the defense of failure of consideration. It was ruled that such allegation in the answer was redundant and immaterial and should be stricken on motion. The objectionable statements in the instant case, which were stricken from the answer by the court below, appear in the foregoing statement of facts and need not be repeated here. The motion to strike was resorted to because the matter, if true, was not pleaded as new matter and set out as a separate defense and cannot be challenged on demurrer. It is not stated as a separate defense or so declared upon as to be a defense to the claim of malpractice, nor is it set up as a partial defense affecting the amount of damages as required by sec. 263.16, Stats. See Greene v. Waters, 260 Wis. 40, 49 N.W.2d 919.

A motion to strike was within plaintiff's right. In Akerly v. Vilas, 25 Wis. 703, we find the following principle stated: That in case of the improper mingling in one statement of several grounds of defense, the remedy is by motion to strike. See also National Distilling Co. v. Cream City Importing Co. 86 Wis. 352, 56 N.W. 864.

By the Court. — Appeal dismissed.

I agree that it has been definitely established that an order striking portions of an answer is not appealable. I do not agree, however, that we cannot or should not in this case treat the motion as a demurrer as defendants request we do.

"A motion to strike out in its entirety a separate defense is, in its legal effect, a demurrer." Williams v. Journal Co. 211 Wis. 362, 365, 247 N.W. 435.

The defense which was stricken by the trial court is contained in its entirety in paragraph 6 of the answer. It is not seriously contended that it does not state a defense, at least pro tanto. It lacks nothing except the few words which would expressly denominate it as a separate defense. In Paraffine Companies v. Kipp, 219 Wis. 419, 421, 263 N.W. 84, we said:

"Even a general demurrer to specific paragraphs of an answer, where no single paragraph purports to contain within itself a completely stated defense to the complaint or any part thereof, is wholly ineffective to raise an issue of law. A general demurrer must be directed to the entire answer, or to some separately stated portion thereof purporting to constitute a defense."

In the instant case a single paragraph purports to contain within itself a completely stated defense to the complaint. It supplies what was lacking in the Paraffine Companies Case.

Defendants' failure to state in express terms that they were pleading the matter as a separate defense does not require us to treat it differently. As the court said in the Paraffine Companies Case, "the question is not one of nomenclature, but of substance."

The pleading should be tested by the liberal rule of the statute that "in the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed, with a view to substantial justice between the parties," sec. 263.27, Stats. A pleading must be held good "though the allegations be in form uncertain, defective, and incomplete." Palmersheim v. Hertel, 179 Wis. 291, 299, 191 N.W. 567.

Sec. 263.13(2), Stats., provides that the answer must contain,

"A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition."

Sec. 263.16, Stats., provides that "the defendant may set forth, by answer, all defenses . . . he has . . . ; they must be separately stated." Neither section requires that the separate defenses be labeled as such. The matter of designation or the lack of it was not considered important in Kipp v. Gates, 126 Wis. 566, 105 N.W. 947, where a demurrer was interposed to a portion of an answer alleged "as a further defense," and the court said the expression "obviously means a separate and additional defense."

Sec. 263.14(2), Stats., requires that a counterclaim must be pleaded "as such;" that it must be so denominated. Voechting v. Grau, 55 Wis. 312, 13 N.W. 230. It seems to me to be significant that when the legislature deemed it necessary to require a label upon a pleading it did so in clear language. No such direction is contained in either sec. 263.13 or sec. 263.16.

Under the circumstances here presented we should treat plaintiff's motion as a demurrer to paragraph 6 of the answer and deny their motion to dismiss the appeal.

I am authorized to say that Mr. Justice CURRIE and Mr. Justice STEINLE concur in this dissent.

Summaries of

Bolick v. Gallagher

Supreme Court of Wisconsin
Mar 2, 1954
63 N.W.2d 93 (Wis. 1954)
Case details for

Bolick v. Gallagher

Case Details

Full title:BOLICK, Respondent, vs. GALLAGHER and others, Appellants

Court:Supreme Court of Wisconsin

Date published: Mar 2, 1954


63 N.W.2d 93 (Wis. 1954)
63 N.W.2d 93

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