Kruse v. Schieve

• Decision Date: 07 April 1976
• Docket Number: No. 657,657
• Citation: 72 Wis.2d 126,240 N.W.2d 159
• Parties: Penny Lee KRUSE et al., Respondents, v. Donald M. SCHIEVE, Appellant, Textile Machinery, Inc., a Foreign Corporation, Defendant. (1974).
• Court: Wisconsin Supreme Court

Page 159

240 N.W.2d 159

72 Wis.2d 126

Penny Lee KRUSE et al., Respondents, v. Donald M. SCHIEVE, Appellant Textile Machinery, Inc., a Foreign Corporation, Defendant.

No. 657 (1974).

Supreme Court of Wisconsin.

Argued March 3, 1976.

Decided April 7, 1976.

Robert C. Leibsle, Elkhorn (argued), for appellant; Godfrey, Neshek, Worth & Howarth, S.C., Elkhorn, on brief.

James E. Brennan, Janesville (argued), for respondents; Campbell, Brennan, Steil & Ryan, S.C., Janesville, on brief.

HEFFERNAN, Justice.

This is an appeal from an order overruling the demurrer to the plaintiff's amended complaint. The defendant Schieve is the vice-president of Monterey Mills, Incorporated. The plaintiff, Penny Lee Kruse, was an employee of that company. This action is brought against Schieve because of his alleged negligence and conduct as a co-employee of the plaintiff Kruse. The industrial accident occurred when the plaintiff's left hand was crushed by the rollers of the textile carding machine that she was employed to operate.

The question presented in this case is whether the complaint sufficiently alleges facts showing that Schieve's negligence was in the course of his duties as a co-employee of Kruse and not in the course of his general supervisory duties as vice-president of the corporation. We conclude that the allegations are sufficient to state a cause of action against Schieve as a co-employee.

This case is before us for the second time. In Kruse v. Schieve (1973), 61 Wis.2d 421, 213 N.W.2d 64, this court held that the facts pleaded were insufficient to allege Schieve's responsibility as a co-employee and directed that the demurrer be sustained. Upon remand, the plaintiff Kruse filed the amended complaint now before us.

In this case, as in the original case, the defendant demurred on the ground that the exclusive remedy of an employee against the employer for a work-related injury was that afforded by the workmen's compensation laws. The defendant argues here, as he did in the earlier case, that all that is alleged is the conduct of Schieve as the vice-president of the corporation and that, because the acts were those of Schieve in the performance of the duties he owed the corporate employer, the cause of action is insufficient. The contention is that the action seeks to circumvent the employer's immunity from common law liability.

In the original case, we clarified the legal question and pointed out that the law permitted a third-party action against an officer of the corporation when that corporate officer was acting as a co-employee and not acting in his capacity as a corporate officer. This holding was based upon a previous decision of this court. Wasley v. Kosmatka (1971), 50 Wis.2d 738, 184 N.W.2d 821. In Kruse Case No. 1 (p. 425, 213 N.W.2d at 66), we said that third-party actions will be permitted 'against corporate officers only when such officer has doffed the cap of corporate officer, and donned the cap of a coemployee.'

We said that the general duty of proper supervision is the duty owed by the corporate officer to the employer and not a duty owed to the fellow employee and that, in order to 'doff the cap of corporate officer,' something extra is needed over and beyond the duty owed the employer.

Although the particular language of Kruse Case No. 1 was not theretofore employed by this court, in Wasley, supra, we held that an officer of the deceased's corporate employer, who at the time was acting in the capacity of a co-employee and not in his capacity as president of the corporation, was subject to a third-party action.

In Pitrowski v. Taylor (1972), 55 Wis.2d 615, 201 N.W.2d 52, we held that officers of a corporation, who were actively engaged in loading a truck and whose conduct was alleged to be negligent, could be subject as co-employees to a third-party liability suit.

The complaint in Kruse Case No. 1 was found to be insufficient, because the complaint alleged that the defendant "was an employee and vice-president' and 'as an employee and vice-president . . . supervised the engineering and maintenance and production in the factory." (61 Wis.2d p. 429, 213 N.W.2d at 68.)

This court held that the allegations were so commingled that it was not clear whether the defendant was acting in his capacity as the representative of the corporate employer or whether he had gone beyond that capacity and departed from that function to assume the actual role of a co-employee. The court also pointed out that the acts of negligence alleged were, in part, based on conduct stemming from the possible status of the defendant as a co-employee. In a collage of mixed culinary metaphors, the court referred to the complaint as an omelet and as a scrambled egg. The case was remanded to the trial court for the preparation of a poached egg.

The amended complaint filed for the purpose of compliance with Kruse Case No. 1 attempts, and we believe with sufficient success, to make clear that at least some of the items of negligence alleged are in respect to Schieve's conduct as a co-employee and not as an officer or representative of a corporate employer.

The complaint alleges in part:

'3. That on information and belief the defendant, Donald M. Schieve, is an adult resident of Janesville, Rock County, Wisconsin, and at all times material herein was employed by Monterey Mills, Incorporated, a Wisconsin corporation, located in Janesville, Wisconsin, said corporation being engaged in the manufacture of textiles; that the said Donald...