Hooyman v. Reeve

• Decision Date: 07 January 1919
• Citation: 170 N.W. 282,168 Wis. 420
• Parties: HOOYMAN v. REEVE.
• Court: Wisconsin Supreme Court

168 Wis. 420

170 N.W. 282

HOOYMAN

v.REEVE.

Supreme Court of Wisconsin.

Jan. 7, 1919.

Appeal from Circuit Court, Brown County; Henry Graas, Judge.

Action by Reinhard A. Hooyman against James S. Reeve. From order sustaining demurrer to portions of the answer, defendant appeals. Reversed and remanded, with instructions.

Appeal from an order of the circuit court sustaining the demurrer to the following portions of the appellant's answer:

“Further answering, and as and for a second and separate defense, this defendant alleges, upon information and belief, that said plaintiff was injured on or about the 19th day of June, 1912, at Appleton, Wis., while in the employ of the Appleton Coated Paper Company, of said place and defendant further alleges that he, as a physician and surgeon, was employed to treat the injury so received by said plaintiff, and, further answering, defendant alleges that afterthe happening of the accident and injury to said plaintiff, on or about the 19th day of June, 1912, and before the commencement of this action, to wit, on the 25th day of September, 1913, the plaintiff, in consideration of the sum of $3,000 paid by the said Appleton Coated Paper Company, executed and delivered to the said Appleton Coated Paper Company a release, a copy of which is hereto attached marked ‘Exhibit A,’ and made a part hereof, with the same force and effect as though set out at length herein; that by reason thereof and by reason of the execution and delivery of said release, said plaintiff has accepted compensation in full for the injury so received by him, and has received full satisfaction for the injury so received, and said plaintiff has thereby released this answering defendant from any and all liability, and that the claim of plaintiff, if any, against the defendant has thereby been fully satisfied and discharged.

Further answering, and as and for an offset and partial defense and in mitigation of plaintiff's alleged claim for damages, this defendant alleges, upon information and belief, that said plaintiff was injured on or about the 19th day of June, 1912, at Appleton, Wis., while in the employ of the Appleton Coated Paper Company, of said place, and defendant further alleges that he, as a physician and surgeon, was employed to treat the injury so received by said plaintiff, and, further answering, defendant alleges that, after the happening of the accident and injury to said plaintiff on or about the 19th day of June, 1912, and before the commencement of this action, to wit, on the 25th day of September, 1913, the plaintiff, in consideration of the sum of $3,000 paid by the said Appleton Coated Paper Company, executed and delivered to the said Appleton Coated Paper Company a release, a copy of which is hereto attached, marked ‘Exhibit A,’ and made a part hereof, with the same force and effect as though set out at length herein.”

The plaintiff demurred to each of the foregoing portions of the answer on the ground that the same did not state facts sufficient to constitute a defense.

The release executed and delivered to the Appleton Coated Paper Company by the respondent is as follows:

“For the sole consideration of the sum of three thousand and no/100 dollars, this 25th day of September, 1913, received from Appleton Coated Paper Company, I do hereby acknowledge full satisfaction and discharge of all claims, accrued or to accrue, in respect of all injuries or injurious results, direct or indirect, arising or to arise from an accident sustained by me on or about the 19th day of June, 1912, while in the employment of the above. $3,000.00. Settlement. Reinhard Hooyman. [Seal.] Witness: Herman Hagen. Address, Black Creek. Witness: Nicholas Hermann, Jr. Address, 915 College Ave., Appleton. F. J. Rooney, F. W. Grogen, Atty. for Plaintiff.”

The claim of the respondent as set out in the complaint is that the appellant is liable for damages on account of malpractice in the treatment of the aforesaid injury.

Robert R. Freeman and Lines, Spooner, Ellis & Quarles, all of Milwaukee (Henry J. Bendinger, of Milwaukee, of counsel), for appellant.

Martin, Martin & Martin, of Green Bay, for respondent.

KERWIN, J. (after stating the facts as above).

The question involved upon this appeal is whether the court below erred in sustaining the demurrer of the plaintiff to the defendant's answer.

The separate defenses demurred to are set out in the statement of facts, and need not be repeated here.

It may be proper to state that subdivision 3 of section 2394--25, Statutes, is not involved upon this appeal.

It is insisted by counsel for respondent that it appears from the facts pleaded in defense and demurred to that two separate torts were committed, and that settlement for one does not settle the other, and that the principle of release of joint tort-feasors does not apply.

The rule invoked by counsel for respondent does not apply in the instant case. Whether the master and doctor were in a technical sense joint tort-feasors is not material here, because it is clear upon the allegations of the answer that all damages sustained by the acts of the master and the defendant doctor were settled for and satisfied.

[1][2] The malpractice, if any, contributed to produce the injury settled for and satisfied by the master; hence such cause of action against the defendant was compensated for and extinguished by the settlement made. Clearly the settlement covered all damages sustained, including injury caused by the alleged malpractice.

The damages sustained by the acts of the defendant concurred or were connected with the negligence of the master in producing the injury and damages settled for by the master. The receipt given by the plaintiff, and which is not questioned, is broad, and shows full...