Anderson v. Miller Scrap Iron Co.

• Decision Date: 03 May 1921
• Parties: ANDERSON v. MILLER SCRAP IRON CO. ET AL.
• Court: Wisconsin Supreme Court

176 Wis. 521

182 N.W. 852

ANDERSON

v.MILLER SCRAP IRON CO. ET AL.

Supreme Court of Wisconsin.

May 3, 1921.

Appeal from Municipal Court, Brown County; N. J. Monahan, Judge.

Action by Katherine Anderson, administratrix of the estate of Joseph Boncher, deceased, against the Miller Scrap Iron Company and Herman Miller. From an order dismissing the action as to Herman Miller, the first-named defendant appeals. Modified and affirmed.

Eschweiler, J., dissenting.

This action was commenced to recover damages resulting from the wrongful death of plaintiff's decedent. He was an employé of the Miller Scrap Iron Company. The Miller Scrap Iron Company and the decedent were both residents of Wisconsin. The contract of employment was a Wisconsin contract, and both were under the Workmen's Compensation Act (St. 1919, § 2394--1 et seq.). Death occurred by reason of the overturning of an automobile driven by Herman Miller, an officer of the Miller Scrap Iron Company, in the state of Michigan, while on the way to the performance of certain work for the Miller Scrap Iron Company. Upon appeal the judgment rendered in favor of the plaintiff was reversed by this court in an opinion, to be found in 169 Wis. 106, 170 N. W. 275, 171 N. W. 935, to which reference is made for a more complete statement of the facts of the case. It was reversed as to Herman Miller upon plaintiff's request that, if the judgment should be reversed as to the Miller Scrap Iron Company, it should also be reversed as to Herman Miller. Upon remittitur to the lower court a motion was made on behalf of both defendants to dismiss the action on the merits. No objection was made to the dismissal of the action as to the Miller Scrap Iron Company. The plaintiff and the Miller Scrap Iron Company both objected to the dismissal of the action as to the defendant Herman Miller. The motion, however, was granted, and from the order granting such motion the Miller Scrap Iron Company brings this appeal.Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellant.

Kittell, Jaseph & Young, of Green Bay, for respondent Miller.

OWEN, J. (after stating the facts as above).

After the decision in this case, reported in 169 Wis. 106, 170 N. W. 275, 171 N. W. 935, the widow, Mrs. Boncher, made application for compensation under the provisions of the Workmen's Compensation Act. The industrial Commission made an award in her favor, which award was affirmed by this court in Miller Scrap Iron Co. v. Industrial Commission, 180 N. W. 826. The Miller Scrap Iron Company claims that it has acquired this cause of action and is entitled to continue the prosecution thereof against Herman Miller, that it was aggrieved by the dismissal of the action as to Herman Miller by the lower court, and brings this appeal to secure a reversal of such judgment of dismissal.

For its title to the cause of action set forth in the complaint, appellant relies upon section 2394--25, Stats., which provides:

“The making of a lawful claim against an employer or compensation insurer for compensation under sections 2394--3 to 2394--31, inclusive, for the injury or death of an employé shall operate as an assignment of any cause of action in tort which the employé or his personal representative may have against any other party for such injury or death; and such employer or insurer may enforce in their own name or names the liability of such other party for their benefit as their interests may appear.”

[1] No doubt this statute operates as an assignment of any cause of action that the employé may have against a third party where the employé is the applicant for compensation. It is equally clear that it operates as an assignment of any cause of action existing by virtue of the statutes of this state in favor of the personal representatives of the employé to recover damages for his death where such personal representatives are applicants for compensation. Where the employé is the applicant, the law which entitles him to compensation requires as a condition thereof that such claim be assigned, and when he applies for compensation he consents to the assignment. Then, too, under our prior ruling in this case the Compensation Law enters into and becomes a part of the contract of employment between the employer and employé where both are under the act, “not as a covenant thereof, but to the extent that the law of the land is a part of every contract.” It is a part of the contract of employment, therefore, that in case of injury the employé shall be compensated according to the provisions of the Compensation Act, which provides that any claim the employé may have for damages against third persons stands assigned to the employer upon his paying compensation.

But it is obvious that the employé cannot by contract, in his lifetime, assign a cause of action which the law creates in favor of his dependents, his personal representatives, or his estate to recover damages on account of his death by wrongful act. That is a cause of action created, not for his benefit, but for the benefit of those who survive him. He has no interest therein during his lifetime. It does not accrue until his death. Manifestly he cannot assign that cause of action to any one for the simple reason that he has no interest therein. But, as the Compensation Act becomes a part of his contract of employment, the liability of the employer is fixed by the terms of that act, as held in the prior decision of this case.

Section 4255, Stats., gives rise to a cause of action in favor of the persons therein mentioned for the recovery of damages where death results from the wrongful act of another. Where an employé comes to his death through the wrongful act of his employer, section 4255 must be read in connection with the provisions of...