Ressequie vs. Byers. There COLE, C. J. There is, undoubtedly, high authority which supports the ruling of the learned circuit court. are cases which distinctly hold that a judgment in a justice's court in favor of a physician or surgeon for professional services is a bar to any action by the defendant therein against such physician or surgeon for malpractice in rendering such services. Gates v. Preston, 41 N. Y., 113; Blair v. Bartlett, 75 N. Y., 150; Bellinger v. Craigue, 31 Barb. S. C., 534. There is, however, some conflict of authority on this subject; and as the question is now presented to this court for the first time, we feel at liberty to adopt a rule which seems to us founded on sound principle, and most in accord with reason and convenience in practice. The courts in New York in effect say that the question of the proper care and skill on the part of the physician or surgeon is one necessarily involved and adjudicated upon in an action by him to recover compensation for his services rendered; therefore a judgment in his favor should estop the parties to such suit from ever after questioning that fact in any other action. And the courts of that state even apply the rule to a case where, though the defendant at first appeared in the justice's court and put in an answer, yet he afterwards withdrew it, and did not contest the plaintiff's claim; and the judgment was held to be a bar to a subsequent action by him against the physician for malpractice. Blair v. Bartlett, supra. But the doctrine of the New York courts has not escaped criticism. Mr. Bigelow, in his learned work on Estoppel (2d ed.), p. 98 et seq., reviews these decisions, as well as the adjudications of other courts in strictly analogous cases, and questions the soundness of the New York rule, "unless the distinction taken in New Hampshire, between a judgment by confession and one by default or on trial without alleging the defense, be correct." Page 107. "It may sometimes be difficult to draw a line of distinction between a judgment which will operate as a bar to an action for a specific claim, and one which leaves Ressequie vs. Byers. the claim outstanding to be enforced by a cross-action" (CHURCH, C. J., in Dunham v. Bower, 77 N. Y., 79); but where, as in this case, the defendant makes default in a justice's court, and does not even attempt to contest the value of the services rendered, or raise the question of their proper performance, it is more difficult to perceive any solid ground for holding that he is concluded from showing, in another action, that the plaintiff in that case was guilty of negligence in his professional treatment. It was certainly not necessary, in order to entitle the plaintiff in the justice's court to a judgment, that he should prove he was not guilty of any negligence. "It was enough to show simply that he performed the services at the defendant's request, and their value, and the fact that the amount was due." HAGANS, J., Sykes v. Bonner, 1 Cin. Sup. Ct. Rep., 464. It is very doubtful whether the defendant, in the action before the justice, under his answer, could have shown that the plaintiff was guilty of malpractice (Crawford v. Earl, 38 Wis., 312); certainly, he did not attempt to raise that issue, or litigate any such question. And if this action is barred by the recovery in the justice's court, it is because the question as to the care and skill of the defendant herein was involved by implication in that suit, not because any such fact or issue was actually litigated between the parties. This court has said that a judgment is conclusive upon the parties thereto only in respect to the grounds covered by it, and the law and facts necessary to uphold it. Hardy v. Mills, 35 Wis., 141; Lathrop v. Knapp, 37 Wis., 314. According to this rule of law it is apparent the supplemental answer states no defense; for the issue in this action was not necessarily involved in the justice's suit, and the plaintiff may maintain it notwithstanding the defendant recovered for his services in that court. The plaintiff's claim for damages resulting from malpractice constitutes a separate and independent cause of action, which he can enforce without disturb Ressequie vs. Byers. ing any matter litigated in that case. He was not compelled to make the defense before the justice that the defendant's services were of no value, in order to save his rights. He had his election either to recoup his damages pro tanto in the jus tice's court or go for his entire claim in this. It seems to us that this is the better and more convenient rule to lay down upon the subject. If the plaintiff were compelled to make his defense in the justice's court, that the professional services were of no value, and that he had been injured by the defendant's negligence, then it would follow that he must either split up his demand so that there might be two suits instead of one upon it, or content himself with merely defeating the claim for services, or limit his damages to $200, the extent of the jurisdiction of the justice. We are not inclined to adopt a rule which would lead to any such inconvenient consequences. We say, in the language of Mr. Bigelow: "Every cause of action carries with it