Hardware Mut. Cas. Co. v. Mayer
| Citation | 11 Wis.2d 58,105 N.W.2d 322 |
| Parties | HARDWARE MUTUAL CASUALTY CO., Appellant, v. Alex D. MAYER et al., Respondents. |
| Decision Date | 04 October 1960 |
| Court | United States State Supreme Court of Wisconsin |
Schanen, Schanen & Pauly, Port Washington, Arthur Wickham, Edmund W. Powell, Milwaukee, Erwin N. Pauly, Port Washington, of counsel, for appellant.
Ralph E. Houseman, Grafton, Ralph J. Huiras, Port Washington, of counsel, Richard C. Bonner, Grafton, for respondents.
Appellant and both respondents ask us to clarify our mandate. They differ in the meaning of what we said near the end of the opinion, that Sachse has an interest in establishing that the policy is applicable to his accident and therefore Sachse 'should be heard upon the question and have the opportunity to present testimony and argument to sustain the coverage.' Then followed the reversal of the judgment of the trial court which had declared that the policy gave coverage to Mayer.
The appellant insurance company fears that the respondents and the trial court may consider that the above-quoted language may affect the mandate so as to give permission to Sachse in subsequent proceedings to litigate again the coverage issue. Upon this motion for rehearing the respondents contend exactly that. This was not our intention. We intended only that the dismissal of Sachse was error and he had a right to be heard in a favorable construction of the policy. But in postponing its ruling the court did permit him to continue in the case. The error arose when, after giving him complete opportunity to be heard, that court in its judgment concluded that, after all, he was not a proper or necessary party.
If the trial court had promptly granted Sachse's motion dismissing the complaint against him and he had then refrained from further participation it would now be evident that Sachse should have been heard. But the ruling was not made until long after the parties had rested. Till then he remained in the case, he was heard, and he had the opportunity to present anything he liked. Our words concerning his right to do so do not and did not mean that they extended him a second opportunity to litigate the question of coverage.
We question whether clarification of the mandate be needed, but since all parties wish a more specific statement we affirm that our interpretation of the terms of the policy remains unaltered. The policy gives no coverage for this accident. The decision is res adjudicata to each of them.
The motion is denied. No...
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