Baker v. Tormey

• Decision Date: 06 December 1932
• Citation: 209 Wis. 627,245 N.W. 652
• Parties: BAKER v. TORMEY ET AL.
• Court: Wisconsin Supreme Court

209 Wis. 627

245 N.W. 652

BAKER

v.TORMEY ET AL.

Supreme Court of Wisconsin.

Dec. 6, 1932.

Appeal from a judgment of the Circuit Court for Rock County; George Grimm, Circuit Judge.

Action by Donald H. Baker against Weston Tormey, the Georgia Casualty Company, and another. From a judgment for plaintiff, defendants named appeal.--[By Editorial Staff.]

Reversed, with directions.

This action was commenced on or about September 12, 1929, to recover damages sustained by the plaintiff as a result of his being hit by a car driven by defendant Tegt. The action was originally brought against Janesville Traction Company, Wisconsin Power & Light Company, Thomas W. Tormey, Jr., Arthur Tegt, and Georgia Casualty Company. The traction and the power and light companies demurred to the complaint, and their demurrers were sustained by this court on May 12, 1931. Baker v. Janesville Traction Co. et al., 204 Wis. 452, 234 N. W. 912. Thereafter, on December 14, 1931, the action proceeded to trial against the other defendants. Both defendants Thomas W. Tormey, Jr., and Georgia Casualty Company filed pleas in abatement based upon the “no action clause” contained in the policy issued by the casualty company to Thomas W. Tormey, Sr. The court overruled such pleas in abatement, stating that he did so with the understanding that the insurance company was not to be referred to in any way during the trial. After several witnesses had been sworn, it appeared without question that the Tormey car, which, it was asserted, concurred in causing plaintiff's injuries, was not driven by defendant Thomas W. Tormey, Jr., but was in fact driven by his brother Weston Tormey, who had not been sued. Over the objection of Weston Tormey, he was then and there substituted as a party defendant for Thomas W. Tormey, Jr., and the verified answer of Thomas W. Tormey, Jr., was permitted to stand as the answer of Weston Tormey, although the court, upon motion, permitted Weston Tormey to amend and answer as follows:

“Weston Tormey, in view of the ruling of the court that his name be substituted in place of that of Thomas W. Tormey, Jr. and that Weston Tormey be made a party to the above entitled action, preserving all of his objections to said ruling and without any waiver thereof, requests that the court allow him to interpose as an additional defense the following allegations:

That more than two years have elapsed since the event causing the personal injury complained of by plaintiff occurred on April 11, 1929. That no action was ever begun by plaintiff against Weston Tormey and no summons and complaint served upon him within two years after April 11, 1929. That no notice as required by Section 330.19 (5), Wis. Stats. 1929, has ever been served upon Weston Tormey in any manner whatsoever, although more than two years have expired since said event. Said Weston Tormey has never had served upon him any notice stating that plaintiff claimed any satisfaction from him for any damages which occurred to plaintiff.”

The trial then proceeded against Weston Tormey and the other defendants. Motions for nonsuit and a directed verdict were overruled and the case submitted to the jury on a special verdict, all questions of which were answered in favor of the plaintiff. After verdict defendants Tormey and Georgie Casualty Company made all necessary motions to preserve their rights, all of which were overruled. Other facts necessary to an understanding of the questions which control this decision will appear in the opinion. From a judgment entered February 27, 1932, against Weston Tormey, Arthur Tegt, and Georgia Casualty Company, defendants Tormey and Georgia Casualty Company appealed.Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellants.

Herman Mosher, of Milwaukee (W. B. Rubin, of Milwaukee, of counsel), for respondent.

NELSON, J.

In the view we take of this case only two questions require consideration:

1. Did the court err in refusing to sustain the plea in abatement interposed by Georgia Casualty Company and in entering judgment against it?

2. Did the court err in ignoring the defense of Weston Tormey based upon section 330.19 and in entering judgment against him?

Although the answers which this court must make to the questions for decision will fully dispose of the appeals, we deem it wise to review briefly the facts upon which the action is based.

On April 11, 1929, at about 5:30 p. m., the plaintiff was operating a street car on a single track running along Milton avenue in the city of Janesville. The terminal of the track was at the north city limits. The plaintiff testified that upon arriving at the terminal where a three-minute wait was ordinarily had, the plaintiff opened the north door on the east side of the car and attended to putting up the trolley on the north end of the car so as to bring it in contact with the power wire. He thereupon walked along the westerly side of the car to its south end for the purpose of pulling down the trolley on that end of the car. When he reached the southwest corner of the car, he saw an automobile approaching from the south, at a distance estimated by him to be about three hundred feet. He barely glanced that way and only casually observed the approaching automobile. He thereupon adjusted the trolley and walked toward the north end of the car and on the easterly side thereof. When he had gone ten to twenty feet from the south end of the car he heard the “screaming of brakes,” glanced over his shoulder, and then ran diagonally toward the east curb without taking a second look. When near the curb he gave a jump, but was hit by a car driven by defendant Tegt. It appeared without dispute that just prior to the accident the automobile driven by Weston Tormey was proceeding in a northerly direction; that it was approaching the street car just as the plaintiff was proceeding to the north end of the car after having adjusted the south trolley. The Tormey car slowed down and came to a stop within a few feet of the southerly end of the car. It did not touch the plaintiff or even come very near to him.

At the time the Tormey car was approaching the street car, defendant Tegt was driving his car behind the Tormey car at a distance of about twenty-five or thirty feet. When the Tormey car slowed down and stopped, defendant Tegt applied his foot brakes, which were entirely ineffective due to the fact that the pin where the brake rod ran into the equalizer was broken. Tegt thereupon pulled over toward the curb, applied his emergency brake, and attempted to run over the east curb, but did not succeed in so doing. His car struck the plaintiff two or three feet back of another car which was stopped about opposite the north front door of the street car. The plaintiff was caught between the Tegt car and the parked car.

During the month of August following, one of the occupants of the Tormey car told the plaintiff that Weston Tormey was driving the Tormey car at the time of the accident and gave him the name and address of Weston Tormey's father. Thereafter the plaintiff wrote to Weston Tormey at Madison, care Dr. Tormey, St. Mary's Hospital, requesting information as to whether the car was Weston's or his father's and as to whether insurance was carried, and, if so, in whose name it was carried. Thereafter action was commenced against Thomas W. Tormey, Jr., and the other defendants hereinbefore mentioned. Both the summons and the complaint list Thomas W. Tormey, Jr., as a defendant. The only person by the name of Tormey referred to in the complaint is Thomas W. Tormey, Jr. Service of the summons and complaint was made on Thomas W. Tormey, Jr., September 12, 1929, “by leaving a true copy of said summons and complaint at the usual place of abode of said Thomas W. Tormey, Jr., in the city of Madison, Dane county, Wisconsin, in the presence of Mrs. Thomas W. Tormey, who was and is one of the family of Thomas W. Tormey, Jr., to-wit: His mother.” Thomas W. Tormey, Jr., answered and thereby put in issue the allegations of the complaint as to negligence, speed, and the fact that Thomas W. Tormey, Jr., was operating the car. The trial of the case began on December 14, 1931, under the title of Donald H. Baker, Plaintiff, v. Thomas W. Tormey,...