Kerkhoff v. American Auto. Ins. Co.

• Decision Date: 03 October 1961
• Citation: 111 N.W.2d 91,14 Wis.2d 236
• Parties: Hilda KERKHOFF, formerly Wittlinger, Appellant, v. AMERICAN AUTOMOBILE INSURANCE CO., a foreign insurance corporation, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 91

111 N.W.2d 91

14 Wis.2d 236

Hilda KERKHOFF, formerly Wittlinger, Appellant, v. AMERICAN AUTOMOBILE INSURANCE CO., a foreign insurance corporation, et al., Respondents.

Supreme Court of Wisconsin.

Oct. 3, 1961.

Action commenced by plaintiff Hilda Wittlinger Kerkhoff against Anita K. M. Vogler Callsen, American Automobile Insurance Company, Charles Lansberry and Government Employees Insurance Company, for damages sustained in a collision.

The collision occurred on June 17, 1958, about 4:49 p. m., at the intersection of 27th Street and Kilbourn avenue. Kilbourn avenue extends in an east-west direction and 27th Street in a north-south direction. The intersection formed by these two highways had stop and go signal lights at the four corners. The plaintiff was operating her automobile in a southerly direction on North 27th Street, brought her automobile to a stop before entering West Kilbourn avenue, in obedience to a red light of the traffic control signal. Defendant Lansberry entered the intersection traveling in an easterly direction on West Kilbourn avenue with the green light. Callsen, who was traveling in a northerly direction on 27th Street drove her car through the red light and collided with Lansberry, and then proceeded to hit the plaintiff's car which was waiting for the light to change.

The plaintiff brought suit against both defendants alleging that they were joint tort-feasors. The defendants and their respective insurance carriers filed their answers in the original action and their answers to the cross-complaints denying liability for contribution.

Two days before the trial, the defendant Lansberry and his insurer, settled with the plaintiff for $2,500. The release and covenant not to sue executed by the plaintiff states that she relies on sec. 113.05, Stats., 1957, and that the defendant Lansberry and his insurer are released and discharged to the extent of their liability, if any, for contribution and said claims and causes of action are validated and satisfied on their behalf to the extent of one half thereof, and reserves her right and causes of action against defendants Callsen and American Automobile Insurance Company.

A stipulation was entered into between plaintiff and defendants, Charles Lansberry and his insurance carrier, to dismiss the action against them on the merits without costs to either party. The action came to trial on the 12th day of September, 1960, and the court, pursuant to the stipulation, dismissed the action against Charles Lansberry and his insurance carrier on the merits, and the cross-complaints of the defendants against each other for contribution. However, plaintiff did not move to amend her complaint. As the complaint stood throughout the trial it alleged that both Lansberry and Callsen were joint tort-feasors. Trial was then had to the court and jury against Anita Callsen and her insurance carrier.

After the trial, plaintiff requested that the special verdict include a question as to Lansberry's negligence. The court refused to include questions as to Lansberry's negligence and found the nonsettling defendant Callsen negligent as a matter of law and that such negligence was causal, and submitted the question as to the amount of damages to the jury.

The jury assessed damages at $9,550. Upon motions after verdict the court entered an order under date of October 26, 1960, that plaintiff recover judgment from defendant Callsen and her insurance carrier for $9,550 together with costs and disbursements, which order also contained this paragraph:

'It is further ordered, that the plaintiff, Hilda Kerkhoff (formerly Wittlinger), cause to be executed and filed herein a satisfaction of said judgment to the extent of one-half ( 1/2) thereof pursuant to the terms of said release and covenant not to sue under Section 113.05 of the Wisconsin Statutes.'

Under date of November 21, 1960, judgment was entered for the recovery by the plaintiff from the defendants of the sum of $9,550 but contained no provision requiring the plaintiff to satisfy one half thereof. Thereafter, because the plaintiff had failed to satisfy one half of the judgment, an amended judgment was entered on December 19, 1960, which directed the clerk of court to satisfy one half of the judgment.

The plaintiff has appealed from the order of October 26, 1960, and from the whole of both the original and the amended judgments.

Charles Saggio, Milwaukee, for appellant.

James W. Lane, Milwaukee, for respondent.

DIETERICH, Justice.

The appeal from the order of December 19, 1960, must be dismissed because such order concluded with these words, 'Let judgment be entered accordingly.' Thus it was an order for judgment, which is a nonappealable order. Mitler v. Associated Contractors, 1958, 3 Wis.2d 331, 332, 88 N.W.2d 672, and cases cited therein. The appeal from the original judgment of November 21, 1960, will also be dismissed because it is entirely in plaintiff's favor and was entered upon her own motion.

While plaintiff has appealed from the whole of the amended judgment of December 19, 1960, her brief makes it clear that she is only attacking the provision thereof which directs the clerk to satisfy one half of the amount of the judgment.

Plaintiff contends on this appeal that Lansberry and Callsen were not joint tort-feasors and, therefore, it was error for the trial court to direct that one half of the judgment be satisfied on the theory that the release given Lansberry automatically reduced plaintiff's damages recoverable against Callsen and her insurer by one half. Plaintiff points to the fact that she made a written request for the inclusion in the verdict of questions inquiring as to Lansberry's causal negligence, but the trial court refused such request.

At common law a release of one of two joint tort-feasors...