the right to put it into judgment; and that there is a separate and independent cause of action given. to each party results necessarily from the fact that either party may sue the other for a breach. No suit can be maintained except upon a legal ground of action. Now, as one cause of action cannot in itself alone, when merged in judgment, carry another and independent cause of action with it, it is difficult to understand how a judgment for the plaintiff, without plea, can extinguish a counter-right of action by the defendant, however closely connected the two claims may be. Every one has the right to try his own case." Bigelow on Estoppel, 104. The New York authorities are more or less in conflict with the doctrine laid down or recognized in the following cases: Bodurtha v. Phelon, 13 Gray, 413; O'Connor v. Varney, 10 Gray, 231; Bascom v. Manning, 52 N. H., 132; Barker v. Cleveland, 19 Mich., 230; Mondel v. Steel, 8 Mees. & W., 858; Rigge v. Burbidge, 15 Mees. & W., 598; Davis v. Hedges, L. R., 6 Q. B., 687. It is needless to remark that if the plaintiff in this suit had Davis vs. The Town of Fulton. set up the defense of malpractice in the action before the justice, an adjudication upon that issue would then have been a bar. The case then would come within a very familiar principle. Howell v. Goodrich, 69 Ill., 556. But upon the facts stated in the supplemental answer we are inclined to hold that the recovery in the justice's court is no bar. The question is very fully examined in the authorities to which we have referred, and further discussion of it seems unnecessary. By the Court. The order of the circuit court, overruling the demurrer, is reversed, and the cause remanded for further proceedings according to law. CASSODAY, J., took no part. DAVIS VS. THE TOWN OF FULTON. September 1-September 27, 1881. VILLAGE PLAT. (1) Record of plat as evidence. (2) Owner's certificate, how to be written on plat. HIGHWAY. (3) Proof of its existence. REVERSAL OF JUDGMENT: (4) For immaterial error. 1. The fact that the record of a village plat and the owner's certificate, required by the statute, is upon two papers, attached together, is not sufficient proof that the original was so made. [2. Even under the revisions of 1849 and 1858, which required such a certificate to be indorsed upon the plat, quære whether the word "indorse should be strictly construed, as requiring the certificate to be written upon the back of the plat. But it was not necessary to determine that question in this case.] 3. Proof that a parcel of ground had been used as a highway for twenty years, and that work had been done thereon under the direction of the overseer of highways, held sufficient to show that the same was a highway, which the town was bound to keep in repair. 4. The improper rejection of evidence held not sufficient ground for reversal, where similar evidence was in fact given by several witnesses for the appellant, and there was no contradictory evidence and no reason to think that the verdict could have been affected by the error. VOL. LII-42 Davis vs. The Town of Fulton. APPEAL from the Circuit Court for Rock County. The case is thus stated by Mr. Justice TAYLOR: "This action was brought to recover damages for an injury sustained by plaintiff from falling into a ditch in what is called Swift street, in the village of Edgerton, in the town of Fulton. The evidence shows that Swift street extends north from Front street, which runs east and west; that the ditch in which the respondent was injured crosses Front street, and extends north along Swift street, east of the center of said street, for several rods, and then leaves the street on the east side. This ditch is made to carry off the water, and is covered with plank across Front street, and north on Swift street a short distance, and then is left open for the remainder of its length on Swift street. On the east side of Swift street, and adjoining Front street, there is a block of stores, and the post-office is in one of them; but whether these stores and post-office front on Front street or Swift street does not very clearly appear from the evidence; but in the basement of the block there are a bakery and a confectionery shop opening on Swift street. There is also a meat market across the street. Twelve or thirteen rods north of the north end of the covered part of the ditch there is a livery stable, known as Humphrey's stable, on the east side of Swift street. There was no travel with teams on the east side of the ditch on Swift street, and no sidewalk on that side of the street north of the buildings near Front street. There was a sidewalk on the west side of the street, running north forty rods. The street was traveled with teams, and had been for twenty or twenty-five years, as much as any street in the village. People traveling on foot, going north on Swift street, generally cross over to the west side and take the sidewalk, or else the middle of the street west of the covered ditch. On the west side of Swift street, and near Front street, there is a block of buildings, a hotel, barn, and three or four dwellings. At the end of the covering the ditch was four feet deep and about five feet wide. There was no |