Pierringer v. Hoger

Decision Date29 October 1963
Citation21 Wis.2d 182,124 N.W.2d 106
PartiesLoschel PIERRINGER, Plaintiff-Respondent, v. Burton E. HOGER, d/b/a Wisconsin Heating Distributors and Simco Sales, Stoelting Brothers Company, a Wisconsin corporation, Milwaukee Gas Light Company, a Wisconsin corporation, Defendants-Respondents, Schmitz Ready Mix, Inc., a Wisconsin corporation, Defendant, and William Bormann, Interpleaded Defendant-Respondent, Mathias Greisch, Interpleaded Defendant-Appellant, James E. Greisch and William R. Greisch, Interpleaded Defendants. Burton E. HOGER and William Bormann, Plaintiffs-Respondents, v. MILWAUKEE GAS LIGHT COMPANY, a Wisconsin corporation, Lester Olsen, d/b/a Olsen Electric Company, and Loschel Pierringer, Defendants-Respondents, and Schmitz Ready Mix, Inc., Interpleaded Defendant, Stoelting Brothers Company, Interpleaded Defendant-Respondent, Mathias Greisch, Interpleaded Defendant-Appellant, James E. Greisch and William R. Greisch, Interpleaded Defendants.
CourtWisconsin Supreme Court

These cases involve identical issues of law and arise out of the same set of facts. On November 1, 1957, an explosion occurred at a concrete mixing plant in Port Washington, Wisconsin, injuring Loschel Pierringer, the plaintiff in Case No. 31, and Burton E. Hoger and William Bormann, the plaintiffs in Case No. 32. The defendants including the interpleaded defendants are alleged to be tort-feasors and have cross-complained against each other for contribution. Prior to trial, all of the defendants excepting Mathias Greisch made settlements with the plaintiffs. Similar releases and indemnification agreements were executed with each plaintiff. The total consideration therefor amounted to $37,964. Based upon the releases, motions were made by the settling defendants, who are respondents here, for summary judgment to dismiss the cross-complaints of appellant Greisch for contribution against them and their cross-complaints against him. The trial court granted the respondents' motions and from the judgment, Greisch appeals.

Kivett & Kasdorf, Milwaukee, Stuart G. Grady, Port Washington, A. W. Kivett, Milwaukee, of counsel, for appellant.

Ray T. McCann, Laurence Collins and Lorinczi & Weiss, Milwaukee, for Hoger.

Ray T. McCann, Laurence Collins, Milwaukee, and Gerold & Huiras, Port Washington, Leonard L. Loeb, Milwaukee, of counsel, for Bormann.

George D. Young, Milwaukee, for Olsen.

Erwin N. Pauly, Port Washington, for Pierringer.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, Arthur Wickham, Milwaukee, of counsel, for Stoelting Bros. Co.

Foley, Sammond & Lardner, Harrold J. McComas, Milwaukee, for Milwaukee Gas Light Co.

HALLOWS, Justice.

The releases were executed after the decision in Bielski v. Schulze (1962), 16 Wis.2d 1, 114 N.W.2d 105, and are too long to quote verbatim. Each releases and discharges the respondents from all claims and causes of action of the plaintiff and recites the settlement was a compromise of the plaintiff's claims which exceeded the consideration paid and the plaintiff and the respondents knew the respondents were not paying the full amount of the plaintiff's damages. Each release provided the plaintiff 'does hereby credit and satisfy that portion of the total amount of damages of the undersigned * * * which has been caused by the negligence, if any, of such of the settling parties hereto as may hereafter be determined to be the case in the further trial or other disposition of this or any other action' and the plaintiff 'does hereby release and discharge, that fraction and portion and percentage of his total causes of action and claim for damages against all parties * * * which shall hereafter, by further trial or other disposition of this or any other action be determined to be the sum of the portions or fractions or percentages of causal negligence for which any or all of the settling parties hereto are found to be liable * * *.' The releases also contain a reservation of rights to 'the balance of the whole cause of action of the undersigned against the said Mathias Greisch,' an indemnification agreement for any amount the respondents may be required to pay upon any judgment obtained against them for contribution and an agreement to satisfy any judgment the plaintiff recovers for the full cause of action against the appellant to the extent of the fraction of the cause of action released. These latter provisions for indemnification and for satisfaction of judgment are no doubt second-line protection for the respondents in the event the other provisions were ineffective. The problem of drafting a release effective in tort actions to carry out the intentions of the parties thereto where all the tort-feasors are not parties is admittedly difficult and on occasion a frustrating task under the case law and statutory law of this state.

