Weis v. A. T. Hipke & Sons, Inc.

• Decision Date: 08 November 1955
• Citation: 271 Wis. 140,72 N.W.2d 715
• Parties: Lewis E. WEIS, Plaintiff, v. A. T. HIPKE & SONS, Inc., a Wis. corporation, Respondent, The City of New Holstein, a Municipal corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 715

72 N.W.2d 715

271 Wis. 140

Lewis E. WEIS, Plaintiff, v. A. T. HIPKE & SONS, Inc., a Wis. corporation, Respondent The City of New Holstein, a Municipal corporation, Appellant.

Supreme Court of Wisconsin.

Nov. 8, 1955.

Mulhern & Lucas, New Holstein, for appellant.

Puhr, Peters, Holden & Schlosser, Sheboygan, Walter P. Rynkiewicz, Sheboygan, of counsel, for plaintiff and respondent.

John P. McGalloway, Fond du Lac, for respondent A. T. Hipke & Sons, Inc.

BROWN, Justice.

Sec. 81.17, Stats., controls this controversy. It states:

'Highway defects; liability of wrongdoer; procedure. Whenever damages happen to pay person or property by reason of any defect in any highway or other public ground, or from any other cause for which any town, city, village or county would be liable, and such damages are caused by, or arise from, the wrong, default or negligence thereof and of any person, or private corporation, such person or private corporation shall be primarily liable therefor; but the town, city, village or county may be sued with the person or private corporation so primarily liable. If the town, city, village or county denies its primary liability and proves upon whom such liability rests the judgment shall be against all the defendants shown by the verdict or finding to be liable for the damages; but judgment against the town, city, village or county shall not be enforceable until execution has been issued against the party found to be primarily liable and returned unsatisfied in whole or in part; on such return being made the defendant town, city, village or county shall be bound by the judgment. The unpaid balance shall be collected in the same way as other judgments.'

Applied to this case, the statute seems to us to say that if both Hipke and the city are liable to the plaintiff because of a defect in the highway, whether that be a nuisance or otherwise, the city shall be only secondarily liable and need pay the plaintiff only that part of the judgment which the plaintiff has been unable to collect from Hipke. If that is so, it is evident that Hipke can have no cause of action to recover from the city anything which Hipke, the party primarily liable, has had to pay the plaintiff.

Hipke argues that the second half of sec. 81.17, Stats., recognizes that the city may deny its primary liability and prove that the primary liability is that of someone else; therefore, if the city fails in such proof it remains primarily liable, leaving the other defendant, at most, only secondarily liable. The trouble...