Nigbor v. Department of Industry, Labor and Human Relations

• Decision Date: 02 October 1984
• Docket Number: No. 82-2357,82-2357
• Citation: 355 N.W.2d 532,120 Wis.2d 375
• Parties: Eugene NIGBOR (deceased), and Glenda Nigbor, Plaintiffs-Appellants-Petitioners, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, Defendant-Respondent and Cross-Petitioner, McQuay Perfex Corporation, Liberty Mutual Insurance Company, and the State of Wisconsin, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 532

355 N.W.2d 532

120 Wis.2d 375

Eugene NIGBOR (deceased), and Glenda Nigbor, Plaintiffs-Appellants-Petitioners, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS,

Defendant-Respondent and Cross-Petitioner,

McQuay Perfex Corporation, Liberty Mutual Insurance Company,

and the State of Wisconsin, Defendants-Respondents.

No. 82-2357.

Supreme Court of Wisconsin.

Argued Sept. 5, 1984.

Decided Oct. 2, 1984.

Richard J. Rathjen, Wautoma, argued, for plaintiffs-appellants-petitioners; Richard J. Dufour and Rudolph, Kubasta, Rathjen & Murach, Wautoma, on brief.

Gordon Samuelsen, Asst. Atty. Gen., argued, for defendant-respondent and cross-petitioner; Bronson C. LaFollette, Atty. Gen., on brief.

Clayton R. Hahn, Milwaukee, argued, for defendants-respondents McQuay Perfex Corp. and Liberty Mut. Ins. Co.; M. Christine Cowles and Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee, on brief.

CALLOW, Justice.

This is a review of a decision ¹ of the court of appeals affirming the judgment of the circuit court for Waushara county, David C. Willis, Judge of Green Lake county presiding, which in turn affirmed an order of the Labor and Industry Review Commission denying worker's compensation benefits for the death of an employee who was killed at work. We affirm the court of appeals.

The issues presented for review are whether the circuit court had jurisdiction over the Labor and Industry Review Commission (Commission) in light of the fact that the caption of the summons and complaint named the Department of Industry, Labor and Human Relations (DILHR) rather than the Commission; and whether, at the time of his fatal injury, the decedent was acting within the course of his employment thereby entitling his spouse to death benefits under the Worker's Compensation Act.

Eugene Nigbor was employed by the McQuay Perfex Corporation as a rap-squeeze molding machine operator. This machine, commonly called a squeezer, consisted of a flat bed upon which sand mold boxes were placed and an overhead arm with a plate which extended over the mold box. The mold box would be filled with sand, and the operator would pull a lever which caused the flat bed to hydraulically move the mold box up about one foot. The mold box would then come in contact with the overhead plate, and the sand would be compressed with great speed and force to make the mold.

On August 18, 1978, Nigbor had worked his regular 6 a.m. to 3 p.m. shift. He and his co-workers also worked an extra shift from 12 a.m. to 8 a.m. on August 19. The accident which caused Nigbor's death occurred at approximately 7:30 a.m. on August 19. While engaging in horseplay, Nigbor put his head between the overhead plate and an empty sand mold box which was resting on the flat bed. He then called to his co-workers to gain their attention and simultaneously waved his arms up and down. His right hand accidentally hit the activating lever of the squeezer. The machine cycled, causing fatal injuries to Nigbor's head and neck.

Glenda Nigbor, Eugene Nigbor's widow, filed an application for worker's compensation death benefits with DILHR. The hearing examiner entered an order on April 20, 1981, dismissing the application, finding that, at the time of his death, Nigbor had not been performing services growing out of and incidental to his employment. This decision was appealed to the Commission which affirmed the examiner's order on August 27, 1981.

On September 24, 1981, Glenda Nigbor commenced an action appealing the Commission's decision. The case was filed in Waushara county circuit court on September 28, 1981. The caption shown on the summons and complaint named DILHR as a defendant but did not name the Commission. The body of the complaint set forth the action taken by the Commission in affirming the examiner's findings. ² The face of the original summons shows that the Commission acknowledged receipt of a copy of the summons and complaint on September 25, 1981. DILHR moved to dismiss the complaint on the ground that the court lacked personal and subject matter jurisdiction because the Commission was not named as a party as required by statute. The circuit court denied the motion to dismiss, concluding that the Commission had been properly served because it did receive a copy of the summons and complaint and that service on DILHR constituted service on all its subdivisions. Reaching the merits of the case, the circuit court affirmed the Commission's findings and the denial of benefits in that the horseplay which caused Nigbor's death was far outside of his normal work activity. The court of appeals affirmed the trial court's judgment, finding that the failure to name the Commission as a party was a technical defect which did not deprive the circuit court of jurisdiction over the Commission and that the Commission's conclusion that the conduct leading to Nigbor's death was a substantial deviation from the course of his employment was reasonable. Glenda Nigbor petitioned this court for review on the denial of benefits, and DILHR petitioned for review on the jurisdictional issue. We granted both petitions.

