Heimbach v. Hagen
| Decision Date | 04 June 1957 |
| Parties | Althea HEIMBACH, Plaintiff, v. Emma K. HAGEN et al., Respondents, Gladys S. Calbick et al., Interpleaded Defendants and Appellants. |
| Court | Wisconsin Supreme Court |
Quarles, Spence & Quarles, Milwaukee, Arthur Wickham, Milwaukee, of counsel for appellants.
Crosby H. Summers, Janesville, for respondents
The sole question for decision is whether the above-quoted release is effective to bar the right to contribution which defendants Hagen and their insurer would otherwise have in the event they are held liable to plaintiff in the pending action. We hold that the right to contribution has been extinguished, and that Calbick and her insurer are entitled to dismissal from the action.
For present purposes we must assume that Calbick and Mrs. Hagen were contributing or 'joint' tort-feasors, both responsible for plaintiff's injuries and severally liable for her entire damages. Calbick and her insurer sought to buy their peace from litigation and liability by paying plaintiff $7,500 in exchange for, inter alia, (1) a release of their direct liability to plaintiff, (2) a covenant on plaintiff's part not to sue them and (3) an agreement that plaintiff's 'claims and causes of action are credited and satisfied on their (Calbick and her insurer) behalf to the extent of one-half ( 1/2) thereof,' which it was hoped would extinguish their potential liability for contribution.
On the contribution question, the controlling feature of the release is that in which plaintiff, on behalf of Calbick and her insurer, credits and satisfies plaintiff's claims and causes of action to the extent of one-half thereof. Thereby plaintiff settled 50 per cent of her cause of action, whatever its amount might prove to be, and retained only the other 50 per cent to enforce against the defendants. If the action proceeds against the latter, and plaintiff wins the verdict, plaintiff will have to credit as paid one-half of the amount of her total original cause of action as so established, and defendants will not have to pay more than one-half of such total. One-half of plaintiff's cause of action is the maximum that Hagens and their insurer could recover from Calbick and her insurer in the absence of this settlement, if upon trial it should be determined that both Hagen and Calbick are liable as joint tort-feasors and defendants should pay the entire judgment. Thus, giving effect to the settlement, defendants will not have to pay any more than if Calbick had remained in the case and had remained liable for contribution.
Contribution between joint tort-feasors is in origin an equitable principle, and arises when one joint tort-feasor pays more than his equitable share of the damages. Mutual Auto Ins. Co. v. State Farm Mut. Auto Ins. Co., 268 Wis. 6, 8, 66 N.W.2d 697. Where there are two joint tort-feasors, that share is fixed by law at one-half. In the present case, for the reasons stated, defendants will never have to pay more than one-half of plaintiff's total damages. Therefore there is no occasion to preserve for them in form a purely theoretical right to contribution which they could never exercise.
Defendants' main contention is that if they are denied right of contribution from Calbick, they may have to pay more than one-half of plaintiff's total recovery. Thus if the jury finds plaintiff's damages to be $20,000, defendants will have to pay $10,000 while Calbick pays only $7,500. They say that in such a situation they should have a right of contribution against Calbick for $1,250, so that ultimately each party will pay $8,750, or one-half of plaintiff's total cash recovery of $17,500.
We think, however, that defendants cannot complain, and will not have paid more than their proper share, if they have to pay $10,000 out of total damages of $20,000. They will not have paid more than one-half of plaintiff's damages, nor more than they would...
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