Hartley v. St. Francis Hospital
| Decision Date | 30 June 1964 |
| Citation | 24 Wis.2d 396,129 N.W.2d 235 |
| Parties | Sadie M. HARTLEY, as Admnx. of the Estate of Wm. A. Hartley, Deceased, Appellant, v. ST. FRANCIS HOSPITAL, a corporation, et al., Respondents. |
| Court | Wisconsin Supreme Court |
Hale, Skemp, Hanson, Schnurrer & Skemp, La Crosse, for appellant.
Johns, Pappas & Flaherty, L. E. Sheehan, La Crosse, for respondents.
The original complaint set forth two causes of action--one in the plaintiff's own behalf, alleging that in settling with Avery and the insurance company, he did not intend to release his claim against the defendants for malpractice, and did not intend to transfer this claim to Avery and his insurer by subrogation. The second cause of action was brought by plaintiff as assignee of the insurance company. Avery was not joined as a defendant in the complaint.
The defendants, St. Francis Hospital, Esther Roberton, and Dr. Phillips, demurred to the first cause of action on grounds that it failed to state a cause of action; and to the second cause of action on grounds of a defect in parties plaintiff. The court sustained the demurrers, holding that the general release given by plaintiff to the insurance company carried with it any claim for injuries resulting from later medical malpractice, and thus plaintiff could not sue for these damages in his own behalf. The court also held that Avery owned by subrogation a part of plaintiff's claim for damages for medical malpractice, and that Avery must be joined as either a party plaintiff or a party defendant.
Plaintiff then served an amended summons and complaint on Lloyd Avery at his home in Minnesota, and served the amended complaint on all other defendants. The complaint set forth one cause of action, alleging the same facts as the original complaint, and the additional allegation that Lloyd Avery refused to join as a party plaintiff. Avery was added by the plaintiff as a party defendant without a court order, and he has made no appearance in the case.
The hospital, Esther Roberton and Dr. Phillips demurred to the amended complaint on the following grounds: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that there is a defect in parties plaintiff in that Lloyd Avery, who owns a portion of the cause of action, is not a plaintiff; (3) that there is a defect in parties defendant, in that Lloyd Avery is not a proper party defendant; and (4) that the court does not have jurisdiction over Avery. The trial court sustained the demurrers to the amended complaint, and stated in a memorandum decision that since the unconditional release was given by the plaintiff some five months after the alleged malpractice had occurred, the case is governed by the general rule that a general release is presumed to include damages for an aggravation of the original injury. The trial court also concluded that there was a defect in parties because the proper procedure was not taken for the inclusion of Avery into the action. An order was entered on December 11, 1963, sustaining the defendants' demurrers, and allowing the plaintiff 20 days to amend the complaint. The appeal is from the order.
The major issue involved on the instant appeal is whether a general release bars a...
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Konkel v. Acuity
...of its position, Acuity relies exclusively on cases predating the enactment of WIS. STAT. ch. 655.7 See, e.g., 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. Nug......
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...24 Cal.2d 654, 150 P.2d 876; 6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 1322, p. 779.) They cite to Hartley v. St. Francis Hospital (1964) 24 Wis.2d 396, 129 N.W.2d 235, opinion on denial of rehearing (1964) 24 Wis.2d 396, 130 N.W.2d 1, as a precedent for applying this principle t......
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Krenz v. Medical Protective Co. of Fort Wayne, Indiana
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Cimino v. Alway, 1
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