City of Milwaukee v. Roth
| Citation | 185 Wis. 307,201 N.W. 251 |
| Parties | CITY OF MILWAUKEE v. ROTH et al. |
| Decision Date | 09 December 1924 |
| Court | United States State Supreme Court of Wisconsin |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.
Action by City of Milwaukee against Margaret Roth and the Industrial Commission to review an award of compensation to Margaret Roth for injuries to John Roth, her deceased husband. From judgment confirming award, plaintiff appeals. Affirmed.
January 8, 1923, one John Roth, Sr., aged about 60, one of plaintiff city's street department employés, received a substantial injury to his right shoulder. The plaintiff complied with all the provisions of the Workmen's Compensation Act (St. 1923, §§ 102.01-102.41) as to paying medical expenses of and compensation to said Roth up to the time of his death.
March 28th of the same year he had a stroke of apoplexy and died therefrom on April 8th. His widow made application for compensation, and on September 19th the Industrial Commission found that the injuries sustained January 8th caused a permanent partial disability equal to 30 per cent. of a loss of an arm at the shoulder and a total disability which would have extended for a period of 8 weeks and 4 days beyond the date of the said death provided he had lived; that the death was not the proximate result of the said accident, and provided for the payment to the widow of a further sum made up of compensation for such permanent disability, with reduction on account of his age and of the balance on account of the total temporary disability.
This action was brought to review such award and the order of the Industrial Commission being confirmed by the circuit court for Dane county, this appeal has been taken.John M. Niven, City Atty., of Milwaukee, for appellant.
H. L. Ekern, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and C. A. Nelson, of Milwaukee, for respondents.
ESCHWEILER, J. (after stating the facts as above).
The applicant for compensation, the widow of plaintiff's deceased employé, contended before the Industrial Commission that the death of her husband was the result of the injury, and offered evidence tending to support such contention. The Commission however found to the contrary, and no contention is now being made by the widow against such conclusion.
[1][2] Under the Workmen's Compensation Act, upon an injury happening to an employé, there may arise. First, a present claim for compensation on his individual behalf which belongs to him and no one else; second, an inchoate right of action which uponhis death, if the same results from the accident, becomes an absolute claim for compensation separate and distinct from the one accruing to him, and which belongs to the dependents and not to the injured employé. Milwaukee Coke & Gas Co. v. Ind. Com., 160 Wis. 247, 251, 151 N. W. 245. The same law also provides (section 102.09 [4]), that if death occurs to an injured employé other than as a proximate result of the accident before disability indemnity ceases, death benefit shall be as follows:
“* * * (b) Where the accident proximately causes permanent partial disability, liability shall exist for such benefit as...
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