The first question presented by the releases under consideration is whether they are effective to bar the nonsettling tort-feasor's right to contribution. The appellant argues, relying on State Farm Mutual, 1 that since he was not a party to the release his rights to contribution are not affected and, in addition, that under Bielski it is impossible to draft a release which will affect such right of the nonsettling tort-feasor. We consider both of these contentions are without merit. Releases of joint tort-feasors may and do take many forms having the characteristics and legal effect of a covenant not to sue, or a partial satisfaction of the damages and of the cause of action, or an accord and satisfaction of the whole cause of action, or a discharge from liability, or various combinations thereof. The direct and indirect legal effect of these concepts was established before the right of contribution between joint tort-feasors was recognized in this state and before the enactment of the Uniform Joint Obligations Act, i. e., ch. 113, Stats.

The rules historically applied to actions between the injured party and one or more tort-feasors relating to primary liability. Difficulties and confusion increased in their application to contribution cases. Basic were the common-law rules that joint obligors on contract were not severally liable and had to be joined in one action while joint tort-feasors were both jointly and severally liable and any one could be sued and full recovery obtained against him. Consequently, a release of one joint obligor which discharged his liability was considered a satisfaction of the debt or of the whole cause of action, barring recovery from the other joint obligor. This was especially true of release under seal. Where the intention of the parties as shown by the release was not to satisfy the whole debt or operate as an accord and satisfaction and thus extinguishing the cause of action, some courts including ours treated such a release as having the effect of a covenant not to sue. This same technique was carried over into cases involving joint tort-feasors although the reasons therefor were not so much needed in order to effectuate the intention of the parties. 2 To emphasize the character of a release as not satisfying the debt or cause of action, express reservations of rights against the nonsettling tort-feasors were included in the release. For additional protection to the settling tort-feasor, an indemnity agreement was added and sometimes a satisfaction-of-judgment agreement.

In State Farm Mutual we construed a release providing for complete discharge of the settling tort-feasor with a reservation of rights of the full cause of action against the nonsettling tort-feasor to be in the nature of a covenant not to sue and held the nonsettling tort-feasor's right to contribution was not affected. Significantly, the release did not purport to satisfy any part of the damages or of the cause of action. There was no settlement within the scope of an accord and satisfaction, and the whole cause of action remained against the nonsettling tort-feasor. It was thought necessary in that case to state no different result was reached under sec. 113.04, Stats. 3 However, it does not follow that all releases involving tort-feasors are in legal effect covenants not to sue or are governed by ch. 113, Stats.

The suggestion in State Farm Mutual that a release which did not reserve rights against the nonsettling tort-feasor would come under sec. 113.05, Stats., has not led in practice to the common use of such form of release. Lawyers have distrusted the effect of sec. 113.05 on rights of contribution and certainly that section is unworkable and entirely inadequate to carry out the intention of the parties making settlements in negligence cases. This view is borne out by the type of release involved in Heimbach v. Hagen (1957), 1 Wis.2d 294, 83 N.W.2d 710; Lewandowski v. Boynton Cab Co. (1959), 7 Wis.2d 49, 95 N.W.2d 823; Jacobs v. General Acc. Fire & Life Assur. Corp., Ltd. (1961), 14 Wis.2d 1, 109 N.W.2d 462, 88 A.L.R.2d 1347; Kerkhoff v. American Automobile Ins. Co. (1961), 14 Wis.2d 236, 111 N.W.2d 91. The releases in those cases, excepting Kerkhoff, were attempts to avoid sec. 113.05, Stats., by releasing the settling tort-feasor, satisfying a definite part of a cause of action, reserving rights to the balance of it against the nonsettling tort-feasor, and in the process to completely protect the settling tort-feasor from liability to the injured party and from claims of contribution from the nonsettling tort-feasor. Kerkhoff expressly attempted to rely on sec. 113.05 although containing a reservation of rights and a satisfaction of one-half of the cause of action.

In Heimbach, the release specifically provided inter alia a release of tort-feasors from their direct liability to the plaintiff, a covenant not to sue them, and an agreement that the plaintiff's claim and cause of action were credited and satisfied to the extent of one-half thereof. This release was no mere covenant not to sue but a satisfaction of one-half of the cause of...

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    ...6 and the amount attributable to the settling defendant's negligence. This rule adopted by Wisconsin (Pierringer v. Hoger (1963) 21 Wis.2d 182, 124 N.W.2d 106, 111-112), would force a plaintiff to demand settlements reasonably commensurate to the fault of the settling defendant because he w......
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    ...of appeals decision. I am authorized to state that Justice WILLIAM A. BABLITCH joins this dissenting opinion. 1 Pierringer v. Hoger, 21 Wis.2d 182, 124 N.W.2d 106 (1963).2 A cause of action, if there is one, arises on the date of plaintiff's injury. Hunter v. Sch. Dist. Gale-Ettrick-Trempea......
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