Bergren v. Staples

• Court: Wisconsin Supreme Court
• Writing for the Court: FRITZ
• Citation: Bergren v. Staples, 263 Wis. 477, 57 N.W.2d 714 (Wis. 1953)
• Decision Date: 31 March 1953
• Parties: BERGREN et al. v. STAPLES et al.

Page 714

57 N.W.2d 714

263 Wis. 477

BERGREN et al. v. STAPLES et al.

Supreme Court of Wisconsin.

March 31, 1953.

Crawford, Crawford & Cirilli, Superior, for appellant.

Larsen & Gradin, Superior, for Beatrice Bergren.

Hughes, Anderson & Davis, Superior, for Staples, Guy Pardun and Gen. Cas. Co. of Wisconsin.

Powell & Sprowls, Superior, for Northern Supply & Fuel Co. and Aetna Cas. & Surety Co.

FRITZ, Chief Justice.

The plaintiffs in this action are Beatrice B. Bergren, the widow of Richard Bergren; and the Liberty Mutual Ins. Co., the compensation insurer of Marsch Construction Co., the employer of Richard Bergren. The defendants are Wayne Staples, and his employer Guy Pardun, the owner of the truck operated by Staples; the General Casualty Company of Wisconsin, the automobile liability insurer of Guy Pardun. Northern Supply and Fuel Co. and its insurer, Aetna Casualty and Surety Co., were also named defendants on the theory that Staples was acting as their agent and employee at the time of the accident. The two groups of defendants and their respective insurers cross-complained against the others for contribution.

Richard Bergren was killed while working for the Marsch Construction Co., in Douglas County, Wisconsin, in charge of directing the unloading of trucks on a highway construction job. The facts attending his death are not in dispute on this appeal, and the sole question to be decided is whether or not the trial court had the power under sec. 102.29(1), Stats. to order the payment of $5500 to Beatrice Bergren and Liberty Mutual Ins. Co. in settlement of their claims against the defendants for the death of Richard Bergren. It is undisputed that Liberty Mutual Ins. Co. is entitled to prosecute this action along with the widow of the decedent by virtue of sec. 102.29(1), Stats., which is entitled, 'Third party liability', and which reads in part as follows:

'The employer or compensation insurer who shall have paid or is obligated to pay a lawful claim under this chapter shall likewise have the right to make claim or maintain an action in tort against any other party for such injury or death.'

Under the policy which Liberty Mutual Ins. Co. had issued to Marsch Construction Co., proceedings were had under the Wisconsin Compensation Act, which resulted in an award in favor of the widow against Liberty Mutual Ins. Co. in the amount of $10,457.48, together with burial expenses in the sum of $300. Thereupon, by order of the court on March 17, 1952, Liberty Mutual Ins. Co. was made a party plaintiff to the action, which originally had been commenced by Beatrice Bergren against the third party tort-feasor.

When the case was called for trial, and a jury was selected, the court was informed of the offers of judgment which the two defendant insurance companies had made to the plaintiffs; namely $4,750 by the General Casualty Co. on behalf of Wayne Staples, and $750 by Aetna Casualty and Surety Co. on behalf of Northern Supply and Fuel Co. The relative positions of the respective parties were stated to the court, and Liberty Mutual Ins. Co. objected to the acceptance of the offer of $5500 and contended that the provision in sec. 102.29(1), Stats. which expressly permits the court before whom the action is pending to pass upon disputes arising out of the prosecution of claims under said statute, was not applicable to the situation in this case, or if in the alternative it were applicable, it was an unconstitutional delegation of power to the court. Consequently, Liberty Mutual Ins. Co., considering the offer insufficient, refused to join in a release which the defendants had demanded as a condition of their offer of judgment.

Sec. 102.29(1), Stats. provides in part as follows:

'The making of a claim for compensation against an employer or compensation insurer for the injury or death of an employe shall not affect the right of the employe, his personal representative, or other person entitled to bring action, to make claim or maintain an action in tort against any other party for such injury or death, hereinafter referred to as a third party nor shall the making of a claim by any such person against a third party for damages by reason of an injury to which sections 102.03 to 102.64 are applicable, or the adjustment of any such claim, affect the right of the injured employe or his dependents to recover compensation. * * * Each shall have an equal voice in the prosecution of said claim, and any disputes arising shall be passed upon by the court before whom the case is pending * * *.'

The trial court construed said provisions as authorizing the court to require the employer, who is in this case represented by Liberty Mutual Ins. Co., to join in accepting the offer of settlement. It is our conclusion that as the case at bar presents a situation where there is pending a dispute which has arisen before the trial court, that the court is authorized by that section quoted above to require the employer to join in an offer of settlement.

Appellant contends that the court erred in construing the statute as it did, for in doing so, the appellant was denied the right to a trial by jury and the right to insist upon what would have been awarded to appellant at the close of the trial; and if sec. 102.29(1), Stats. be given that construction, it is repugnant to the Wisconsin Constitution, in that it deprives appellant of a trial by jury. That contention cannot be sustained. If the employer would have had the right, in the absence of statute, to sue for the death of the employee, then it might be successfully argued that any enactment on the part of the legislature to authorize the court to compel a settlement, would be an unconstitutional delegation of power to a court. This court has held, however, in such cases as Marshall-Jackson Co. v. Jeffery, 167 Wis. 63, 166 N.W. 647; and Patitucci v. Gebhardt, 206 Wis. 358, 240 N.W. 385, that an employer is not subrogated to the rights of an employee who is injured by a third person. Applying that rule to the case at bar, it is apparent that Liberty Mutual Ins. Co., as insurer of the employer, would have no cause of action against the defendants were it not for the statutory provision in sec. 102.29(1), Stats., which enables the compensation insurer to bring such action in tort after he has paid, or has become obligated to pay a lawful claim under the statute. Appellant's contention that such cause of action as is authorized by sec. 102.29(1) is not a new cause of action created by statute, simply because it does not create any new responsibility or liability in tort for the damages sustained, is based upon a specious line of reasoning. Liberty Mutual Ins. Co. contends that the cause of action in question is to be measured by the sole consideration of the extent of liability of the third party tort-feasor. It does not take into consideration the factor of who may sue the third party tort-feasor. While it is true that the employer or his compensation insurer, and the...