Opinion
January 8, 1963 —
March 5, 1963.
APPEAL from a judgment of the circuit court for Kenosha county: M. EUGENE BAKER, Circuit Judge. Affirmed.
For the appellant there was a brief by Kivett Kasdorf, attorneys, and James P. Reardon and Nonald J. Lewis of counsel, all of Milwaukee, and oral argument by Mr. Reardon.
For the respondents there was a brief by Mittelstaed, Heide, Sheldon Hartley of Kenosha, and oral argument by William A. Sheldon.
Action to enforce an alleged settlement agreement was commenced by plaintiff-appellant, American Casualty Company of Reading, Pennsylvania, hereinafter called "American Casualty," against defendants-respondents, Western Casualty Surety Company, hereinafter called "Western Casualty," and William A. Sheldon. The trial court granted respondents' motion for summary judgment dismissing the complaint. Appeal is from that judgment.
On February 16, 1956, James A. Dahl, an employee of Charles Antell, Inc., of Minnesota, in the course of his employment fell while on the premises of Westley A. Robinson, doing business as Robinson's Standard Service Station. An action was commenced in the United States federal district court for the Eastern district of Wisconsin for damages for personal injuries. Because it was not known that Dahl was protected by a workmen's compensation act, no such defense was raised. The action was settled but the industrial commission did not approve the settlement, nor did Judge KENNETH P. GRUBB of the United States district court approve the distribution of the proceeds. Then American Casualty, the workmen's compensation insurer of Charles Antell, Inc., paid certain sums to the latter's employee, James A. Dahl, for the injuries he sustained. Thereafter American Casualty commenced an action in the circuit court for Kenosha county against Westley A. Robinson and his liability insurer, Western Casualty, for $633.56 for payments American Casualty made to Dahl. The basis of the action was that Robinson had violated the safe-place statute.
After the commencement of the action against Robinson, Attorney William A. Sheldon, respondent, appeared generally for Western Casualty. For the purpose of settling this action, negotiations were conducted by Mr. Sheldon and Mr. Nonald J. Lewis, an attorney representing American Casualty. The present action involves the enforcement of an alleged settlement agreement arising during the course of these negotiations.
The negotiations began September 19, 1960. A month later Mr. Lewis wrote to Mr. Sheldon confirming the telephone conversation of September 19, 1960, in which Mr. Sheldon stated he would attempt to determine the position of his Insurance Company and would inform Mr. Lewis of it. No reply to this letter was given, so on November 8, 1960, Mr. Lewis again wrote to Mr. Sheldon relative to this matter. Mr. Sheldon replied to this letter and stated that he had written to Western Casualty to inquire of its intentions with respect to any suggested settlement. He further stated in his reply that he would contact Mr. Lewis as soon as he had heard from Western Casualty. On November 17, 1960, the day after Mr. Lewis received this reply, he again wrote to Mr. Sheldon making further inquiries about a possible settlement.
On November 29, 1960, Mr. Sheldon wrote to Mr. Lewis, stating among other things:
"I am now in receipt of authority to pay Two Hundred Dollars ($200) to close this unfortunate case."
On December 5, 1960, Mr. Lewis contacted Mr. Sheldon by telephone stating $200 was an insufficient settlement and informed Mr. Sheldon that American Casualty would not settle for less than $300.
The following day, December 6, 1960, there was another telephone conversation between them, out of which American Casualty contends settlement was agreed upon.
In his affidavit supporting his motion for summary judgment to dismiss the present complaint, Mr. Sheldon states:
"That on or about the 6th day of December, 1960, your affiant had a telephone conversation with one of the attorneys for the plaintiff, Nonald J. Lewis, in which said attorney indicated the willingness to accept Two Hundred Fifty ($250) Dollars in settlement of the cause of action alleged on behalf of American Casualty Company of Reading, Pennsylvania, against Westley A. Robinson, d/b/a Robinson's Standard Service Station. That on said day your affiant, as attorney for Western Casualty Surety Company, insurer of said defendant, wrote to said insurer advising of the willingness of the plaintiff to accept Two Hundred Fifty ($250) Dollars and recommending payment.
"That in anticipation of the insurer following the recommendation of your affiant releases and stipulation for dismissal were forwarded for execution. That by letter dated December 9, 1960, your affiant was informed that the insurer would not make such payment, which information was promptly forwarded to the attorneys for the plaintiff. That your affiant did not have authority to make such settlement, but only to recommend.
"That the said insurer by contract reserved the right to control litigation and to determine whether or not to make settlement. That no contract was ever made. That your affiant verily believes that there is no cause of action."
Opposing this motion Mr. Lewis in his affidavit states in relation to the telephone conversation in question that a compromise settlement of $250 was arrived at by an agreement for the full and final settlement of this matter.
The release referred to in Mr. Sheldon's affidavit was signed by a representative of American Casualty and by Mr. Lewis, and was returned to Mr. Sheldon with the stipulation and order for dismissal. This stipulation and order were also signed by Mr. Lewis but they were not signed by Mr. Sheldon nor was it made in court and entered in the minutes.
