Kropidlowski v. Pfister & Vogel Leather Co.

• Decision Date: 23 April 1912
• Citation: 149 Wis. 421,135 N.W. 839
• Parties: KROPIDLOWSKI v. PFISTER & VOGEL LEATHER CO.
• Court: Wisconsin Supreme Court

149 Wis. 421

135 N.W. 839

KROPIDLOWSKI

v.PFISTER & VOGEL LEATHER CO.

Supreme Court of Wisconsin.

April 23, 1912.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by Joseph Kropidlowski against the Pfister & Vogel Leather Company. From an order sustaining a demurrer to the second defense, defendant appeals. Affirmed.

The complaint in this action alleged that on or about April 23, 1910, plaintiff was employed by the Herman Zohrlaut Leather Company in its factory, and that the defendant herein delivered to said company certain carboys of acid; that plaintiff, in the performance of his duties, was required to remove the carboys from the yard to the storeroom; that the stopper in the neck of one of the carboys was defective, in that it was improperly placed therein, and that while plaintiff was handling the carboy the stopper blew out, the acid coming in contact with his eyes, as a result of which he lost the sight of one and sustained injuries to the other. The answer denied generally the allegations of the complaint, and as a second defense pleaded the following release as a bar to recovery against defendant: “Received from Herman Zohrlaut Leather Company the sum of one thousand dollars ($1,000.00), and the payment of medical and hospital bills due Dr. George Mason and St. Mary's Hospital, amounting to $58 and $32.59, respectively, both for services rendered me on account of the below-mentioned accident, and in consideration of said sums so paid I hereby release and forever discharge said Herman Zohrlaut Leather Company, its successors and assigns, of and from any and all actions, claims and demands against said Herman Zohrlaut Leather Company for, upon or by reason of any damage, loss, injury or suffering which heretofore has been or which may hereafter be sustained by me in consequence of an accident and injury suffered by me on or about the 23d day of April, 1910, while in the employ of said Herman Zohrlaut Leather Company; and I hereby covenant and agree with said Herman Zohrlaut Leather Company that, in consideration of the payment of said sums, I will not begin or prosecute any action against said Herman Zohrlaut Leather Company on account of said accident or injuries. It is expressly understood, however, that said sums are received, not as an accord and satisfaction for the whole injury suffered, but only as part satisfaction thereof. In witness whereof I have hereunto set my hand and seal at Milwaukee, Wis., this 19th day of December, 1910. [Signed] Joseph Kropidlowski. [Seal.]” Plaintiff demurred to defendant's second defense, on the ground that it did not state facts sufficient to constitute a defense, which demurrer was sustained, and from an order sustaining the demurrer this appeal is taken.Lines, Spooner, Ellis & Quarles, for appellant.

Kronshage, Fritz & Hannan, for respondent.

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

The appellant maintains that the instrument set forth in the statement of facts is a release, under seal, of one of two joint wrongdoers, and that the legal effect of the document is to release and discharge both. The respondent contends that the so-called release should be construed as a covenant not to sue the Herman Zohrlaut Leather Company, and not as a technical release, and that, so construed, it does not bar a recovery from the appellant for the difference between the amount of damages sustained and the sum already paid by the Zohrlaut Company. The question is an interesting one; and it may be fairly said at the outset that, while the decided cases preponderate in favor of the contention of the appellant, the reasoning which supports them seems to be technical, artificial, and unsatisfactory.

[1][2] The general rule that a release of one joint wrongdoer releases all is elementary. The same is true where the party who is wronged receives a valuable consideration from one of two or more joint wrongdoers as an accord and satisfaction of the whole injury. While the cases may differ to some extent as to the reason for the rule stated, most courts base it on the assumption that the injured party has received full satisfaction, or what is, in law, equivalent to full satisfaction, for the damages sustained, and that recovery should not go beyond this.

The alleged release here involved recites that the sums paid were not received “as an accord and satisfaction for the whole injury suffered, but only as part satisfaction thereof,” and clearly indicates an intention on the part of the respondent to reserve the right to collect the balance of his damages from the other wrongdoer.

The appellant contends that this portion of the document is contrary to the terms of the grant, and should be rejected as mere surplusage, and that, inasmuch as one of the wrongdoers was released, there is a conclusive presumption of law that there was full compensation for the injury, and the cause of action is wholly extinguished. Judge Cooley states the rule to be that the release of one joint tort-feasor releases all, “although the release expressly stipulates that the other defendants shall not be released.” Cooley on Torts (3d Ed.) vol. 1, 235, 236, and cases cited in note 81. The author continues: “And this rule is held to apply, even though the one released was not in fact liable.” Page 236, and cases cited in note 82. Additional cases to the proposition covered by the first of the above quotations will be found in a note to Abb v. Railway Co., 58 L. R. A. 297, and further citations will be found in the comprehensive notes to the late case of McBride v. Scott, 132 Mich. 176, 93 N. W. 243, 61 L. R. A. 445, 102 Am. St. Rep. 416, as reported in Am. & Eng. Ann. Cas. vol. 1, 62, 63.

[3] Some of our own cases bear upon the subject under discussion, but do not cover the precise point involved. Ellis v. Esson, 50 Wis. 138, 147, 6 N. W. 518, 36 Am. Rep. 830, is a leading case on the proposition that, where...