Lewandowski v. Boynton Cab Co.

• Decision Date: 07 April 1959
• Citation: 7 Wis.2d 49,95 N.W.2d 823
• Parties: Jerome LEWANDOWSKI, Appellant, v. BOYNTON CAB CO., a Wisconsin corporation, et al., Respondents, Donald Lewandowski, Interpleaded Defendant.
• Court: Wisconsin Supreme Court

Page 823

95 N.W.2d 823

7 Wis.2d 49

Jerome LEWANDOWSKI, Appellant, v. BOYNTON CAB CO., a Wisconsin corporation, et al., Respondents Donald Lewandowski, Interpleaded Defendant.

Supreme Court of Wisconsin.

April 7, 1959.

Further facts will be stated in the opinion.

Marvin Resnick, Milwaukee, for appellant.

Moore & Moore, Milwaukee, for respondents.

MARTIN, Chief Justice.

Respondents Boynton Cab Company and Frank A. Lawrence maintain that the order denying summary judgment to Donald Lewandowski is not appealable by the appellant because he is not a party aggrieved, citing sec. 274.10, Stats.

It was stated in Town of Greenfield v. Joint County School Comm., 1955, 271 Wis. 442, 447, 73 N.W.2d 580, 583:

'The word 'aggrieved' refers to a substantial grievance, a denial of some personal or property right or the imposition of a burden of obligation.'

By the release entered into between appellant and the interpleaded defendant and his insurer appellant agreed to:

'* * * indemnify and save forever harmless said payors against loss or damage because of any and all further claims, demands, or actions made by others on account of or in any manner resulting from said injuries, losses, and damages.'

If Donald Lewandowski is to remain in the case as a party defendant he will at least be represented by an attorney, and payment of counsel fees, as well as any other expense incurred by reason of his continued participation in the litigation, will be, under the terms of the indemnification agreement, appellant's obligation. This satisfies the rule that he must be an 'aggrieved party,' and the denial of Donald Lewandowski's motion for summary judgment entitles the appellant to appeal therefrom under sec. 274.10, Stats.

Under the rule of Heimbach v. Hagen, 1957, 1 Wis.2d 294, 83 N.W.2d 710, the trial court should have granted Donald Lewandowski's motion for summary judgment. The release in the instant case reads:

'I reserve the right to make claim against any and every other person, this is a release of the persons herein specifically designated only. They are also released and discharged to the extent of their liability, if any, for contribution, and my claims and causes of action are credited and satisfied on their behalf to the extent of one-half (1/2) thereof.'

In Heimbach v. Hagen, supra, (1 Wis.2d at page 295, 83 N.W.2d at page 711), the release in question contained practically identical language:

'This is a release of the persons herein specifically designated only. They also are released and discharged to the extent of their liability, if any, for contribution, and said claims and causes of action are credited and satisfied on their behalf to the extent of one half (1/2) thereof.'

This was given by the plaintiff to a Miss Calbick and her insurer. Plaintiff later sued the Hagens. They interpleaded Calbick and her insurance company, who answered the cross-complaint against them for contribution, setting up the release as a defense, and moved for summary judgment. On the appeal which was taken from the order denying said motion, this court held (1 Wis.2d at page 295, 83 N.W.2d at page 712):

'The sole question for decision is whether the above-quoted release is effective to bar the right to contribution which defendants Hagen...