Barteck v. Rotter
| Decision Date | 04 December 1928 |
| Parties | BARTECK v. ROTTER ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Milwaukee County; James Wickham, Judge. Affirmed.
Action by Albert Barteck against Charles Rotter and the Interstate Exchange, begun November 12, 1926, to recover for injuries sustained when the automobile in which the plaintiff was riding was struck by the automobile driven by the defendant Rotter, who was insured by the Interstate Exchange. From a judgment for the plaintiff against both defendants, entered January 28, 1928, both appealed.Schoetz, Williams & Gandrey and Eugene L. McIntyre, all of Milwaukee, for appellants.
L. A. Schweichler, of Milwaukee, for respondent.
This case involves the same state of facts as that involved in Hefele v. Rotter (Wis.) 222 N. W. 220, decided herewith. The plaintiff, Barteck, was a passenger in the automobile driven by Hefele, the plaintiff in that other action. The two cases were tried together. So far as the questions relating to the negligence of the plaintiff and the defendant Rotter are concerned, this case is ruled by that decision.
The case presents the further question whether the insurance carrier of the defendant Rotter, the Interstate Exchange, could be made a party to the action against defendant Rotter, under the rule of Ducommun v. Strong, 193 Wis. 179, 212 N. W. 289, 214 N. W. 616.
[1][2] The members of the court participating in the decision of this case are equally divided upon the question whether section 85.25 of the Statutes gives the plaintiff the right to maintain this action against both the defendant and his insurance carrier, where the carrier's liability is created by an indemnity policy, as distinguished from one which imposes direct liability. Mr. Justice ROSENBERRY, Mr. Justice ESCHWEILER, and Mr. Justice OWEN are of the opinion that the judgment against the Interstate Exchange should be reversed. Mr. Justice DOERFLER, Mr. Justice CROWNHART, and the writer are of the opinion that this judgment should be affirmed. Under the established rule it follows that the judgment against the insurance carrier is affirmed. Fox River Paper Co. v. Railroad Commission, 189 Wis. 626, 628, 208 N. W. 266.
Judgment affirmed.
VINJE, C. J., took no part.
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