Trampe v. Wis. Tel. Co.
| Decision Date | 06 February 1934 |
| Citation | 252 N.W. 675,214 Wis. 210 |
| Parties | TRAMPE v. WISCONSIN TELEPHONE CO. ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Circuit Judge.
Action by Herman Trampe against the Wisconsin Telephone Company and Harry Wren, in which defendants filed cross-complaint against each other. Judgment for plaintiff, and first named defendant appeals, and plaintiff cross-appeals.--[By Editorial Staff.]
Reversed and remanded, with directions.
Action brought to recover for medical expenses and loss of services of plaintiff's wife due to injuries suffered in an automobile accident on July 14, 1930. The complaint alleges the negligent operation of a truck owned by defendant Wisconsin Telephone Company and the automobile of the defendant Harry Wren, resulting in a collision. There were answers by defendants, with cross-complaints on the part of each against the other. The case was tried at the same time and before the same jury as the case of Julia Trampe against the same defendants. That case is also here on appeal and is decided herewith. 212 Wis. ___, 252 N. W. 678. The jury found the defendants negligent as to speed, lookout, and operation of the motor vehicles involved, and assessed damages in the sum of $1,350. The Wisconsin Telephone Company appeals, and there is a cross-appeal by the plaintiff, Trampe.
After the trial of the case, but prior to entry of judgment, the defendant telephone company made demand upon the plaintiff that he advise the court whether any settlement had been made with the defendant Wren prior to the trial. There was a refusal to comply with this request, and, upon motion made, the court ordered a stay of proceedings and had a hearing for the purpose of investigating into the existence of an alleged settlement. On January 28, 1933, it was disclosed that the plaintiff and defendant Wren had, on December 13, 1932, before the beginning of the trial, entered into the agreement, the material portions of which read as follows:
“In consideration of the covenants hereinafter contained, it is mutually agreed as follows:
The parties of the second part do hereby agree to pay to the parties of the first part the sum of $1250.00, the receipt of which is hereby acknowledged by the said parties of the first part. Said payment by said parties of the second part, however, shall not constitute a release by said parties of the first part of said parties of the second part or either of them, but shall be construed only, and such is the intention of all of the parties to this agreement, as a covenant to satisfy any judgments that may be obtained against said parties of the second part or either of them and as a covenant to perform the other conditions herein set forth.
The parties of the first part hereby agree to satisfy in full on behalf of the parties of the second part, or either of them in the event that only one is named as a defendant, but on behalf of said parties only, any and all judgments which the parties of the first part or either of them may obtain against the parties of the second part or either of them in any actions which in any manner may arise as the result of any and all damages which the parties of the first part or either of them sustained as the result of a collision on or about the 14th day of July, 1930, between an automobile operated by said Harry Wren and a truck owned by the Wisconsin Telephone Company at or near the intersection of Wisconsin Avenue and Fifteenth Street in the City of Milwaukee, Wisconsin.
In the event that the parties of the second part or either of them obtain a judgment for contribution against the Wisconsin Telephone Company and/or its insurer and because of damages sustained by the parties of the first part or either of them and arising because of said collision, and in the event that said recovery is in the sum of $500.00 or less, they agree also to pay to said parties of the first part one-half of any sum so recovered by way of contribution against the Wisconsin Telephone Company and/or its insurer. In the event, however, that said recovery is in excess of $500.00, the parties of the second part will retain only the sum of $250.00, and hereby agree to pay any sum in excess thereof to said parties of the first part.”
The trial court, upon the production of the agreement, directed the entry of a judgment, which was accordingly entered, and provides:
That the plaintiff recover $1,350 from the defendant Harry Wren.
That, upon entry of such judgment, it should be satisfied by the clerk of the court in full by virtue of the agreement dated December 13, 1932, marked “Exhibit A.”
That out of the sum of $1,250 paid by the defendant Harry Wren, and his insurer, the American Automobile Insurance Company, to the plaintiff, Herman Trampe, and his wife, Julia Trampe, the sum of $300, should be equitably and ratably applied to the plaintiff, Herman Trampe.
That the defendant Harry Wren, and his insurer, the American Automobile Insurance Company, having made payment of the sum of $300 to the plaintiff, Herman Trampe, in full payment and compromise of his claim for damages growing out of the above matter, is entitled to judgment for contribution against the defendant Wisconsin Telephone Company for one-half of said sum of $300, or the sum of $150.
That the plaintiff have and recover of and from the defendant Wisconsin Telephone Company the sum of $150, together with costs and disbursements of $103.07, total in all the sum of $253.07.
Brennan, Lucas & McDonough, of Milwaukee, for plaintiff.
Miller, Mack & Fairchild and Leon F. Foley, all of Milwaukee, for appellant Wisconsin Telephone Co.
Quarles, Spence & Quarles, of Milwaukee (Arthur Wickham, of Milwaukee, of counsel), for defendant Wren.
Under the facts above set forth, when the case was brought to trial before the circuit court, no cause of action existed in favor of Herman Trampe against either the telephone company or Harry Wren. The action was made to appear to be brought for the purposes of recovering damages on a cause of action alleged to exist, but which in fact and law did not exist, in favor of respondent. The questions here to be determined are: (a) Did the court err in entering judgment in favor of Herman Trampe and against appellant? and (b) did the court err in entering judgment for contribution in favor of the defendant Wren and the American Automobile Insurance Company?
The settlement of the claim for damages by Wren with the Trampes was not brought to the attention of the court until after the trial. It is the effect of the concealment from the court of the existence of this settlement and the manner in which it was proposed to distribute the recovery, if any, in the action, with which we are concerned. It is evident that the agreement ended any right of action which respondent had against Wren. He bound...
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Elbaor v. Smith
...The agreements are void in Nevada and Wisconsin. Lum v. Stinnett, 87 Nev. 402, 488 P.2d 347 (1971); Trampe v. Wisconsin Tel. Co., 214 Wis. 210, 252 N.W. 675 (1934). Oklahoma reached a similar result by holding that a trial court must "either hold that portion of the agreement granting agree......
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Northern Indiana Public Service Co. v. Otis
...agreement and use of Appellant Dehner relied heavily on twin cases decided by the Supreme Court of Wisconsin. Trampe v. Wisconsin Telephone Co., 214 Wis. 210, 252 N.W. 675 (1934) and 214 Wis. 218, 252 N.W. 678 (1934). There are two immediate contrasts between that case and this. First, the ......
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Bolton v. Ziegler
...the effect of permitting indemnity or contribution. In that connection she cites and relies upon the case of Trampe v. Wisconsin Telephone Co., 1934, 214 Wis. 210, 252 N.W. 675. In that case a secret agreement between an injured person and one of two alleged tort-feasors, which would have g......
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Abbott Ford, Inc. v. Superior Court
...literature, and a few out-of-state cases (see, e.g., Lum v. Stinnett (1971) 87 Nev. 402, 488 P.2d 347; Trampe v. Wisconsin Telephone Co. (1934) 214 Wis. 210, 218, 252 N.W. 675, 671), Ford and Sears urge us to hold all such agreements contrary to public policy and invalid as a matter of The ......