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Kennedy-Ingalls Corp. v. Meissner

Supreme Court of Wisconsin
Oct 6, 1959
98 N.W.2d 386 (Wis. 1959)


September 10, 1959 —

October 6, 1959.

APPEALS from two orders of the circuit court for Milwaukee county: FRANCIS X. SWIETLIK, Circuit Judge. Order granting a new trial reversed with directions; order denying motion for summary judgment affirmed.

For the appellant Kennedy-Ingalls Corporation there were briefs by Whyte, Hirschboeck, Minahan, Harding Harland, attorneys, and Victor M. Harding of counsel, all of Milwaukee, and oral argument by Victor M. Harding.

For the appellant A. O. Smith Corporation there was a brief by Porter, Johnson, Quale Porter, attorneys, and James N. Johnson and Irving W. Zirbel of counsel, all of Milwaukee, and oral argument by Mr. Zirbel.

For the respondents there were briefs by Michael Klein and Arnold, Philipp Murray, all of Milwaukee, for the Associated Sales Bag Company, and by Rosenbaum Rosenbaum and Arnold, Philipp Murray, all of Milwaukee, for Roland E. Meissner, and oral argument by Mr. Suel O. Arnold and Mr. Klein.

The action is one for breach of warranty and for subrogation to a part of the recovery for the breach. The action was before this court on appeal reported in Kennedy-Ingalls Corp. v. Meissner (1958), 5 Wis.2d 100, 92 N.W.2d 247. Briefly stated, the defendants Meissner and Associated Sales Bag Company are identical in interest in so far as may be material to this appeal. The defendants sold to plaintiff Kennedy-Ingalls Corporation a quantity of industrial aprons. The plaintiff resold the aprons to intervenor plaintiff A. O. Smith Corporation. Hereinafter the parties will be referred to simply as "Meissner," "Kennedy," and "Smith." In the course of its industrial operations Smith issued one of these aprons to its employee James. Unknown to Kennedy, Smith, or James the apron was inflammable. It caught fire while James was using it in the work which he was performing for Smith and for which the apron was intended. James was badly burned.

Smith paid James workmen's compensation of $17,527.49. James then sued Kennedy for damages as a third-party tortfeasor. Such an action is permitted by sec. 102.29, Stats. If James should recover damages the same statute provides that one third of the damages, after deducting the cost of collection, shall be his, but before there is any further distribution to James out of the remainder Smith shall be reimbursed for the workmen's compensation payments which Smith has made or may be liable for. Thus James, Smith, and Kennedy were each interested in the third-party tort action which James commenced. These three parties negotiated a settlement of the suit whereby Kennedy paid James $17,500 and Smith released its claim without payment to it. In the three-party settlement Kennedy and Smith gave mutual releases of the claims which they had asserted against each other growing out of the injury to James.

After that Kennedy began the present action against Meissner for breach of warranty. In this Kennedy sought to recover from Meissner Kennedy's expense in defending the suit instituted by James and the amount paid to James to settle his claim.

Smith then moved to intervene as a party plaintiff in the Kennedy v. Meissner action, asserting that Smith had been subrogated to a part of Kennedy's cause of action against Meissner. The trial court denied Smith's motion and Smith appealed. The material facts and the outcome of the appeal are reported in Kennedy-Ingalls Corp. v. Meissner, supra. Our decision reversed the trial court and our opinion stated that on the allegations of Smith's complaint Smith had an absolute right to participate in the breach-of-warranty action for the protection of Smith's own interests.

Upon the argument of the appeal just referred to, the supreme court was informed that the breach-of-warranty action between Kennedy and Meissner was on the circuit court calendar and would be reached for trial within a few days. An application to the supreme court was made to stay proceedings until the court should determine the intervention motion, but that court denied a stay.

The Kennedy v. Meissner case came on for trial in circuit court before the supreme court had determined that Smith must be allowed to intervene in that action. In circuit court the parties, Kennedy and Meissner, appeared with counsel and stated that they were ready to proceed with trial as scheduled. They informed the trial court that as yet there was no supreme court decision concerning Smith's right to intervene but that the issues between Kennedy and Meissner, which were the warranty, the breach thereof, and the amount of resulting damage, did not require the presence of Smith in that part of the trial, and that the separate issues of Smith's subrogation rights and the subrogated amount, if any, could be tried separately after the warranty questions now ready for trial should be disposed of, if later the supreme court's decision should say that Smith has rights as an intervening plaintiff.

Both Kennedy and Meissner urged the trial court to proceed immediately and on their representations the court did so. Trial was had to a jury and by a special verdict submitted in great detail Kennedy won a complete victory with findings that Meissner had warranted the aprons for the use for which Kennedy had resold them, the warranties were breached, and the resulting damage to Kennedy was $10,500 for settling the James action, plus some other expense.

