Opinion
November 2, 1961 —
November 28, 1961.
APPEAL from an order of the circuit court for Milwaukee county: WILLIAM I. O'NEILL, Circuit Judge. Affirmed.
For the appellant there were briefs by George D. Young, attorney, and Theodore L. Priebe of counsel, both of Milwaukee, and oral argument by Mr. Priebe.
For the respondent there was a brief by Backus, Waters McClelland of Milwaukee, and oral argument by Vernon E. Waters.
Travelers Indemnity Company demurred to an affirmative defense pleaded by Home Mutual Insurance Company. The circuit court overruled the demurrer and Travelers has appealed.
Horst Rodde was insured by Travelers against liability arising out of the operations of Rodde's automobile. A certain Irving Felzer was similarly insured by Home Mutual. The automobiles of Rodde and Felzer collided. Mrs. Felzer was a passenger in her husband's car at the time of the collision. About two years after the accident Travelers settled the claims of both Mr. and Mrs. Felzer, taking two releases neither of which reserved any rights of subsequent contribution. The joint release of the husband and wife recited that Helmut Rodde (Horst Rodde's driver), Horst Rodde, the Travelers, Irving Felzer, and Home Mutual are forever released and discharged of all claims which Mr. and Mrs. Felzer have or may have arising out of the aforesaid accident. An independent release of Mr. Felzer's claims was executed by Felzer simultaneously with the joint release executed by Mr. and Mrs. Felzer. This purported to discharge Horst Rodde, Helmut Rodde, and the Travelers from all claims which Mr. Felzer had or might have arising out of the accident.
The releases were on standard forms prepared by Travelers. Very substantial payments were made by Travelers in consideration for the two releases. Travelers has now brought this action against Mr. Felzer's insurer to compel it, Home Mutual, to contribute one half the sums which Travelers paid to Mrs. Felzer in settlement of her claim.
Home Mutual has pleaded the foregoing facts attendant on the execution of the releases and alleges that thereby Travelers is estopped from asserting this cause of action and the release taken from Felzer constitutes a complete accord and satisfaction of Travelers' present claim.
Travelers demurs on the ground that the answer does not set forth facts sufficient to constitute a defense.
In Wm. H. Heinemann Creameries v. Milwaukee Automobile Ins. Co. (1955), 270 Wis. 443, 452a, 71 N.W.2d 395, 72 N.W.2d 102, on rehearing we held that where A and B are parties to an accident and B makes a compromise settlement of A's claim for damages, B is estopped from later asserting his own claim against A unless B expressly reserved that right when concluding the settlement. Further, page 452b, we said: "We consider the better rule to be that the making of the original settlement without any express reservation of rights by the settlor constitutes a complete accord and satisfaction of all claims of the immediate parties to the settlement arising out of the same accident." (Emphasis supplied.)
The trial court's order overruling the demurrer was based upon the Heinemann decision.
Appellant contends that the court should have reached a contrary result, as in Ohio Casualty Ins. Co. v. Nauth (1958), 5 Wis.2d 518, 93 N.W.2d 514, where we did not recognize estoppel as a valid defense. Moen and Nauth had collided. Moen's insurer, Ohio, settled with Nauth and in the release made no reservation of rights. Nauth's mother was a passenger in his car at the time of the collision. Six months after the settlement with Nauth, Ohio settled the claim of the mother for her injuries. Ohio then demanded contribution from Nauth. We held that the release of Ohio by Nauth did not estop Ohio from prosecuting its claim for contribution.
The learned trial court, in the case at bar properly distinguished the Heinemann and the Nauth Cases, pointing out that in the latter the cause of action for contribution did not accrue until approximately six months after the settlement with Nauth when Ohio settled the claims of Nauth's mother and father.
We conclude that the facts of the case at bar bring it within the rule of Wm. H. Heinemann Creameries v. Milwaukee Automobile Ins. Co., supra, rather than Ohio Casualty Ins. Co. v. Nauth, supra. Consequently, appellant's demurrer was correctly overruled.
By the Court. — Order affirmed.