HALLOWS, C. J.
Normally, the proper venue of the first cause of action is Price county where the fall on the sidewalk occurred and all the defendants resided, sec. 261.01 (12), Stats.; and the proper venue for the action for malpractice against the Wausau Memorial Hospital is Marathon county, the principal place of business of the hospital, sec. 261.01 (6). Consequently, if sec. 263.04
The appellant argues the venue statute is not applicable to this joinder because the accident tort-feasors and the malpractice tort-feasor have a joint liability for the total indivisible damages of the injured plaintiff and this requires a joint trial against all the tort-feasors to avoid multiple trials and inconsistent verdicts. We think not.
The joinder of causes of action in this state is statutory and governed by sec. 263.04, Stats. As stated in Caygill v. Ipsen (1965), 27 Wis.2d 578, 135 N.W.2d 284,
In the instant case we are not dealing with such joint tort-feasors but successive tort-feasors whose negligence did not combine concurrently but sequentially in time to cause injury. The present case is one where a subsequent tort-feasor aggravates a pre-existing injury caused by the negligence of a prior tort-feasor.
It is essential to distinguish between joinder of causes of action and joinder of joint defendants in one cause of action. We point out tort-feasors do not become joint tort-feasors because their liability may be co-extensive and in that sense there is joint liability. It is quite true an original tort-feasor may also be liable for the malpractice of a subsequent tort-feasor doctor for the total damages suffered by the injured person. But this doctrine is concerned solely with the scope of the liability of the original tort-feasor and does not involve or necessitate a joinder of causes of action or a joinder of defendants. The principle that a tort-feasor is liable for the consequences of negligence of a physician whose treatment aggravated the original injury is based upon the reasoning "that the additional harm is either (1) a part of the original injury, (2) the natural and probable consequence of the tort-feasor's original negligence, or
The rule is broadly stated in Restatement, Torts 2d, p. 496, sec. 457, as follows:
"If the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner."
In the comment thereto it is plain the rule applies to additional harm from hospital or medical treatment and seems to be put on the basis of public policy to determine where the line of causation should end. See also: Restatement, Torts 2d, p. 478, sec. 447, Negligence of Intervening Acts. We think the rule applies to hospital care as well as medical care and covers this case.
This doctrine was adopted by Wisconsin in Selleck v. Janesville (1898), 100 Wis. 157, 75 N. W. 975, 41 L. R. A. 563, a defective sidewalk case, and the court said that if the injured person used ordinary care in selecting his doctor he was not responsible for the doctor's mistake in treating his injury but the original tort-feasor was. The rule of this case was followed on the second appeal in Selleck v. Janesville (1899), 104 Wis. 570, 80 N. W. 944, 47 L. R. A. 691, and applied in Pawlak v. Hayes (1916), 162 Wis. 503, 156 N. W. 464, where an employer was held liable for the malpractice of a physician when the physician's negligence occurred within ninety days after the original injury to the employee and resulted in an aggravation thereof. The theory of this liability was based on foreseeability as a basis for causation. This ground for enlarging the scope of the original tort-feasor's
Doctors were also liable independently for the results of their own negligence and the doctrine was applied to give them the benefit of any general payments made by the original tort-feasor to the injured party. In Hooyman v. Reeve (1919), 168 Wis. 420, 170 N. W. 282, in a suit against the doctor, the court construed the release given by the injured employee to the employer to be broad enough to include the damage done by the doctor for which the original tort-feasor was liable. Likewise in Retelle v. Sullivan (1927), 191 Wis. 576, 211 N. W. 756, the release given by the injured party to the original tort-feasor was found broad enough to cover the element of damage due to the doctor's negligence.
None of these cases involved the joinder of the doctor with the original tort-feasor either in one cause of action or the joinder of separate causes of action. The original tort-feasor and the subsequent negligent doctor, even though his negligence aggravates the original injury, are not joint tort-feasors although they may have a joint liability in part; such joint liability does not give rise to any right of contribution. In Fisher v. Milwaukee Electric Railway & Light Co. (1920), 173 Wis. 57, 180 N. W. 269, the original tort-feasor who was sued for the damages including the aggravation done by the malpractice of the doctor was allowed to implead the doctor on a cross complaint on the theory of subrogation to the extent the plaintiff had a cause of action against the doctor but not on the theory of contribution. This case has been cited with approval in Chicago & N. W. Ry. Co. v. Nye Schneider Fowler Co. (1922), 260 U.S. 35, 43 Sup. Ct. 55, 67 L. Ed. 115.
