Opinion
No. 57.
Argued June 4, 1974. —
Decided June 28, 1974.
APPEAL from an order of the circuit court for Milwaukee county: ROBERT W. LANDRY, Circuit Judge. Appeal dismissed.
For the appellant there were briefs by Eisenberg Kletzke, of Milwaukee, and oral argument by Jerome F. Pogodzinski, of Milwaukee.
For the respondent there was a brief by Simarski, Goodrich, Brennan Stack, attorneys, and Charles W. Collins of counsel, all of Milwaukee, and oral argument by Mr. Collins.
This is an action by the plaintiff, Robert A. Aspenleiter, against defendant, William Beaudoin Sons, Inc., to recover for personal injuries sustained when a Milwaukee Suburban Transport Corporation bus slid or skidded into a parked truck in which the plaintiff was seated.
Plaintiff initially commenced an action against the impleaded defendants, Thomas E. Gaynor and Milwaukee Suburban Transport Corporation. This action was tried to a jury and, on April 17, 1969, a verdict was returned finding no negligence on the part of the defendant transport company. Additionally, the jury determined that the plaintiff had incurred damages of $2,500 for past pain and suffering; $1,622.72 for past loss of earnings and $236 for past medical and hospital expenses. The jury also found the plaintiff had not incurred any permanent injury to his neck as a result of the bus collision.
Upon motions after verdict, the trial court sustained the findings of the jury. Such findings, the trial court held, were properly supported by evidence to the effect that the cause of the loss of control of the defendant bus driver was an oily substance which had just previously been sprayed on the road surface by William Beaudoin Sons, Inc., a Wisconsin corporation. Beaudoin was not joined in the prior action. The trial court also found that the jury's findings as to damages in general and the finding that the plaintiff had not sustained any permanent injury in particular were supported by the evidence.
The plaintiff thereafter commenced the instant action against the defendant, William Beaudoin Sons, Inc., for damages incurred as a result of the collision. Beaudoin answered the complaint, denied liability and impleaded the Milwaukee Suburban Transport Corporation asking for contribution. The transport company then moved for summary judgment as to the third-party complaint on the grounds that the issue as to the transport company's negligence had been previously determined by a jury. The transport company's motion for summary judgment was granted. This judgment was not appealed.
Thereafter, William Beaudoin Sons, Inc., moved the court for an order liquidating damages in the amount previously found by the jury in the prior action, $4,358.72. This motion was sustained and the court ordered that damages be so liquidated and that the issues at trial be limited solely to those of liability. From this order the plaintiff appeals.
The issue presented on this appeal is whether or not a nonparty defendant can invoke a prior jury determination of damages sustained as res judicata as to that issue in a subsequent action. However, a preliminary question arises as to whether the order of the circuit court was appealable.
While the issue of appealability was not raised by the parties herein, such must be raised by this court on its own motion and, if said order is determined to be nonappealable, the appeal must be dismissed. United States v. Burczyk (1972), 54 Wis.2d 67, 194 N.W.2d 608. When an order appealed from is nonappealable, the supreme court is without jurisdiction to entertain the appeal and dismissal is required. Estate of Hillery (1970), 46 Wis.2d 689, 176 N.W.2d 376.
The order of the trial court liquidating damages is not an appealable order. Appealable orders are delineated by sec. 274.33, Stats. Sec. 274.33 (1) limits the appealability, of orders to those
". . . affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken." As such, all three statutory conditions as delineated by sec. 274.33 (1), Stats., must exist for such order to be appealable. The order liquidating damages does not herein qualify under sec. 274.33 (1). The order does not prevent the taking of a judgment from which an appeal may be taken.
The wisdom of such a statutory limitation as to those orders which are appealable under sec. 274.33 (1), Stats., is obvious. Any determination on appeal as to the validity of an order liquidating damages is of dubious value until a determination of liability is made. If the trier of fact upon remand of a decision in the instant action determines that William Beaudoin Sons, Inc., was not liable for the plaintiff's damages, this court has rendered a needless determination. If, on the other hand, the appeal in the instant action is dismissed and if the trier of facts determines that Beaudoin is liable for those damages liquidated by the court, this court would have jurisdiction (sec. 274.01) to either affirm or reverse the action of the trial court.
It cannot be contended that the order of the trial court liquidating damages to those determined by a jury in a previous action is an interlocutory judgment. An interlocutory judgment, as defined in sec. 270.54, Stats. must substantially dispose of the merits of the case. Northland Greyhound Lines v. Blinco (1956), 272 Wis. 29, 74 N.W.2d 796. Such an interlocutory judgment must determine whether any duty or liability presently exists. Glens Falls Ins. Co. v. Concrete Research (1973), 57 Wis.2d 744, 205 N.W.2d 165. Since the order of the trial court liquidating damages does not in any way determine whether the defendant Beaudoin had any duty or liability to the plaintiff, such an order cannot be determined to be an interlocutory judgment.
The order of the trial court likewise is not appealable under any other subsection of sec. 274.33, Stats. We conclude that the appellant is not entitled to appeal from the order liquidating damages.
By the Court. — Appeal dismissed.