London Guarantee & Accident Co. v. Wis. Pub. Serv. Corp.

• Decision Date: 12 April 1938
• Citation: 279 N.W. 76,228 Wis. 441
• Court: Wisconsin Supreme Court
• Parties: LONDON GUARANTEE & ACCIDENT CO. v. WISCONSIN PUBLIC SERVICE CORPORATION.

228 Wis. 441

279 N.W. 76

LONDON GUARANTEE & ACCIDENT CO.

v.WISCONSIN PUBLIC SERVICE CORPORATION.^*

Supreme Court of Wisconsin.

April 12, 1938.

Appeal from an order of the Circuit Court for Oconto County; Arold F. Murphy, Judge.

Affirmed.

Action brought by the plaintiff, London Guarantee & Accident Company, against the defendant, Wisconsin Public Service Corporation, to recover the amount which plaintiff paid, as the compensation insurer, upon an award by the Industrial Commission of death benefits because of the death of Jerome W. Seale, who was killed, as the result of alleged negligence of the defendant, while he was working as an employee of the Lucia Construction Company. The defendant demurred to the complaint on the ground that the action was not commenced within the time limited by section 330.21, Stats. The court sustained the demurrer, and the plaintiff appealed from an order to that effect.

Lehner & Lehner, and Adolph P. Lehner, all of Oconto Falls (James H. Larson, of Shawano, of counsel), for appellant.

Shaw, Muskat & Paulsen, of Milwaukee (F. H. Prosser, of Milwaukee, of counsel), for respondent.

FRITZ, Justice.

The plaintiff appealed from an order sustaining a demurrer to a complaint on the ground that it appears upon the face thereof that the action was not commenced within the two-year period prescribed by section 330.21, Stats., for the commencement of an action to recover damages sustained by reason of the death of a person which was caused by the wrongful act, neglect, or default of another. The plaintiff commenced this action in July, 1937. It alleges in its complaint that it seeks to recover $5,000 paid by it, as a compensation insurer, pursuant to an award made on September 2, 1932, by the Industrial Commission for death benefits on account of the instantaneous death of Jerome W. Seale on August 9, 1932, while he was working as an employee of Lucia Construction Company; that Seale's death was caused by the defendant's negligence in maintaining certain high voltage wires, and that by reason of plaintiff's payment of the death benefits it is the owner of the cause of action complained of to the extent of the sum paid, and has been subrogated in the place and stead of Seale's widow pursuant to the provisions of section 102.29 (2), Stats.; and that on August 8, 1934, it served a notice of claim for damages upon the defendant in which it stated that in consequence of the latter's “negligent conduct *** in the maintenance of said wire claim is made against them for the death of said Jerome W. Seale.”

The statutory provisions, because of which the court held that the cause of action upon which the plaintiff seeks to recover was barred, by reason of its failure to commence this action within two years after the accrual thereof, provide:

“330.15 *** The following actions must be commenced within the periods respectively hereinafter prescribed after the cause of action has accrued.”

“330.21. Within two years: *** (3) An action brought by the personal representatives of a deceased person to recover damages, when the death of such person was caused by the wrongful act, neglect or default of another.”

Plaintiff contends that that two-year limitation is not applicable because this is not an action brought by it as the personal representative of the deceased; but is an action to enforce an independent cause of action, which is created by and became vested in it under section 102.29 (2), Stats., as a compensation insurer, upon its payment of the award for death benefits. In support of that contention the plaintiff relies upon the statement in relation to section 102.29 (2), Stats. (as amended in 1931), in Employers Mutual Liability Co. v. Icke, Wis., 274 N.W. 283, 285, that, “An independent right of action was given under the conditions stated in the statute to the employer and insurance carrier.” But plaintiff apparently disregards the statements in connection therewith that, “While the statute as amended in 1931 gave the employer or the insurance carrier a right of action, it nevertheless remained derivative in its nature. It is apparent that the employer or insurance carrier would have no cause of action against a third party unless in the first instance a cause of action existed in favor of the employee against the third party.”

There is no provision in section 102.29 (2), Stats., which expressly creates any new responsibility or liability in tort for damages sustained upon the death of a person as the result of the wrongful act, neglect, or default of another. The effect of the amendment of subsection (2) of section 102.29, Stats., in 1931, so as to read, “An employer or compensation insurer who shall have paid a lawful claim under this chapter for the injury or death of an employee shall have a right to maintain an action in tort against any other party responsible for such injury or death,” is but to authorize an employer or compensation insurer, who has paid such a lawful claim, to maintain an action in tort against “any other party responsible” under some other statute or rule of law “for such injury or death.”

[1] Inasmuch as no new or additional responsibility or liability on the part of such “other party” is created or imposed upon that party by that amendment, it cannot be held that a new cause of action to recover on any such new or additional responsibility or liability was intended to be created by that amendment. It does vest in...