Huck v. Chicago, St. Paul, M. & O. Ry. Co.

• Decision Date: 31 October 1961
• Citation: 14 Wis.2d 445,111 N.W.2d 434
• Parties: Uno Carl HUCK, Plaintiff-Appellant, v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RY. CO., Defendant-Respondent, Doughboy Industries, Inc., et al., Interpleaded Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 434

111 N.W.2d 434

14 Wis.2d 445

Uno Carl HUCK, Plaintiff-Appellant, v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RY. CO., Defendant-Respondent Doughboy Industries, Inc., et al., Interpleaded Defendants-Respondents.

Supreme Court of Wisconsin.

Oct. 31, 1961.

Doar & Knowles, New Richmond, for appellant.

Stafford, Pfiffner & Stafford, Chippewa Falls, for interpleaded defendant-respondent Doughboy Industries, Inc.

FAIRCHILD, Justice.

Sec. 102.29(1), Stats., deals with the right of an injured employee entitled to workmen's compensation and the right of his employer or compensation insurer to make claim or maintain an action against a third party for the injury. Each may proceed, but must give the other notice and an opportunity to join. If notice be given, 'the liability of the tort feasor shall be determined as to all parties having a right to make claim, and irrespective of whether or not all parties join in prosecuting said claim, the proceeds of such claim shall be divided as follows: After deducting the reasonable cost of collection, one-third of the remainder shall in any event be paid to the injured employe or his personal representative or other person entitled to bring action. Out of the balance remaining, the employer or insurance carrier shall be reimbursed for all payments made by it, or which it may be obligated to make in the future, under the workmen's compensation act * * *.'

The order appealed from requires that the proceeds of the settlement of Huck's case be divided in accordance with the statutory formula. Nothing in the statute suggests to us that the court has power to vary the formula without the consent of the parties, nor that the statutory formula applies to 'the proceeds of such claim' when recovered by judgment but not when liquidated by settlement.

Huck argues that such power is to be found in an earlier sentence, 'Each shall have an equal voice in the prosecution of said claim, and any disputes arising shall be passed upon by the court before whom the case is pending, and if no action is pending, then by a court of record or the industrial commission.' We conclude that the 'disputes' referred to are those which may arise with respect to the prosecution of the claim referred to in the earlier portion of the sentence quoted.

This court has held that where one of the parties (in that case, the employe's widow) desires to accept a particular settlement of the claim and the other (there, the compensation insurer) does not, the court has the authority under the sentence quoted to resolve the dispute by compelling the latter to settle even though under the facts of that case proceeds of the settlement were insufficient to reimburse the compensation...