355 N.W.2d 532 (Wis. 1984), 82-2357, Nigbor v. Department of Industry, Labor and Human Relations

Docket Nº:82-2357.
Citation:355 N.W.2d 532, 120 Wis.2d 375
Opinion Judge:The opinion of the court was delivered by: Callow
Party Name: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.
Attorney:For the plaintiffs-appellants-petitioners there were briefs by Richard J. Rathjen, Richard J. Dufour and Rudolph, Kubasta, Rathjen & Murach, Wautoma, and oral argument by Richard J. Rathjen.
Case Date:October 02, 1984
Court:Supreme Court of Wisconsin
 
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Page 532

355 N.W.2d 532 (Wis. 1984)

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.

October 2, 1984

Argued Sept. 5, 1984.

Page 533

[Copyrighted Material Omitted]

Page 534

[120 Wis.2d 376] Richard J. Rathjen, Wautoma, argued, for plaintiffs-appellants-petitioners; Richard J. Dufour and [120 Wis.2d 377] 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 [120 Wis.2d 378] 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

Page 535

the action taken by the Commission in affirming the examiner's findings. 2 The face of the original summons shows [120 Wis.2d 379] 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 [120 Wis.2d 380] has undergone several changes over the years. Prior to 1969 all actions for...

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