191 Wis. 576 | Wis. | 1927
These actions are brought by father and son to recover damages resulting from the alleged malpractice. They involve the same legal questions, they were briefed and argued together in this court, and will be disposed of in a single opinion.
It appears from the pleadings that the injury, namely, the broken arm, was sustained on or about the 23d day of Sep-témber, 1923 ; that the defendant’s care and treatment ceased on November 30, 1923, and that on June 4, 1924, settlement was made with M. B. Allison and his insurance carrier by which the said Allison and the said insurance carrier were released “from all actions, causes of action and demands of every kind and nature which I now have, claim to have, or may hereafter claim to have against either or both of them arising out of or on account of said injury to said Russell Retelle.” An element of the damages which plaintiff might have recovered against Allison at the time of the settlement with Allison included damages resulting from the improper or unskilful treatment of the broken arm by the defendant. This is well settled in our law. Fisher v. Milwaukee E. R. & L. Co. 173 Wis. 57, 180 N. W. 269. Upon the payments made by Allison, plaintiffs, individually and respectively, discharged said Allison and his insurance carrier “from all actions, causes of action and demands of every kind and nature which I now have, claim to have, or may hereafter claim to have against either or both of them arising out of or on account of said injury to said Russell Retelle.” This is certainly sweeping and all-inclusive. It included that element of damages resulting from defendant’s alleged negligent treatment. The settlement thus made subrogated Allison, or
Respondent seeks to distinguish Hooyman v. Reeve from the instant case on the ground that the release there executed was broader than the release in this case. In that case the claimant acknowledged “full satisfaction and discharge oí all claims,” etc. It did not in terms release any one in particular, while in these cases it is M. B. Allison and his insurance carrier that are released. Neither do the releases here under consideration acknowledge receipt of the money in full satisfaction and discharge of all claims, etc., as did the release in Hooyman v. Reeve. But they do release Allison. Their claims against Allison included the aggravated damages by reason of the alleged malpractice. When Allison discharged his liability to the plaintiffs he became subrogated to the claims which they had against the defendant for such aggravated damages. To permit plaintiffs to recover in these actions would enable them to recover damages twice for the same injuries, and would either deny Allison the right of subrogation or impose double damages upon the defendant. Settled principles of law as well as every consideration of justice require that the demurrers be overruled.
By the Court. — Orders affirmed.