Noll v. Nugent

• Decision Date: 06 February 1934
• Citation: 252 N.W. 574,214 Wis. 204
• Parties: NOLL v. NUGENT.
• Court: Wisconsin Supreme Court

214 Wis. 204

252 N.W. 574

NOLL

v.NUGENT.

Supreme Court of Wisconsin.

Feb. 6, 1934.

Appeal from a judgment of the Circuit Court for Milwaukee County; August E. Braun, Circuit Judge.

Action by Mae Noll against Arthur C. Nugent. Judgment for defendant, and plaintiff appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

Action to recover damages for personal injury sustained by plaintiff as the result of alleged malpractice in medical treatment administered to plaintiff by defendant. Upon motions after a verdict favorable to plaintiff, the court ordered judgment dismissing the complaint. Judgment was entered accordingly; and plaintiff appealed.

Gold & McCann, of Milwaukee, for appellant.

Shaw, Muskat & Paulsen, of Milwaukee, for respondent.

FRITZ, Justice.

It appears, without dispute, that on May 9, 1928, plaintiff sustained injury to an ankle in a fall on a defective walk maintained by George L. Baldauf, against whom she made a claim for the damages which she sustained by reason of his negligence. The defendant Nugent administered proper medical treatment for the injured ankle until plaintiff was discharged as cured, on September 4, 1928. On April 26, 1929, she settled her claim against Baldauf for $700, and, in consideration of that payment, she executed a release, which, so far as here material, provided that she released, and forever discharged, “the said George L. Baldauf of and from all claims, demands, damages, actions, cause of action, or suits at law or in equity, of whatsoever kind or nature, for or because of any matter or thing done, omitted or suffered to be done by said George L. Baldauf prior to and including the date hereof, and particularly on account of all injuries both to person or property resulting, or to result, from an accident which occurred on or about the 9th day of May, 1928, at Milwaukee, Wisconsin.” In December, 1929, she returned to the defendant for further treatment of the ankle and, while he was administering a diathermic heat treatment on January 28, 1930, she sustained injuries by reason of the excessive application of heat, which resulted in the damages which she seeks to recover in this action.

[1] On the trial the court overruled defendant's motions for a nonsuit, and for a directed verdict. In a special verdict the jury found that the defendant was negligent in administering the diathermic heat treatment on January 28, 1930, and that such negligence was a proximate cause of the injuries sustained by plaintiff as the result of that treatment. On defendant's motions after verdict, as also on this appeal, defendant contended that the evidence does not sustain the jury's finding that the defendant's negligence in administering the treatment was a proximate cause of plaintiff's injury. The trial court overruled that contention. As defendant served no notice to review under section 274.12, Stats., he is not entitled on this appeal to raise the question as to the sufficiency of the evidence to sustain that finding. However, upon reviewing the record in relation to that contention, we find no error in that respect.

On the other hand, the court ruled that the release of Baldauf on April 26, 1929, prior to the defendant's malpractice on January 28, 1930, operated as a release of the claim against the defendant Nugent for the damages which she sustained by reason of his malpractice on January 28, 1930. That ruling is challenged by plaintiff on her appeal. It is true that in form the release involved in this action is substantially like those involved in Hooyman v. Reeve, 168 Wis. 420, 170 N. W. 282, and in Retelle v. Sullivan, 191 Wis. 576, 211 N. W. 756, 50 A. L. R. 1106. However, in those cases the malpractice, in treating injuries previously caused by the negligence of another tort-feasor, occurred prior to the settlement and release of that tort-feasor. The distinguishing...