Combined Locks Paper Co. v. Kray

• Decision Date: 12 May 1925
• Citation: 203 N.W. 946,187 Wis. 48
• Parties: COMBINED LOCKS PAPER CO. ET AL. v. KRAY ET AL.
• Court: Wisconsin Supreme Court

187 Wis. 48

203 N.W. 946

COMBINED LOCKS PAPER CO. ET AL.

v.KRAY ET AL.

Supreme Court of Wisconsin.

May 12, 1925.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Proceedings under the Workmen's Compensation Act by Olga Kray for compensation for the death of Fred Kray, employee, opposed by the Combined Locks Paper Company, alleged employer, and the Ætna Life Insurance Company, insurer. From judgment modifying and affirming award of compensation by the Industrial Commission, the employer and insurer appeal. Reversed, with directions.

November 9, 1921, Fred Kray was a driver of a dray truck for Emil A. Buss. On that day, while so employed, he was accidentally killed by a train of the Chicago & Northwestern Railway Company while crossing the tracks of the company.

At such time he was hauling a load of freight for the Combined Locks Paper Company. Buss was a drayman, making regular trips. On that day he had been called on the 'phone by the Combined Locks Paper Company to haul for it the load of freight in question. He had hauled freight for the company before. When he hauled a mixed load for different parties, he had a regular charge of 2 cents per hundred for the trip. When he had a full load, he charged what would be reasonable under the circumstances. This was the condition under which he was doing the hauling on November 9, 1921.

Buss, the Combined Locks Paper Company, and Fred Kray were subject to the Compensation Act. Buss did not carry compensation insurance.

Olga Kray, the widow of Fred Kray, was appointed administratrix of the estate, and as such, on the 17th of October, 1922, she adjusted a claim against the railway company for damages on account of the death of her husband, and gave a release in full to the company as to her claim, both as widow and as administratrix. Thereafter she made application to the Industrial Commission against the Combined Locks Paper Company for compensation under the Compensation Act. The Commission made an award in her favor, which the company and its insurer here contest, claiming that by making claim against the railroad company she waived her claim against the paper company.

Section 2394--25, Stats. 1921, of the Compensation Act, applicable to this case, reads as follows:

“Sec. 2394--25. 1. 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 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 insured may enforce in their own name or names the liability of such other party for their benefit as their interests may appear. If a recovery shall be had against such other party, by suit or otherwise, the compensation beneficiary or beneficiaries shall be entitled to any amount recovered over and above the amount that the employer or insurer, or both, have paid or are liable for in compensation to such beneficiary or beneficiaries, after deducting reasonable cost of collection, and in no event shall the beneficiary receive less than one-third the amount recovered from the third party, less the reasonable cost of collection. Settlements of such claims and the distribution of the proceeds therefrom must have the approval of the court wherein the litigation is pending, or if not in suit, of the industrial commission. The beneficiary shall be entitled to reasonable notice and opportunity to be present in person or by counsel at the approval proceedings. The failure of the employer or compensation insurer in interest to pursue his remedy against the third party within ninety days after written demand by a compensation beneficiary, shall entitle such beneficiary or his representatives to enforce liability in his own name, accounting of the proceeds to be made on the basis above provided.

2. The commencement of an action by an employee against a third party for damages by reason of an accident covered by sections 2394--3 to 2394--31, inclusive, or the adjustment of any such claim, shall operate as a waiver of any claim for compensation against the employer.”

The Industrial Commission found for the widow and awarded compensation. The circuit court on review upheld the award but apportioned...