Because the defendants in the first cause of action are liable for the aggravation by the Wausau Hospital and so is the hospital, the aggravation is a common question to both causes of action and they could be united except for sec. 263.04, Stats. But it is argued that when the damages resulting from two independent torts are indivisible the separate causes of action against the two tort-feasors may be joined. This proposition was advanced in Caygill v. Ipsen, supra, and in Fitzwilliams v. O'Shaughnessy (1968), 40 Wis.2d 123, 161 N.W.2d 242. But these cases hold that two separate causes of action, one against the original tort-feasor, the other against the subsequent tort-feasor, resulting in an injury and aggravation thereof cannot be joined together in violation of sec. 263.04. Caygill involved two automobiles with a sufficient time-lag between the occurrence to give rise under the grouping-of-units test to two separate causes of action. The Fitzwilliams Case involved an automobile accident and a subsequent ambulance accident and it was held the plaintiff had two separate causes of
The appellant also relies on Olson v. Siordia (1964), 25 Wis.2d 274, 130 N.W.2d 827, but this case does no more than point out in the footnote a substantive rule of law in respect to the original tort-feasor's liability; it has nothing to do with joinder of actions. Unfortunately, in Heims v. Hanke (1958), 5 Wis.2d 465, 93 N.W.2d 455, the court following Bolick stated that when an injury was aggravated by the malpractice and the damages were inseparable the original tort-feasor and the successive tort-feasor were both liable for the entire damage. This is the first case vocalizing the concept of the impossibility of separating damages caused by separate tort-feasors being a basis of joint liability. The transition from a single injury, even though aggravated, to the inseparability of damages was made without notice. The language of this case to the effect the doctor's liability extends to damage resulting from the initial injury falls with our withdrawal of similar language in Bolick.
We think the idea of the inseparability of damages is an importation from other states and is foreign to our jurisprudence, at least since 1931 when our comparative negligence statute was enacted, sec. 895.045, Stats. We see no more difficulty in allocating damages to the respective negligence of two tort-feasors than we do in allocating the contribution of negligence of two tort-feasors to the injury and damages. While the problems are not identical, they are similar. It is quite true in some cases the proof is difficult but the law does not demand
We are not unmindful of the language in Prosser, Law of Torts (3d ed.), Joinder of Defendants, p. 266, sec. 44, "Thus an earlier tortfeasor may be liable for the damages inflicted by a later one, while the later wrongdoer is not liable for the earlier damage; and yet there are obvious reasons of convenience for the joinder of both defendants in a single action." There is an observation in Caygill in a similar vein which refers to a single cause of action, but it should be a single action or suit. In sum, unless two tort-feasors can be considered as being proper defendants in a single cause of action, the respective causes of action against them cannot be joined contrary to sec. 263.04, Stats., and there exists no distinction or special rule involving the malpractice of doctors aggravating the original injury. This is not a case of a single cause of action against all defendants which would be governed by sec. 261.01 (12).
By the Court.—Order affirmed.
"Where independent torts result in separate injuries, each tort-feasor is severably liable for his own torts, but it is generally held that, where independent torts concur to inflict a single injury, each tort-feasor is liable for the entire damage. . . .
"Single, indivisible injury. While there is language in some decisions to the effect that concert of action is necessary, at least in the case of willful torts, as a general rule where the separate and independent acts of several tort-feasors, especially where such acts are negligent, combine to produce directly a single injury, each is responsible for the entire result, even though his act alone, without the concurrence of the other tort, would not have caused the injury; and it is not necessary that they be acting together or in concert if their concurring torts occasion the injury. Where the independent tortious acts of two persons combine to produce an injury, each tort-feasor is liable for the entire damage, not on the ground that he is liable for the other tort-feasor's act, but because his own act is regarded as the proximate cause of the entire injury. The rule does not apply, however, where the independent act of one party does not contribute to the injury. . . ."