Maahs v. Antigo Lumber Co.

145 N.W. 222, 156 Wis. 1, 1914 Wisc. LEXIS 57

• Court: Wisconsin Supreme Court
• Decided: February 3, 1914
• Status: Published

Opinion

Babees, J.

It would seem to have been the intention of the pleader to state a cause of action for tort in the amended complaint and to compel tbe defendants, because of tbe insolvency of tbe Antigo Lumber Gomya/ny, to pay tbe money received from tbe insurance company into court to tbe end that tbe same might' be applied in satisfaction or partial satisfaction of any judgment that might be recovered for tbe tort. Conceding that' a cause of action based on a settlement was also stated, tbe plaintiff at least bad tbe right to insist on proving bis cause of action in tort. He was not' even given tbe right of election, and in this we think tbe court was clearly in error. Tbe plaintiff, however, is seeking in this court' to sustain tbe judgment recovered, and if tbe evidence warranted tbe direction of tbe verdict returned tbe defendants have no cause for complaint.

However shady tbe transaction between Erickson and tbe insurance company may appear, and it does appear shady on Erickson’s part, we fail to see bow tbe ruling of tbe court in directing a verdict can be approved. This is so for two reasons: First, because tbe plaintiff’s evidence fails to show that a settlement was made, and; second, because there was ample evidence offered by tbe defendants tending to show that' a settlement was not' made, to warrant tbe jury in so finding.

Tbe evidence offered on behalf of tbe plaintiff tended to show that settlements of tbe claim of tbe plaintiff and of that of Grail were made with Erickson for $1,600, provided tbe insurance company would approve of tbe settlements and pay tbe amounts agreed upon, and that plaintiff was to recover $1,000 and Grail $600. Tbe plaintiff’s evidence did not show that the insurance company agreed to such settlements or either of them or that it paid tbe sum agreed upon on account of tbe injury which plaintiff received. In this respect tbe proof was insufficient and fell short of establishing a settlement agreement.

Tbe evidence of Erickson was to tbe effect that- be simply agreed to transmit any proposition for settlement which plaintiff or Grail might make to tbe insurance company, and that he was willing to settle on any basis ivhich was satisfactory to the insurer. He further testified that propositions t'o settle on the basis above stated were made to him and that the insurance company refused to consider the matter of settling with the plaintiff on any such basis.

A written contract' was made between Erickson and the insurance company whereby in consideration of $1,500 the insured agreed to surrender its policy of insurance and to relieve the insurer of all further liability thereon. The contract further provided that the Antigo Lumber Company should employ counsel and defend all personal injury actions pending against it, including those brought by the plaintiff and Grail. Upon the insistence of the insurance company there was paid out of the amount agreed upon to the attorney which the lumber company agreed to employ the sum of $442.18, and there was a further deduction of $57.82 made on account of unpaid premiums on the policy.

At' the time of the surrender of the policy there were three personal injury actions pending against the Antigo Lumber Company, one brought by the plaintiff to recover $3,000 damages, one brought by one Henry Larson to recover $25,000 damages, and one brought by Grail. The amount of damages claimed in the Grail case does not' appear, but it does appear that Grail was willing to settle for $600. It does not appear whether or not there were any other claims of a like nature on which suit' had not been brought.

There was no contractual relation between the injured employees of the Antigo Lumber Company and the insurance company. Stenbom v. Brown-Corliss E. Co. 137 Wis. 564, 119 N. W. 308; Carter v. Ætna L. Ins. Co. 76 Kan. 275, 91 Pac. 178. This being so, the parties to the insurance contract might agree to its surrender and cancellation on such terms as they saw fit. The amount actually paid to the defendants was $1,000. But treating the amount paid to the attorney as a payment to the defendants, still the sum turned over was $157.82 short of the amounts which plaintiff and Grail agreed to accept. Then it was manifest tbat the insurance company by its contract with the insured relieved itself from all liability on tbe $25,000 suit brought by Larson, as well as any other claims that might exist' on account of injuries received by the employees of the Antigo Lumber Company. It denied liability on. account of the Maahs and Grail claims as well as on account of the Larson claim. There was nothing in the contract between the insurer and the insured by which the money paid to the latter was impressed with any trust in favor of any one. Bain v. Atkins, 181 Mass. 240, 63 N. E. 414. It is therefore quite clear that no case was made and no facts existed which would warrant a recovery upon the theory on which one was allowed.

The plaintiff should have been allowed to prove his cause of action in tort. It is not so clear that the complaint states a cause of action against Briclcson. There are of course cases in which the manager of a corporation is equally liable with it for its torts.

The complaint charged that Briclcson was the president and manager of the corporation and had full charge, management, control, and supervision of the erection, construction, and subsequent operation of the sawmill in which the plaintiff was injured; that said Briclcson acting as the president and manager had full and absolute control and supervision of the operation of the sawmill and of assigning employees to operate the various machines thereof and to fill the different positions necessary for operating and running the mill; that it was the duty of the defendants to provide safe and suitable machinery and appliances for the plaintiff’s use and to securely guard all gearing and shafting so located as to be dangerous to the plaintiff in the discharge of his duties; that the defendants provided machinery and appliances in the way of an unguarded gearing which was not safe and in which the plaintiff was. injured. The complaint further set forth that Briclcson was the practical owner of the sawmill, owning all of its stock except two shares which were held by two of the employees of the corporation.

We think, under the liberal rules adopted for the construction of pleadings, these allegations are broad enough to admit proof of facts which would warrant a jury in finding that Erickson was liable to the plaintiff for his injury as well as the Antigo Lumber Company.

The point is made that the order amending the summons and complaint and directing the payment' of $1,500 into court by the defendants cannot be reviewed because no appeal was taken therefrom within the time limited by law and because the same, with the exceptions taken thereto, was not incorporated in the bill of exceptions.

We do not decide that the order was not properly appealed from. It was part of the judgment roll under sec. 2898, St'ats. It could therefore be reviewed on an appeal from the judgment without any exception having been taken thereto. Sec. 2872, Stats.

By the Court. — So much of the order as directed the defendants to pay the sum of $1,500 into court is reversed. The judgment is reversed, and the cause is remanded for a new trial against both of the defendants.