Guse v. A. O. Smith Corp.

• Decision Date: 08 January 1952
• Citation: 51 N.W.2d 24,260 Wis. 403
• Parties: GUSE, v. A. O. SMITH CORP.
• Court: Wisconsin Supreme Court

Page 24

51 N.W.2d 24

260 Wis. 403

GUSE, v. A. O. SMITH CORP.

Supreme Court of Wisconsin.

Jan. 8, 1952.

Action brought by Frederick F. Guse against the defendant A. O. Smith Corporation to recover damages sustained by him for loss of consortium with his wife, Mary F. Guse, as the result of personal injuries sustained by her in the course of her employment by the defendant. In connection with other defenses, defendant alleged in answer to plaintiff's complaint that his wife made claim against defendant under the Workmen's Compensation Act and had received and was accepting benefits under that Act from defendant and its Workmen's Compensation insurer; and that her recovery of said benefits constitutes the exclusive remedy against defendant by her or her dependents, including the plaintiff, for any injuries received by her while performing services in her employement by defendant. As a second defense, defendant alleged that no written notice was served on defendant, and plaintiff's action was not brought nor a complaint actually served on defendant within two years after the date of the injury of plaintiff's wife which caused the damages referred to, as required by sec. 330.19(5), Stats. Upon the matters thus pleaded, defendant moved for a summary judgment dismissing plaintiff's complaint and after hearing the parties in relation to said defenses, the court granted defendant's motion on grounds alleged by defendant; and thereupon judgment was entered dismissing plaintiff's action. He appealed from the judgment.

Lecher, Michael, Spohn, Best & Friedrich, Milwaukee, Herman E. Friedrich and Roy C. La Budde, Milwaukee, of counsel, for appellant.

Quarles, Spence & Quarles and Porter, McIntyre, Johnson & Cutler, Milwaukee, Kenneth P. Grubb, James D. Porter, Edmund W. Powell and James N. Johnson, Milwaukee, of counsel, for respondent.

FRITZ, Chief Justice.

It is undisputed that plaintiff's wife was employed by defendant and in the course of her employment, she was injured on May 9, 1944, through negligence of the defendant's employees; and that she suffered a broken back and a severed spinal cord, causing permanent and total paralysis of her body from that point downward. Defendant and its Workmen's Compensation insurer are paying Workmen's Compensation benefits to her or for her benefit as provided in chap. 102, Stats.,--the Workmen's Compensation Act (hereinafter called the Act)--including medical, surgical, hspital and nursing expenses and indemnities; and they have paid an aggregate of $56,837.46 under the Act.

Plaintiff contends that the Act has not extinguished an action for loss of consortium by the husband of an injured employee; that the husband's cause of action alleged in his complaint is separate and distinct from the wife's action for her personal injury and is not derived from his wife's cause of action, and therefore it is immaterial that the defendant is the employer of his wife under the Act; and that the Act does not constitute the exclusive remedy of employees or other beneficiaries who are entitled to pursue that remedy, and does not affect rights of third parties in a separate action against the employer.

The only section in the Act directly involved in this case is sec. 102.03, Stats., and particularly subsection (2) thereof, which provides: 'Where such conditions (defining compensable injury) exist the right to the recovery of compensation pursuant to the provisions of this chapter shall be the exclusive remedy against the employer.'

That provision does not state that the remedy under the Act is exclusive against an employer with respect to merely the claims of an employee, nor with respect to merely the claims of any particular class of persons. The Act from the time of its enactment as Chapter 50, Laws of 1911, until its revision in 1931, definitely negated any such construction by virtue of the express provision of the original enactment in sec. 2394-4, Stats.1911, to wit: 'Liability for the compensation hereinafter provided for, in lieu of any other liability whatsoever, shall exist against an employer for any personal injury accidentally sustained by his employe, and for his death'.

That language was deleted by a Revisor's Bill, Chapter 403, Laws of 1931. However, the Revisor's Note in 1931, appended as a footnote to sec. 102.01, Stats.1933, states: 'This revision of chapter 102 of the statutes is for the purpose of clarifying and simplifying the language, improving the arrangement, omitting unnecessary words, repealing expressly provisions which have been impliedly repealed by later enactments, and facilitating the finding and citing its various provisions. The meaning of the chapter remains the same as before. It is the intention to change the verbiage without changing the law.'

