City of Milwaukee v. Boynton Cab Co.

• Decision Date: 08 February 1930
• Court: Wisconsin Supreme Court
• Parties: CITY OF MILWAUKEE v. BOYNTON CAB CO. ET AL.

201 Wis. 581

229 N.W. 28

CITY OF MILWAUKEE

v.BOYNTON CAB CO. ET AL.^a1

Supreme Court of Wisconsin.

Feb. 8, 1930.

Appeal from an order of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Circuit Judge. Reversed in part; affirmed in part.

Action begun November 21, 1927; order entered May 2, 1929.

This is an appeal from an order overruling plaintiff's demurrers to defendants' pleas in abatement.

This action is brought by the city of Milwaukee, under the provisions of section 102.29, Stats., to recover damages growing out of certain personal injuries sustained by one John Hayes, an employee of the city, and his subsequent death resulting therefrom, which said injuries were sustained while said Hayes, in the course of his employment as a street cleaner for the city, was at work in an alley and was injured because of a collision between a taxicab owned by the defendant, Boynton Cab Company, and operated by the defendant Ladke, and a motor truck owned and operated by the defendant Wauer. The other defendants are insurance carriers. Claim having been made under the Workmen's Compensation Law against the city by the widow of said Hayes, and an award having been entered by the Industrial Commission in favor of the widow, the city brought this action under the provisions of the above-mentioned statute.

After answers had been interposed by the various defendants, the widow of said John Hayes died. Thereupon the various defendants interposed amended answers and pleas in abatement. These pleas in abatement set forth that, because of the death of the widow of said John Hayes, any cause of action which she had for the alleged wrongful death of her husband abated and did not survive, and, therefore, any cause of action which the city might have because of such injuries and wrongful death likewise abated and did not survive. To these pleas in abatement the plaintiff demurred.

The case was argued in the trial court on the demurrers of the plaintiff to the pleas in abatement set forth by the various defendants. The court overruled the demurrers. Plaintiff appealed.John M. Niven, City Atty., and Andrew W. Brunhart, Asst. City Atty., both of Milwaukee, for appellant.

Lines, Spooner & Quarles and Hoyt, Bender, Trump, McIntyre & Hoyt, all of Milwaukee (Eugene L. McIntyre and Chas. B. Quarles, both of Milwaukee, of counsel), for respondents.

CROWNHART, J.

It appears from the order overruling the demurrers and the briefs of counsel that the matters submitted to the trial court for decision were only the demurrers to the pleas in abatement, although the demurrers are broad enough to include the general defense. We are therefore considering only the ruling of the court on the pleas in abatement.

The complaint was evidently drafted on the theory that the causes of action of the plaintiff depended upon the provisions of the Workmen's Compensation Act, and particularly upon section 102.29 of the statutes, which reads as follows: “(1) The making of a lawful claim against an employer or compensation insurer for compensation under sections 102.03 to 102.34, inclusive, for the injury or death of an employee shall operate as an assignment of any cause of action in tort which the employee 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. * * *”

The Compensation Act makes the employer liable to his workmen for accidents to the workmen growing out of the employment, irrespective of questions of negligence. The Workmen's Compensation Act, however, seeks to relieve the employer or compensation insurer where the injury to his employee has grown out of the negligence or tortious act of a third party, by assigning to the employer or compensation insurer the right of action which the employee has against such third party for the benefit of the employer or compensation insurer, to the extent provided by statute, and for the benefit of the employee, as provided by statute. The employer or compensation insurer, as the case may be, may enforce in his own name the liability of such third party for the benefit of the parties as their interests may appear. In such action the statute contemplates that the employer or insurer shall carry on the action as trustee for the injured employee or his representatives, to the extent that their interests appear, and account to them for any money that may be collected for them. Under the statute one-third of the recovery goes to the injured employee or his representatives.

The statute says that “the making of a lawful claim against an employer or compensationinsurer for compensation * * * for the injury or death of an employee shall operate as an assignment of any cause of action in tort which the employee or his personal representative may have against any other party for such injury or death.”

Under the death statutes of 1898, §§ 4255 and 4256, it was provided that the action given by section 4255 should be brought by the personal representative of the deceased, but by the amendment of 1913 it was provided: “That if there be no cause of action in favor of the estate of such decedent and the person or persons to whom the whole amount sued for and recovered belongs * * * shall be the husband, widow, or parent or parents of the deceased, suit may at his or her or their option be brought directly in his or her or their name or names instead of being brought in the name of the personal representative of such deceased person.” (Laws 1913, c. 186).

This amendment is significant of ...