Greene v. Waters
| Decision Date | 06 November 1951 |
| Citation | 260 Wis. 40,49 N.W.2d 919 |
| Parties | GREENE, v. WATERS. |
| Court | Wisconsin Supreme Court |
Action by the plaintiff, Ruth Norquist Greene, to recover damages for personal injuries sustained by her as the result of alleged negligent medical treatment administered by the defendant, Dr. Don Waters. Defendant appeals from an order entered March 14, 1951, denying his motion for summary judgment. The facts will be stated in the opinion.
Krueger & Fulmer, Wausau, for appellant.
D. V. W. Beckwith, Madison, for respondent.
On July 12, 1948, plaintiff was injured in an automobile accident near Wisconsin Rapids. At the time of the accident she was a guest passenger in an automobile owned by one J. E. Parkin, which was driven by one Norine Parkin. Following the accident the plaintiff was taken to a hospital in Wisconsin Rapids where she was treated by the defendant for her injuries received in the automobile accident. Plaintiff brought an action against Norine Parkin and Farmers Mutual Automobile Insurance Company, the insurer of the Parkin car. On October 18, 1949, a stipulation was entered into in open court that said action be compromised and settled by payment by the insurance company to the plaintiff of the sum of $6,400. Said stipulation contained the following paragraph: 'It is however distinctly agreed and understood that there be and hereby are excepted from such settlement any claims or causes of action that the plaintiff may have against any firm, person or parties other than Norine Parkin, J. E. Parkin and Farmers Mutual Automobile Insurance Company, or any or either of them, on account or in consequence of the said accident or any injuries or injurious effect to said plaintiff as a result of said accident.'
Pursuant to the stipulation the plaintiff was paid the sum of $6,400 upon signing a release and an agreement. The release was in the usual form, except that it contained the following paragraph: 'It is, however, understood (a) that I do not release from liability but expressly hereby reserve unto myself, my heirs, legal representatives and assigns, any and every claim or cause of action that I now have or may hereafter have against, any person, firm or corporation other than said Norine Parkin, J. E. Parkin, and Farmers Mutual Automobile Insurance Company, or any of them, or their respective heirs, legal representatives or assigns, on account or in consequence of said accident or any bodily or other injury sustained by me as a result of said accident or on account or in consequence of any malpractice or improper treatment on the part of any physician or surgeon in or about or with respect to any such bodily injury, and (b) that any recovery by me, or my heirs, legal representatives or assigns, for, upon, or with respect to any such claim or cause of action so reserved by me shall be distributed in accordance with an agreement in writing made and entered into by and between the undersigned and said Norine Parkin, J. E. Parkin and Farmers Mutual Automobile Insurance Company, on, and dated, the 18th day of October, 1949.'
The agreement provided that if the plaintiff recovered from any other person, firm or corporation because of injuries sustained by her in the automobile accident, or on account of failure of any physician or surgeon to treat her properly for injuries sustained by her in the automobile accident, plaintiff would retain any amount recovered up to the sum of $4,600 and that any amount recovered above that sum would be paid to the Farmers Mutual Automobile Insurance Company, until it had received the sum it had paid to plaintiff.
The present action was commenced after said settlement had been completed. The answer denied that the defendant was negligent in his treatment of the plaintiff, and as a further defense alleged that by reason of the stipulation, release and agreement, the insurance company was subrogated to all of the rights, if any, which the plaintiff may have had, and that by reason thereof there is a defect in the parties plaintiff in this action.
Upon his motion for summary judgment the defendant filed an affidavit setting forth the stipulation, release, and agreement, and in opposition thereto the plaintiff, by affidavit of her attorney, set forth that prior to the commencement of the action the insurance company had assigned all claims and causes of action which it might have against the defendant by way of subrogation or otherwise.
The defendant contends upon this appeal that a complete release to the primary tort-feasor releases the physician alleged to have caused an aggravation of the injuries resulting from the tort by alleged negligent treatment; that the collateral agreement indicates some amount was paid to plaintiff because of the claimed aggravation of damages by the physician; and that the assignment conclusively indicates payment of the claimed aggravation of damages was made on behalf of the first tort-feasor. That would be true in Wisconsin where no reservation is made in the release. Fisher v. Milwaukee Electric R. & Light Co., 173 Wis. 57, 180 N.W. 269; Hooyman v. Reeve, 168 Wis. 420, 170 N.W. 282; Retelle v. Sullivan, 191 Wis. 576, 211 N.W. 756, 50 A.L.R. 1106.
In case of a complete release the plaintiff would have no claim against the physician. As they are not joint tort-feasors the automobile driver would have no claim against the physician for contribution, but he would have a claim by way of subrogation to the plaintiff's rights for that part of the damages which are...
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Konkel v. Acuity
...Hartley v. St. Francis Hosp., 24 Wis.2d 396, 129 N.W.2d 235 (1964), modified by 24 Wis.2d 396, 130 N.W.2d 1 (1964); Greene v. Waters, 260 Wis. 40, 49 N.W.2d 919 (1951); Noll v. Nugent, 214 Wis. 204, 252 N.W. 574 (1934); Retelle v. Sullivan, 191 Wis. 576, 211 N.W. 756 (1927); Fisher v. Milwa......
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Kemper National P & C Companies v. Smith
...& Associates Dental Laboratory, Inc. v. St. Francis Hospital, Inc., 569 P.2d 506 (Okla.Ct.App.1976) (contribution); Greene v. Waters, 260 Wis. 40, 49 N.W.2d 919 (1951) (subrogation). But see Transcon Lines v. Barnes, 17 Ariz.App. 428, 498 P.2d 502 (1972) and Wilson v. Krasnoff, 560 A.2d 335......
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Krenz v. Medical Protective Co. of Fort Wayne, Indiana
...held it was not covered by the release, nevertheless, the release rule became firmly embedded in our jurisprudence. In Greene v. Waters (1951), 260 Wis. 40, 49 N.W.2d 919, the release contained a reservation of rights and thus a full release had not been given and the conclusive presumption......
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Gulf Ins. Co. v. Cottone, 25,354.
...cases relied on by Gulf. We find them unpersuasive because they do not involve concurrent tortfeasors. For example, Greene v. Waters, 260 Wis. 40, 49 N.W.2d 919 (1951), involved a claim by the injured party, a passenger in the insured's vehicle, id. at 920, who was allowed to seek equitable......