Bolick v. Gallagher

63 N.W.2d 93, 266 Wis. 208, 1954 Wisc. LEXIS 347

• Court: Wisconsin Supreme Court
• Decided: March 2, 1954
• Status: Published

Opinions

Fairchild, C. J.

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 appeal-able 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 bn 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.