Aspenleiter v. William Beaudoin & Sons, Inc.

• Citation: 64 Wis.2d 390,219 N.W.2d 310
• Decision Date: 28 June 1974
• Docket Number: No. 57,57
• Parties: Robert A. ASPENLEITER, Appellant, v. WILLIAM BEAUDOIN & SONS, INC., a domestic corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 310

219 N.W.2d 310

64 Wis.2d 390

Robert A. ASPENLEITER, Appellant, v. WILLIAM BEAUDOIN & SONS, INC., a domestic corporation, Respondent.

No. 57.

Supreme Court of Wisconsin.

June 28, 1974.

This is an action by the plaintiff, Robert A. Aspenleiter, against defendant, William Beaudoin & Sons, Inc., to recover for personal injuries sustained when a Milwaukee & Suburban Transport Corporation bus slid or skidded into a parked truck in which the plaintiff was seated. Plaintiff initially commenced an action against the impleaded defendants, Thomas E. Gaynor and Milwaukee & Suburban Transport Corporation. This action was tried to a jury and, on April 17, 1969, a verdict was returned finding no negligence on the part of the defendant transport company. Additionally, the jury determined that the plaintiff had incurred damages of $ 2,500 for past pain and suffering; $ 1,622.72 for past loss of earnings and $ 236 for past medical and hospital expenses. The jury also found the plaintiff had not incurred any permanent injury to his neck as a result of the bus collision. Upon motions after verdict, the trial court sustained the findings of the jury. Such findings, the trial court held, were properly supported by evidence to the effect that the cause of the loss of control of the defendant bus driver was an oily substance which had just previously been sprayed on the road surface by William Beaudoin & Sons, Inc., a Wisconsin corporation. Beaudoin was not joined in the prior action. The trial court also found that the jury's findings as to damages in general and the finding that the plaintiff had not sustained any permanent injury in particular were supported by the evidence. The plaintiff thereafter commenced the instant action against the defendant, William Beaudoin & Sons, Inc., for damages incurred as a result of the collision. Beaudoin answered the complaint, denied liability and impleaded the Milwaukee & Suburban Transport Corporation asking for contribution. The transport company then moved for summary judgment as to the third-party complaint on the grounds that the issue as to the transport company's negligence had been previously determined by a jury. The transport company's motion for summary judgment was granted. This judgment was not appealed.

Thereafter, William Beaudoin & Sons, Inc. moved the court for an order liquidating damages in the amount previously found by the jury in the prior action, $4,358.72. This motion was sustained and the court ordered that damages be so liquidated and that the issue at trial be limited solely to those of liability. From this order the plaintiff appeals.

Eisenberg & Kletzke, Milwaukee, for appellant.

Simarski, Goodrich, Brennan & Stack, Milwaukee, for respondent.

HANLEY, Justice.

The issue presented on this appeal is whether or not a non-party defendant can invoke a prior jury determination of damages sustained as res judicata as to that issue in a subsequent action. However, a preliminary question arises as to whether the order of the circuit court was appealable.

While the issue of appealability was not raised by the parties herein, such must be raised by this court on its own motion and, if said order is determined to be non-appealable, the appeal must be dismissed. United States v. Burczyk (1972), 54 Wis.2d 67, 194 N.W.2d 608. When an order appealed from is non-appealable, the Supreme Court is without jurisdiction to entertain the appeal...