Employers Mut. Liability Ins. Co. of Wis. v. Mueller

• Decision Date: 07 November 1956
• Citation: 79 N.W.2d 246,273 Wis. 616
• Parties: EMPLOYERS MUTUAL LIABILITY INS. CO. OF WISCONSIN, a Wisconsin corporation, Respondent, v. Mrs. Donald MUELLER et al., Appellants.
• Court: Wisconsin Supreme Court

Page 246

79 N.W.2d 246

273 Wis. 616

EMPLOYERS MUTUAL LIABILITY INS. CO. OF WISCONSIN, a Wisconsin corporation, Respondent, v. Mrs. Donald MUELLER et al., Appellants.

Supreme Court of Wisconsin.

Nov. 7, 1956.

Wilcox & Sullivan, Eau Claire, for appellants.

Genrich, Terwilliger, Wakeen, Piehler & Conway, Wausau, for respondent.

BROWN, Justice.

Appellants assert that the question is novel and has not been previously decided in Wisconsin and they submit that the comparative negligence statute, sec. 331.045, is available to them as a partial defense to the present action. That statute is:

'Comparative negligence; when bars recovery. Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering.'

Plaintiff-respondent replies that prior decisions of this court control us now, relying in great measure on Western Casualty & Surety Co. v. Shafton, 1939, 231 Wis. 1, 283 N.W. 806, 285 N.W. 408; Standard Surety & Casualty Co. of New York v. Spewachek, 1939, 233 Wis. 158, 288 N.W. 758; and Verhelst Construction Co. v. Galles, 1931, 204 Wis. 96, 235 N.W. 556. In those actions, as appellants point out, contributory negligence of the person injured or killed was not present, wherefore the point now in issue was not involved and was not determined. However, those decisions do establish that sec. 102.29(2), Stats., is constitutional and that the cause of action given by it is an independent one. Whether it was dictum or not, in the Western Casualty & Surety Co. v. Shafton case, supra, 231 Wis. at pages 6 and 7, 285 N.W.2d at page 408, we did say:

'The statutes quoted in the opinion give an 'independent action' to the plaintiff to recover the money paid by it into the state treasury. They say the money so paid may be recovered from a third-party tortfeasor. So saying carries the implication that all of it shall be recovered, independent of the amount recoverable by the beneficiaries under the death by wrongful act statute. A priori he may recover it all.'

'* * * The contributory negligence statute does not by its terms purport to constitute a partial defense against recovery of money paid by Hoffer which another statute provides Hoffer must pay, and which another statute provides Shafton must reimburse Hoffer.'

Appellants rely principally on Employers Mut. Liability Ins. Co. v. De Bruin, 1955, 271 Wis. 412, 73 N.W.2d 479, 481, arguing that we then held that the statutory action is a common law suit in tort, from which they reason that all defenses applicable to actions against tort-feasors, and particularly the defense of comparative negligence, are available to them to reduce the amount recoverable by respondent. One Kieffer was employed by Post, a corporation, which carried its workmen's compensation insurance with the Employers Mutual Liability Insurance Company. Kieffer was killed when struck by De Bruin's automobile. The compensation insurer paid $3,000 into the state treasury as directed by sec. 102.49(5), Stats., and then brought action under sec. 102.29(2), Stats., against De Bruin and his automobile liability carrier for reimbursement. The liability carrier moved for summary judgment dismissing the complaint against it (but not against its insured) because its policy excluded from coverage any obligation for which De Bruin or his insurer might be held liable under any workmen's compensation law. We said that the policy exclusion did not apply to these facts. De Bruin was not Kieffer's employer nor liable to him for workmen's compensation. His...