On December 12, 1960, Mr. Sheldon wrote Mr. Lewis telling him that Western Casualty declined to follow Sheldon's recommendation, and on December 13, 1960, Mr. Sheldon returned the signed release and the stipulation and order to Mr. Lewis.
American Casualty did not further prosecute its action against Westley A. Robinson and when that action came on for trial it was dismissed as a default, and judgment was entered on July 24, 1962, dismissing the plaintiff's complaint upon the merits without costs. Thereafter, the present action against Western Casualty and Sheldon was commenced in the circuit court for Kenosha county by American Casualty to enforce the alleged settlement agreement.
After issue was joined Western Casualty moved for summary judgment with supporting affidavits. The motion was opposed by American Casualty, supported by affidavits of its own. The trial court granted the motion, stating that if there was any agreement as alleged by American Casualty it was an oral agreement and was not made in open court upon the minutes. Therefore, the trial court determined that such agreement was invalid under sec. 269.46 (2), Stats., and require the action to be dismissed.
Sec. 269.46 (2), Stats., reads:
"No agreement, stipulation, or consent, between the parties or their attorneys, in respect to the proceedings in an action or special proceeding, shall be binding unless made in court and entered in the minutes or made in writing and subscribed by the party to be bound thereby or by his attorney."
Thereupon judgment was entered dismissing the action and the plaintiff has appealed.
Further facts will be given in the opinion.
If any agreement of settlement of the case American Casualty Co. v. Robinson upon state terms was reached between Mr. Lewis and Mr. Sheldon that agreement clearly did not conform to the requirements of sec. 269.46 (2), Stats., essential to make the agreement binding. Evidently American Casualty recognized this for it did not even present the agreement to the circuit court and ask for judgment upon it. If it had been so presented and the statute called to the court's attention that court would necessarily have had to declare that the alleged agreement was not binding. Therefore American Casualty abandons all effort to enforce the terms of the alleged settlement in the action which the stipulation was designed to settle but seeks to accomplish the identical result by bringing a new action upon the same agreement.
To hold that the settlement, void in its inception, nevertheless provides grounds to declare it valid and to permit recovery upon it is in effect to repeal the statute. Very effectively we would be authorizing a party to do indirectly that which the statute prohibits him from doing directly.
Plaintiff contends, in substance, that it can enforce defendant's promise to pay in a different action and that its right is supported by our decision in Logemann v. Logemann (1944), 245 Wis. 515, 15 N.W.2d 800. In that case plaintiffs had brought action for specific performance of an agreement. While the action was pending an agreement was reached under which plaintiffs agreed to dismiss the action in consideration of a promise by defendants to pay plaintiffs the sum of $50 per month so long as either of them shall live. The action was dismissed on the merits and the first instalment paid but thereafter defendants declined to pay.
In the Logemann Case, supra, we said (p. 517):
"It [sec. 269.46 (2), Stats.] has reference to stipulations directly affecting the course of an action in court and does not control subsequent causes of action on different issues. That the consent to dismissal of a bona fide cause of action is ample consideration to support a new promise is well-settled."
We held the contractual obligation of defendants to make payments during the lives of plaintiffs enforceable in a second action.
We think the Logemann decision was sound, but fundamentally different on its facts. Undoubtedly the oral agreement in that case would not have been binding had it been repudiated before the judgment of dismissal was entered in the original action but by entry of that judgment every part of the agreement pertaining to the original action was fully performed and the executory obligation did not pertain to the proceedings in the first action and was binding although not in writing nor made in court. The agreement in the Logemann Case contemplated an obligation which would exist after the termination of the pending action, while the agreement now before us did not.
We concur in the learned trial judge's decision granting summary judgment.
Appellant contends that the affidavits of respondents in support of their motion for summary judgment were fatally defective because in them affiant states that he believes there is no cause of action rather than following the statutory requirement that the affidavits shall state the moving party believes "that the action has no merit." Sec. 270.635 (2), Stats. For this reason appellant claims it was reversible error to grant the motion for summary judgment. We consider that the learned trial court correctly disposed of that contention as follows:
"The third objection is that defendants' affidavit failed to allege that plaintiff's action had no merit. The affidavit of the defendants did state `that your affiant verily believes that there is no cause of action.' The court deems that a sufficient and substantial compliance with the summary-judgment statute. It does not appear from a reading of the cases cited by plaintiff's counsel that the court requires the use of the exact words of the statute."
While we think that the trial court was correct, we think also that when it is so easy to employ the words of the statute counsel skates unnecessarily on very thin ice in substituting other language in the hope that the trial and the appellate courts will construe counsel's words as substantial equivalents to those used by the legislature. Nor can we welcome additional tasks of construction which would not be imposed on us by an observance of the language of the statutes upon which counsel must rely.
By the Court. — Judgment affirmed.