The first issue we decide is whether the circuit court had jurisdiction over the Commission in light of the fact that it was not named as a party to the action filed by Glenda Nigbor. The procedure whereby an aggrieved party may obtain judicial review of a commission order has undergone several changes over the years. Prior to 1969 all actions for review were commenced against the Commission. In 1969 the statute was amended to provide that actions for review be brought against DILHR. ³ In 1979 the statute was again amended to provide that such actions be brought against the Commission. ⁴ This most recent change in party designation took effect on May 13, 1980, more than a year prior to the issuance of the Commission's order denying benefits for Nigbor's death. While the legislature's election to modify the statute on several occasions may have produced some confusion for aggrieved parties wishing to obtain judicial review, the law was clear in August of 1981 that the Commission, and not DILHR, was the proper party to the action. In addition, Glenda Nigbor also received express notice on how to obtain review of the Commission's decision. ⁵

Section 802.04(1), Stats., sets forth the technical requirements for captions of actions. One requirement is that in the complaint the title of the action shall include the names of all parties. The title of the caption in the complaint filed by Glenda Nigbor did not name the Commission as a party. However, this court has previously held that a caption is not a part of a pleading and that the nature of an action must be determined from the allegations of a pleading rather than its caption. Lees v. ILHR Department, 49 Wis.2d 491, 496, 182 N.W.2d 245 (1971). Even though DILHR rather than the Commission was named in the caption, the body of Mrs. Nigbor's complaint clearly showed that her grievance was against the Commission.

Moreover, in Cruz v. ILHR Department, 81 Wis.2d 442, 260 N.W.2d 692 (1978), we stated that, while we have required strict compliance with the terms of sec. 102.23, Stats., where the pleadings contain an insubstantial and technical defect and the appeal is brought in good faith, it is an abuse of discretion for the trial court to dismiss the action. Id. at 453, 260 N.W.2d 692. In Cruz an action for review was correctly commenced against DILHR within the thirty-day time limit, but the caption of the complaint improperly read "County Court: Milwaukee County" rather than "Circuit Court: Dane County." Id. at 446, 260 N.W.2d 692. The summons and complaint were correctly filed in Dane county circuit court. The trial court had dismissed the action based on the improper caption. We reversed, stating:

"The defects alleged here are of a hypertechnical nature, and the entire tenor of modern law is to prevent the avoidance of adjudication on the merits by resort to dependency on nonprejudicial and nonjurisdictional technicalities."

Id. at 449, 260 N.W.2d 692. We concluded that DILHR had received notice of the action, was completely aware of the claimant's intentions, and was in no way misled by the defect in the caption. Id. at 453, 260 N.W.2d 692.

The basic purpose of the Worker's Compensation Act is to give prompt relief to injured employees who are entitled to compensation. Id. at 449-50, 260 N.W.2d 692. We have repeatedly stated that the Act must be liberally construed to effectuate that policy which the legislature sought to advance by its passage. State v. Industrial Comm., 4 Wis.2d 472, 475, 90 N.W.2d 397 (1958).

There is no question but that the Commission received notice of the Nigbor appeal within the thirty-day period. The face of the original summons filed in the circuit court shows that the Commission acknowledged timely receipt of the summons and complaint. The Commission was aware that the action was pending and was in no way misled. The body of the complaint indicated that Mrs. Nigbor was seeking review of a Commission order. We conclude that the failure to name the Commission in the caption of the complaint was an insubstantial and technical error which did not deprive the trial court of jurisdiction over the Commission. However, even though we have reaffirmed the rule that the nature of an action must be determined from the allegations of the pleading rather than from the caption, Lees v. ILHR Department, supra, 49 Wis.2d at 496, 182 N.W.2d 245, and have termed the defect here to be a hypertechnical one which did not deprive the court of jurisdiction, it is poor practice not to name parties defendant in the caption.

The next issue is whether, at the time of his fatal accident, Nigbor was acting within the scope of his employment so as to entitle his wife to death benefits under the Worker's Compensation Act. Section 102.03(1), Stats., sets forth the conditions of liability under the Act:

"(1) Liability...