Before the trial court reached argument on motions after verdict the decision in Kennedy-Ingalls Corp. v. Meissner, supra, had been announced. Smith, as an intervening plaintiff, then filed a formal waiver of its right to participate in the preceding trial of the warranty issues and consented to be bound by the result of that trial. Nevertheless, the learned trial court interpreted the decision of Kennedy-Ingalls Corp. v. Meissner, supra, to require him to grant a new trial in which Smith must participate as an intervening plaintiff. Therefore the trial court set aside the verdict and granted a new trial and declared that it was unnecessary to rule on the other motions after verdict.

Kennedy has appealed from the order granting the new trial. It also submits that the verdict is in obvious error when the verdict found $10,500 was the amount paid to James in settlement, whereas the undisputed evidence showed the amount to be $17,500. Kennedy asks this court to make the correction.

The appeal by Smith is from an order of the circuit court denying Smith's motion for summary judgment against Meissner.

When the supreme court determined Smith's right to intervene as a party plaintiff in the action, Smith served a complaint alleging facts upon which Smith asserted rights gained by subrogation against Meissner. Meissner demurred to the complaint. Before the trial court ruled upon the demurrer Smith moved for summary judgment. In support of the motion Smith made an affidavit largely based upon the facts determined by the verdict in the breach-of-warranty action and the amount which Smith had contributed to the settlement with James. In opposition the affidavit in behalf of Meissner states numerous conclusions of law but contains few, if any, evidentiary facts. Embodied in one order the trial court denied the motion for summary judgment and overruled Meissner's demurrer to Smith's complaint, giving Meissner seven days in which to answer. Smith has appealed.

New Trial.

We consider that the learned trial court misinterpreted the effect of Kennedy-Ingalls Corp. v. Meissner, supra, in its application to the facts as they appear at and after the trial. On page 109 of that opinion we said that although Smith did not necessarily have to be made a party in order for the trial court to adjudicate the issues raised by Kennedy's complaint and the answers of the two defendants, it is absolutely essential for Smith to be made a party for the protection of Smith's own interest. The reasons given there need not now be repeated. But the right granted is for Smith's own protection. It is not granted to protect the rights of the original two parties.

Determination of the issues between Kennedy and defendants is not necessary, or may not be necessary, for Smith's presence. In the conference between the trial court and the attorneys for Kennedy and Meissner, both counsel agreed that the issues between them did not require Smith's participation. Not only were they willing to go ahead without Smith's presence but they urged the court to do so and with that understanding the trial court proceeded with the trial.

The court asked counsel if there would be complications if the supreme court might decide that Smith should have been made an intervening party. Plaintiff's counsel said that the only consequence would be a trial later of the issues. between Smith and Meissner. Our decision in the first appeal confirmed Smith's right to be a party for its own protection but that does not mean that Smith is prohibited from waiving any or all of the rights so given it. Smith has filed a waiver of participation in the trial between Kennedy and Meissner and abides by the result of that trial.

With knowledge of the fact of a pending supreme court decision, the two original parties stipulated to continue without Smith. If the supreme court had confirmed Smith's right to participate and Smith then demanded recognition of its right to participate at the trial we would have a different question. A new trial might then be required to give to Smith the opportunity to speak its piece. But that is not what happened. The parties stipulated to proceed without Smith and now Smith has made formal waiver of its right to be present and participate in the trial and to be bound by the result.

We see no reason because of anything we have said in Kennedy-Ingalls Corp. v. Meissner, supra, to require a new trial under these circumstances. The prior consent of two of the parties and the later consent by the third should be carried into effect. Therefore the order granting a new trial is reversed.

Numerous motions were made after verdict upon which the trial court did not rule because, in his view, they were superseded by the order for the new trial. These motions shall now be considered and determined by the trial court. We will not attempt to anticipate his decision.

Summary Judgment.

The summary-judgment statute, sec. 270.635, is silent concerning the time when a motion for it may be made and we find no help in the annotations to the statute. But there are many cases setting forth the reason for which the summary-judgment statute was enacted. It is to avoid unnecessary delay or protracted delay in cases where there can be no issue of fact for trial. It is primarily to discourage dilatory pleading. It is not meant to cut off the statutory right to plead. We consider that a motion for summary judgment is premature when the court has pending before it a demurrer and the party against whom the motion is made is not in default in serving his complaint or answer.

We conclude that the trial court properly denied Smith's motion for summary judgment. Smith may, of course, move again for summary judgment when Meissner has answered the complaint.

By the Court. — Order for new trial reversed, and cause remanded with directions to proceed with motions after verdict, not inconsistent with this opinion. Order denying motion for summary judgment affirmed, and cause remanded for further proceedings according to law.

Summaries of

Kennedy-Ingalls Corp. v. Meissner

Supreme Court of Wisconsin
Oct 6, 1959
98 N.W.2d 386 (Wis. 1959)
Case details for

Kennedy-Ingalls Corp. v. Meissner

Case Details

Full title:KENNEDY-INGALLS CORPORATION, Plaintiff and Appellant, v. MEISSNER and…

Court:Supreme Court of Wisconsin

Date published: Oct 6, 1959


98 N.W.2d 386 (Wis. 1959)
98 N.W.2d 386

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