Stenbohm v. Brown-Corliss Engine Co.

• Citation: 137 Wis. 564,119 N.W. 308
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 26 January 1909
• Parties: STENBOHM v. BROWN-CORLISS ENGINE CO. ET AL.

137 Wis. 564

119 N.W. 308

STENBOHM

v.BROWN-CORLISS ENGINE CO. ET AL.

Supreme Court of Wisconsin.

Jan. 26, 1909.

Appeal from Circuit Court, Racine County; E. B. Belden, Judge.

Action by Richard Stenbohm against the Brown-Corliss Engine Company and C. J. Richards, receiver. From an order said receiver appeals. Affirmed.

This action was brought to recover damages for a personal injury sustained on April 10, 1905, and on January 15, 1907, judgment was rendered in plaintiff's favor for $10,099. 58. After the action was commenced, and on November 14, 1905, the defendant was adjudicated a bankrupt, and a receiver in bankruptcy was duly appointed. At the time of plaintiff's injury the defendant held a liability policy of insurance which indemnified the holder against loss by reason of injuries suffered by an employé, in a sum not exceeding $5,000 for any one accident, and provided that the company would, at its own cost and expense, assume the defense of any action brought on account of such injury. Among other things the policy provided that it indemnified the holder “against loss from common-law or statutory liability for damages on account of bodily injuries, fatal or nonfatal, accidentally suffered within the period of this policy by any employé or employés of the assured while on duty at the places and in the occupations mentioned in the schedule hereinafter given.” The policy further provided: “No action shall lie against the company as respects any loss under this policy, unless it shall be brought by the assured himself, to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment within sixty days from the date of such judgment, and after trial of the issue.” It is conceded by the parties that the claim of the plaintiff could not be proved in the bankruptcy court before judgment thereon was obtained in the state court, and that, at the time of the rendition of the judgment, the time wihin which it might be filed as a claim in the bankruptcy proceedings had expired. Shortly after the rendition of the judgment in plaintiff's favor an execution was issued thereon, and was returned unsatisfied, whereupon supplementary proceedings were instituted and a receiver of said defendant as judgment debtor was appointed by a circuit court commissioner. On February 9, 1907, such receiver filed a petition in the bankruptcy court, praying that the trustee in bankruptcy should be ordered to assign and turn over to such receiver the aforesaid indemnity policy, which petition was granted. Thereafter demand for payment was made upon the insurer by the receiver, which demand was not complied with. On February 19th the receiver filed a petition in the circuit court, alleging, among other things, that the plaintiff was ready and willing to compromise and settle his claim for $5,000, and would accept the receiver's promissory note for such sum in settlement and satisfaction of the judgment. Upon the filing of such petition the court made an ex parte order directing the receiver to execute a demand, promissory, judgment note to the plaintiff in settlement of such judgment and authorizing the receiver to commence suit on the policy of insurance. The note was executed and delivered to plaintiff, and he satisfied his judgment, whereupon the receiver commenced an action against the insurance company to collect the amount alleged to be due upon the policy. After such action was commenced the Brown-Corliss Engine Company moved for an order vacating and setting aside the ex parte order authorizing the settlement, and the execution of the promissory note, and the commencement of the action against the insurance company. This motion was granted, and from the order granting the same the receiver prosecutes this appeal. The error assigned is that the court erred in making such order.Charles A. Vilas (Robert N. McMynn, of counsel), for appellant.

Rubin & Zabel (Wallace Ingalls and W. B. Rubin, of counsel), for respo...