Larsen v. J. I. Case Co.

• Decision Date: 30 January 1968
• Citation: Larsen v. J. I. Case Co., 155 N.W.2d 666, 37 Wis.2d 516 (Wis. 1968)
• Parties: Reinholt LARSEN et al., Plaintiffs, v. J. I. CASE CO., a Wis. corp., Defendant, Korndoerfer Constructions Co., Inc., a Wis. Corp., Defendant-Appellant, Magaw Elec. Co., Wis. corp., Impleaded Defendant-Respondent, Henry Nielsen Iron Works, Inc., a Wis. Corp., Impleaded Defendant.
• Court: Wisconsin Supreme Court

Page 666

155 N.W.2d 666

37 Wis.2d 516

Reinholt LARSEN et al., Plaintiffs, v. J. I. CASE CO., a Wis. corp., Defendant Korndoerfer Constructions Co., Inc., a Wis. Corp., Defendant-Appellant Magaw Elec. Co., Wis. corp., Impleaded Defendant-Respondent Henry Nielsen Iron Works, Inc., a Wis. Corp., Impleaded Defendant.

Supreme Court of Wisconsin.

Jan. 30, 1968.

LaFrance, Thompson, Greenquist, Evans & Dye, Alfred E. LaFrance and Adrian P. Schoone, Racine, for appellant.

Heft, Coates, Heft, Henzl & Bichler, Carroll R. Heft and Robert H. Bichler, Racine, for respondent.

HANLEY, Justice.

The court has repeatedly held that the sole liability of an employer because of the injury of an employee in the course of his employment, either to the employee or to anyone else, is under the Workmen's Compensation Law. Algrem v. Nowlan (1967), 37 Wis.2d 70, 154 N.W.2d 217; Engel v. Bindel (1965), 27 Wis.2d 456, 134 N.W.2d 404; A. O. Smith Corp. v. Associated Sales & Bag Co. (1962), 16 Wis.2d 145, 113 N.W.2d 562. It has been recognized, however, that the rule of no liability of the employer over and above that imposed by the Workmen's Compensation Act does not apply in the case of an express agreement for indemnification.

Magaw contends that since the Workmen's Compensation Act is the exclusive remedy as to it, if Korndoerfer can be held liable to the plaintiff, it will be because of its own separate negligence and that under the rule of Mustas v. Inland Construction Co. (1963), 19 Wis.2d 194, 120 N.W.2d 95, 121 N.W.2d 274, the indemnity contract cannot be construed to require it to indemnify Korndoerfer for the latter's own negligence.

In Mustas the plaintiff, an employee of a subcontractor, sued Froedert-Mayfair, the leaseholder, and Inland Construction Company, the general contractor, for injuries he sustained in falling on ice in a building under construction. Inland and Froedert-Mayfair interpleaded subcontractors F. Rosenberg Elevator Company and Westinghouse Electric Company for indemnification pursuant to a written agreement. The trial court dismissed the suit against Froedert-Mayfair and Rosenberg. Trial was had to a jury on the liability of Westinghouse and Inland to the plaintiff for negligence. The jury found Inland 100 percent negligent. The issue was whether under an express contract of indemnity the indemnitor would be liable if the negligence was solely that of the indemnitee. The court held that it would not because the contract did not specifically provide for indemnification for the indemnitee's sole negligence.

Here, however, there has been no trial. It is not known whose negligence caused the plaintiff's injuries. Magaw in effect is asking the court to declare Mustas applicable in any and all situations where Korndoerfer is negligent. This approach was foreclosed by the decision in Hartford Accident & Indemnity Co. v. Worden-Allen Co. (1941), 238 Wis. 124, 297 N.W. 436, at least insofar as the indemnitor's negligence is the only active negligence in the case. There the Seaman Body Corporation let a contract to Permanent Construction Company to construct a building on its premises. Criswell, an employee of Worden-Allen, one of the subcontractors, touched an iron column being erected by his employer and received an electric shock when a metal cable exteding from the boom of a derrick used in erecting the column either came in contact with the uninsulated wire of a power line maintained by Seaman on the premises or came so close as to cause an arc to form between the wires and the cable. The court stated as follows at pages 128 and 129, 297 N.W. at page 439:

'* * * By the violation of a safety order governing the manner in which its boom was operated in relation to the power wires, Worden was guilty of misconduct having a causal relation to Criswell's injuries, but it sustained no tort liability to Criswell who, as its employee, was entitled only to compensation under the Workmen's Compensation Act. By reason of its failure to move the wires, Seaman sustained a liability to Criswell under the safe-place statute. It is now claimed that plaintiff, which stands in the shoes of Seaman, is not entitled to be indemnified under this contract for any injuries to which Seaman's actual default proximately contributed. We do not consider the contention to be sound. If the indemnity is to mean anything, it must...