Employers Mut. Liab. Ins. Co. v. Icke

• Decision Date: 21 June 1937
• Citation: 274 N.W. 283,225 Wis. 304
• Parties: EMPLOYERS MUT. LIABILITY INS. CO. v. ICKE et al.
• Court: Wisconsin Supreme Court

225 Wis. 304

274 N.W. 283

EMPLOYERS MUT. LIABILITY INS. CO.

v.ICKE et al.

Supreme Court of Wisconsin.

June 21, 1937.

Appeal from an order of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Reversed.

This is a special proceeding in an action begun on July 14, 1936, by the Employers Mutual Liability Insurance Company, plaintiff, against George W. Icke, as executor of the last will of John F. Icke, deceased, and Theodore J. Pankow, defendants, to recover pursuant to the provisions of section 102.29, Workmen's Compensation Act, for injuries sustained by one Helen Koch, alleged to have been caused by the negligence of the defendants.

The complaint is in the ordinary form for personal injuries with the proper allegation as to the relation of the insurance carrier to the cause of action. The defendants answered, denying any negligence on the part of the defendants and generally putting in issue all of the allegations contained in the complaint both with respect to negligence and with respect to matters alleged in the complaint leading up to the award before the industrial commission.

The defendants further set up by way of answer that on August 22, 1934, before the commencement of this action, Helen Koch, the injured employee, had released the defendant in consideration of the payment of the sum of $400 from the claimed liability. Upon issue being joined, the defendant served notice of an adverse examination of Helen Koch under section 326.12, Stats. Thereupon the plaintiff moved the court to suppress the examination on the ground that Helen Koch was not within the provisions of section 326.12. There were counter affidavits, and upon the hearing of the motion the court ordered that the examination be quashed and held that Helen Koch would not participate in any of the proceeds recovered in the action; that as a consequence the action was not brought for her “immediate benefit”; and also held that Helen Koch was not an assignor of the cause of action asserted by the plaintiff and therefore not subject to examination as an assignor. This order was dated October 12, 1936, and from it the defendants appeal.Gilbert, Ela, Heilman & Raeder and G. Burgess Ela, all of Madison, for appellants.

Richmond, Jackman, Wilkie & Toebaas, of Madison, for respondent.

ROSENBERRY, Chief Justice.

The determination of the questions raised upon this appeal depends upon the interpretation to be placed upon section 102.29, Wis.Stats., which is set out in the margin.¹

A history of this section is helpful in determining what the Legislature intended to do by its enactment. In the original act the provisions relating to third party claims were embodied in section 2394-25 (St.1911). This section merely provided that the making of a claim by an employee for compensation should operate as an assignment of any cause of action which the employee might have had against a third party.

It was amended by chapter 599 of the Laws of 1913 to provide that making of a claim by an employee against a third party should operate as a waiver of any claim for compensation under the act. It was again amended in 1917 (chapter 624) so as to permit an employee to maintain an action for malpractice against any physician or surgeon. In 1919 (chapter 680) it was amended to provide that the employee should be entitled to the benefit of any recovery over and above the amount paid by the employer or insurance carrier and making certain regulations in respect thereto. In 1923, the provisions relating to workmen's compensation were embodied in chapters 101 and 102, and section 2394-25 became section 102.29. The section was also amended in minor particulars.

Down to 1931, section 102.29 retained the provision respecting assignment of claim to the employer or insurer under the Workmen's Compensation Act. In 1931 (chapters 132, 403, 469), the section was amended as it now is. The tendency disclosed by an examination of the various amendments and revisions was toward increasing rights of the injured employee in any recovery made by the employer or insurance carrier against a third party. By the amendment in 1931, the employer and insurance carrier were no longer regarded as assignees nor was the employee regarded as an assignor. An independent right of action was given under the conditions stated in the statute to the employer and insurance carrier. No doubt this was done in an effort to avoid the legal implications involved in the transaction denominated an assignment and to prevent in cases where the employer or insurance carrier did not assert a claim against a third party, the necessity of a reassignment to the injured employee in order to entitle the employee to maintain the action. See Swanson v. Lake Superior T. & T. R. Co. (1928) 195 Wis. 633, 219 N.W. 274.

Upon the hearing of the motion to suppress, the trial court was of the view that section 102.29(2) must be construed to mean that only where the compensation claimant joins in the tort action by the insurer and all claims are cleaned up at once is such claimant entitled to one-third of the excess of the compensation award. While the statute as amended in 1931 gave the...