City of Milwaukee v. Boynton Cab Co.

• Decision Date: 11 June 1930
• Parties: CITY OF MILWAUKEE v. BOYNTON CAB CO. ET AL.
• Court: Wisconsin Supreme Court

201 Wis. 581

231 N.W. 597

CITY OF MILWAUKEE

v.BOYNTON CAB CO. ET AL.

Supreme Court of Wisconsin.

June 11, 1930.

Appeal from Circuit Court, Milwaukee County; Gustave G. Gehrz, Judge.

On motion for rehearing.--[By Editorial Staff.]

Former opinion modified.

For former opinion, see 229 N. W. 28.John M. Niven, City Atty., and Andrew W. Brunhart, Asst. City Atty., both of Milwaukee, for appellant.

Lines, Spooner & Quarles and Hoyt, Bender, McIntyre & Hoyt, all of Milwaukee, for respondents.

FOWLER, J.

[1] Upon motion for rehearing reargument was ordered on two questions: (1) Was the widow's cause of action for death by wrongful act assigned to the employer by virtue of section 102.29 of the Workmen's Compensation Act? (2) Did the city's payment of the award of the Industrial Commission give it a common-law cause of action against a person negligently causing the death for recovery of the amount paid?

1. Section 331.03, Stats., gives a cause of action to a widow for death of her husband by wrongful act. Section 331.04 provides every such action shall be brought in the name of the personal representative, and that, if there be no cause of action in favor of the estate, the beneficiary (widow) may bring action in her name at her option. Here there was action in favor of the estate. So the widow had no option. The action here had to be brought by the personal representative.

Section 102.29 provides that the making of a lawful claim under the Workmen's Compensation Act against an employer for compensation for injury or death of an employee shall operate as an assignment of any tort action which the employee or personal representative has against any other person for the injury or death.

[2] We are of the opinion upon reconsideration that the action of the widow was assigned. The Compensation Act was passed in 1911. At that time the action of the relative for wrongful death could only be brought by the personal representative. Option to the beneficiary to sue, if there was no action in favor of the estate, was given by chapter 186, Laws 1913. Thus, when section 102.29 was enacted, only the personal representative had any right of action. He had two rights of action, one for the estate and one for the beneficiaries, but both were his and his only to bring. Both causes of action must have been in the mind of the Legislature when they provided for assignment, and it must have been their intention that both were assigned. We should not go afield for reason or excuse for evading or escaping the effect of plain language. Several decisions of the court under facts like those here involved have assumed the cause of action of the widow was assigned. U. S. F. & G. Co. v. Christiansen, 193 Wis. 1, 212 N. W. 660;Saudek v. Milwaukee E. R. & L. Co., 163 Wis. 109, 157 N. W. 579;McGonigle v. Gryphan (Wis.) 229 N. W. 81.The case of Anderson v. Miller Scrap Iron Co., 176 Wis. 521, 182 N. W. 852, 187 N. W. 746, inferentially supports the view of assignability of the widow's claim. The final judgment was for dismissal as to the company “without prejudice,” thus implying that the company on paying the award to the widow under the Compensation Act might bring action against Miller, the tort-feasor who caused the death.

In Combined Locks, etc., Co. v. Ind. Com., 187 Wis. 48, 203 N. W. 946, the holding is that, where a widow sues under the Death Act, she cannot have an award under the Compensation Act. But in the opinion Mr. Justice Crownhart discussed the construction of the provision of the Compensation Act respecting assignment, and said there could be no doubt of its meaning. He said the legislative intent was to allow the employer to recover from the wrongdoer liable for damages under section 4255, the Death Statute, as an offset to the compensation paid up to two-thirds of the recovery; and that the making of a lawful claim by the widow for compensation in that case would have operated as an assignment of her claim and that of her personal representative. While the statement was beside the point of the case, it expressed the writer's considerate opinion on the point here involved and was accepted by the court as manifestly correct. It is in accord with the construction we now give to the statute on mature consideration.

The statements in the original opinion of Mr. Justice Crownhart, so far as in conflict with the above, are withdrawn.

[3][4][5] Contention was made on the original argument and in the briefs that, the widow having died subsequent to payment of the award, the cause of action in her favor abated, and that the plaintiff has no right to proceed with her action. But at common law any cause of action that was assignable survived. Assignability and survivability are convertible terms. 37 Cyc. 636; John V. Farwell Co. v. Wolf, 96 Wis. 10, 70 N. W. 289, 71 N. W. 109, 37 L. R. A. 138, 65 Am. St. Rep. 22. Applying this rule, the statute, by making the widow's claim assignable, made it survive. It made it survive for the benefit of the employer to recoup his payment up to two-thirds of the amount recovered, and for the benefit of the widow to the extent of at least one-third of the recovery. An action thus assigned and that thus survives commenced by the employer cannot wholly abate. It must continue for the benefit of the employer at least. A distinction might perhaps be drawn between such continuance and continuance for the benefit of...