Retelle v. Sullivan

• Decision Date: 11 January 1927
• Citation: 191 Wis. 576,211 N.W. 756
• Parties: RETELLE v. SULLIVAN (TWO CASES).
• Court: Wisconsin Supreme Court

191 Wis. 576

211 N.W. 756

RETELLE

v.SULLIVAN (TWO CASES).

Supreme Court of Wisconsin.

Jan. 11, 1927.

Appeals from Circuit Court, Dane County; August C. Hoppmann, Judge.

Actions by L. B. Retelle and by Russell Retelle, by L. B. Retelle, his guardian, against Dr. Arthur Sullivan. From orders overruling demurrers to the answers, plaintiffs appeal. Affirmed.--[By Editorial Staff.]

Appeals from orders overruling demurrers to the answers. These answers were brought to recover damages sustained by reason of alleged malpractice, arising out of the improper and unskillful setting of the broken arm of the infant, Russell Retelle. The answers set up as a separate defense the fact that the arm of Russell Retelle was broken while he was on or about certain premises owned by one M. B. Allison, and that plaintiffs made claim against said Allison for damages by reason of the injury so sustained; that the said Allison was insured in the Builders' Limited Mutual Liability Insurance Company of Madison, Wis.; that said injury occurred on the 23d day of September, 1923; that the defendant was employed as a physician and surgeon to treat the broken arm of said Russell Retelle; that the last day on which the said defendant gave treatment or rendered services in or about said broken arm was the 23d day of November, 1923; that on the 4th day of June, 1924, the plaintiffs settled their respective claims for damages against said M. B. Allison and the Builders' Limited Mutual Liability Insurance Company for the sum of $1,500, respectively, and that upon such settlement releases were executed to said M. B. Allison and the Builders' Limited Mutual Liability Insurance Company of Madison, one signed by Levi B. Retelle, the father, and the other by Levi Retelle, as guardian of Russell Retelle, whereby the said M. B. Allison and the Builders' Limited Mutual Liability Insurance Company were forever released and discharged “from all actions, causes of action, and demands of every kind and nature which I now have, claim to have, or may hereafter claim to have against either or both of them arising out of or on account of said injury to said Russell Retelle.” The plaintiffs demurred to that portion of the respective answers setting up said releases as a defense to the respective actions. The demurrers were overruled, and from the orders so overruling said demurrers appeals were taken to this court.Olin & Butler, of Madison, for appellants.

Richmond, Jackman, Wilkie & Toebaas, of Madison, and Lines, Spooner & Quarles, of Milwaukee, for respondent.

OWEN, J.

These actions are brought by father and son to recover damages resulting from the alleged malpractice. They involve the same legal questions, they were briefed and argued together in this court, and will be disposed of in a single opinion.

[1] It appears from the pleadings that the injury, namely, the broken arm, was sustained on or about the 23d day of September, 1923; that the defendant's care and treatment ceased on November 30, 1923; and that on June 4, 1924, settlement was made with M. B. Allison and his insurance carrier, by which the said Allison...