Consequently the Act continues to have the legal effect of sec. 2394-4, Stats.1911, notwithstanding the 1931 revision, because revisions of statutes do not change their meaning unless the intent to change the meaning necessarily and irresistibly follows the changed language. State v. Maas, 246 Wis. 159, 16 N.W.2d 406; City of Milwaukee v. Milwaukee County, 236 Wis. 7, 294 N.W. 51.

In enacting the Act, the legislature intended to impose upon employers an absolute liability, regardless of fault; and in return for this burden, intended to grant employers immunity from all tort liability on account of injuries to employees.

In Borgnis v. Falk Co., 147 Wis. 327, 337, 354, 133 N.W. 209, 211, 37 L.R.A., N.S., 489, the court, in November, 1911, stated of the then recent enactment:

'The Legislature, in response to a public sentiment which cannot be mistaken, has passed a law which attempts to solve certain very pressing problems which have arisen out of the changed industrial conditions of our time. It has endeavored by this law to provide a way by which employer and employed may * * * escape entirely from that very troublesome and economically absurd luxury known as 'personal injury litigation,' and resort to a system by which every employe * * * may receive at once a reasonable recompense for injuries accidentally received in his employment under certain fixed rules, without a lawsuit and without friction.'

'The * * * employer * * * can never be mulcted in heavy damages, and will know whenever on employe is injured practically just what must be paid for the injury. Surely this is a different situation from the situation of the man who is liable to be brought into court by an injured employe at any time and obliged to defend common-law actions upon heavy claims unliquidated in their character, the outcome of which actions none can foretell.' 133 N.W.2d page 217.

In Anderson v. Miller Scrap Iron Co., 169 Wis. 106, 110, 170 N.W. 275, 276, 171 N.W. 935, the court stated:

'It is true that the liability of the employer at common law was that of a wrongdoer, and therefore tortious in its nature. * * * It does not necessarily follow, however, that the principles applicable to torts should be applied to the liabilities of the employer under the act. * * *

'The liability of the employer under the Workmen's Compensation Act is not only one of an entirely different nature, but it is based upon a wholly different economic theory. * * *

'The liability of the employer under the act is not tortious, and is not contractual in the sense that it should be considered as a covenant or part of the contract; but it is purely statutory. * * *

'By the law of this state, when an employer enters into a contract with an employe, both being within its terms, in the event of injury to the employe, the employer becomes liable therefor in the manner and to the extent prescribed by the Workmen's Compensation Act, and he has no other or different liability. The right of the employe to recover the compensation provided for by the act is exclusive of all other remedies against the employer for any injury which the employe may sustain, and in the event of his death the same limitation applies to his personal representatives.'

Likewise in Knoll v. Shaler, 180 Wis. 66, 69, 192 N.W. 399, 400, the court stated: 'By legislative declaration, there has been grafted on the relation of employer and employe under the circumstances prescribed by statute (sec. 2394-3; in 1943, sections 102.03(1) and 102.03(2), Wis.Stats.1943), certain rights and liabilities in case of accidental injury to the employe. As has been many times stated, this is a substitute for the liability of the employer at common law. * * * It seems clear therefore that, when the Legislature provided by section 2394-3 that the compensation under the act 'shall be the exclusive remedy against the employer for such injury or death,' it was intended to include, and did include, all injuries for which the employer might be liable at common law by reason of his failure to exercise ordinary care or comply with valid statutory requirements relating to the conditions of employment as well as those resulting from pure accident or negligence of the employe or a fellow servant.'

Thus this court has consistently construed the Act as substituting an employer's statutory liability and has upheld the employer's immunity from all tort liability granted by the Act; and has repeatedly refused to permit that immunity to be impaired or circumvented.

In Deluhery v. Sisters of St. Mary, 244 Wis. 254, 12 N.W.2d 49, 50, the father of a minor daughter who was injured in the course of her employment brought an action to recover from her employer expenses incurred by the father for medical attention, hospitalization, and nursing, and he contended that he had a common-law right which was not barred by sec. 102.03(2) of the Workmen's Compensation Act. The court found that the minor and the defendant were employee and employer subject to the Act, and in referring to sec. 102.03(2), the court stated:

'Under this language the only liability of the defendant to the minor employee was to compensate her...