Ainsworth v. Berg

• Decision Date: 16 November 1948
• Citation: 34 N.W.2d 790,253 Wis. 438
• Parties: AINSWORTH et al. v. BERG et al.
• Court: Wisconsin Supreme Court

253 Wis. 438

34 N.W.2d 790

AINSWORTH et al.

v.BERG et al.

Supreme Court of Wisconsin.

Nov. 16, 1948.

Appeal from a judgment of the Circuit Court for Marathon County; Gerald J. Boileau, Judge.

Reversed in part.

Action by plaintiffs Clarence Ainsworth and his employer, the Copps Company, to recover damages for personal injuries sustained by Ainsworth and property damage to the truck of the Copps Company, when it collided with the automobile of the defendant Edwin Berg. The defendant Farmers Mutual Automobile Insurance Company had issued its policy of public liability insurance upon the automobile of Edwin Berg. The Hardware Mutual Casualty Company, which carried a policy of insurance on the Copps truck, and Orville Rogers, driver of the Copps truck, were impleaded as parties defendant. Judgment was entered for the plaintiffs against the defendants Berg and his insurance carrier, dismissing so much of the cross-complaint of Berg and Farmers Mutual against Orville Rogers and the Hardware Mutual as was based upon the personal injuries. Edwin Berg and Farmers Mutual Automobile Insurance Company appeal from those portions of the judgment dismissing their cross-complaint against the impleaded defendants for contribution. Genrich & Terwilliger, of Wausau (Emil A. Wakeen, of Wausau, of counsel), for appellants.

Fisher, Reinholdt & Peickert and Robert A. Fisher, all of Stevens Point, for respondents.

HUGHES, Justice.

On August 17, 1945, Clarence Ainsworth, while riding in a truck owned by the Copps Company and driven by Orville Rogers, was injured in an accident when the truck collided with a vehicle driven by the appellant Edwin Berg. At the time of the accident both Orville Rogers and Clarence Ainsworth were employees of the Copps Company, and the truck was being operated on business of the Copps Company. The Hardware Mutual Casualty Company carried workmen's compensation insurance for the Copps Company as well as collision and public liability insurance on its vehicle.

The Farmers Mutual Automobile Insurance Company is the insurer of Edwin Berg on an automobile policy.

The Hardware Mutual paid collision damage to the Copps Company on its truck, and made compensation payments to Clarence Ainsworth.

On May 1, 1947 the Hardware Mutual entered into an agreement with Clarence Ainsworth whereby it assigned its subrogation claims to him with a stipulation that he would share any benefits derived in the third party action against Edwin Berg. On the same date it entered into a like agreement with the Copps Company, authorizing it to sue for its damages to the truck under an arrangement whereby the Hardware Mutual would be reimbursed proportionately on the collision payment made theretofore by it, and further stipulating that no settlement should be made unless first approved by the Hardware Mutual.

Action was commenced by Clarence Ainsworth and the Copps Company against Edwin Berg and the Farmers Mutual for recovery by Clarence Ainsworth of damages for his personal injury and by the Copps Company for damage to its vehicle and cargo. The summons and complaint were served on Edwin Berg on August 12, 1947 and on Farmers Mutual on August 13, 1947.

On August 27, 1947, upon the application of the defendants Edwin Berg and Farmers Mutual, based upon the affidavit of one of their attorneys dated August 27, an order to show cause why Rogers and the Hardware Mutual should not be impleaded in the action for purposes of contribution, was signed by a court commissioner and made returnable before the circuit court on September 13, 1947. No other notice had been served upon Orville Rogers or the Hardware Mutual, and no action had been commenced against them by reason of said accident prior to the service of the affidavit and order to show cause. The trial court ordered the respondents impleaded for purposes of contribution.

On September 16, 1947 plaintiffs served an amended summons and complaint upon appellants and respondents. The case was tried to a jury and both drivers were found to be guilty of negligence which contributed to cause the damages of Clarence Ainsworth and the Coops Company. On motions after verdict the trial court ordered the entry of judgment in favor of the plaintiffs against the defendants Edwin Berg and the Farmers Mutual, and dismissed the appellants' cross-complaint against Orville Rogers and the Hardware Mutual for contribution.

In so doing, the trial court relied upon Palmer v. Autoist Mut. Ins. Co., 1940, 234 Wis. 287, 289, 291 N.W. 364. That was an action brought by Palmer, as liquidator of the Builders and Manufacturers Mutual Casualty Company, against the Autoist Mutual Insurance Company for contribution toward damages paid by the Builders and Manufacturers Mutual. The payment had been made by the Builders and Manufacturers Mutual on a judgment entered against it in Minnesota in an action by one Fagerborg for personal injuries sustained in a collision in Wisconsin between two trucks, one owned by Berend Trux, Inc., on which the Builders and Manufacturers Mutual had issued its policy, the other owned by Wakershauser, on which the Autoist Mutual had issued its policy. The suit in Wisconsin was for contribution, and on a motion for summary judgment the affidavits set forth that in the Minnesota action the Autoist Mutual and its assured had not been made parties, nor had they been served with any notice by Fagerborg. The trial court held that since the two years had elapsed without notice and before the commencement of the suit for...