McGarvey v. Indep. Oil & Grease Co.

• Decision Date: 09 April 1914
• Citation: 146 N.W. 895,156 Wis. 580
• Parties: MCGARVEY v. INDEPENDENT OIL & GREASE CO.
• Court: Wisconsin Supreme Court

156 Wis. 580

146 N.W. 895

MCGARVEY

v.INDEPENDENT OIL & GREASE CO.

Supreme Court of Wisconsin.

April 9, 1914.

Appeal from an Order of the Circuit Court for Milwaukee County; Oscar M. Fritz, Circuit Judge. Affirmed.

Plaintiff, a servant of the Harley-Davidson Motor Company, while in the course of his employment, was injured by actionable negligence of defendant. Plaintiff made a lawful claim for his injury under the Workmen's Compensation Act (St. 1913, §§ 2394--1 to 2394--31). Such claim was settled and, thereby, the Motor Company succeeded to plaintiff's right against defendant. Thereafter, for a sufficient consideration, such company, in due form, assigned such claim to plaintiff who commenced this action to enforce it. These facts were duly alleged. Defendant demurred for insufficiency and defect of parties plaintiff, in that the Harley-Davidson Company was not joined. The demurrer was overruled and defendant appealed. Affirmed.Julius E. Roehr, of Milwaukee, for appellant.

William L. Tibbs, of Milwaukee, for respondent.

MARSHALL, J.

It is conceded, as the fact is, that, in case of an employee, in the course of his employment, being injured by the actionable negligence of a third person, a statutory remedy accrues to him for compensation, against his employer and a common law remedy against such third person, though he cannot have but one satisfaction. If he elects to pursue the latter remedy he waives the statutory right, and if he elects to pursue the former, the employer by succession,--ipso facto et eo instanti,--becomes the owner of the right against the wrongdoer and “may enforce the same in his own name.” The statute (section 2394--25) thus provides:

“The making of a lawful claim against an employer for compensation under sections 2394--1 to 2394--31, inclusive [the Workmen's Compensation Law], for the injury or death of his employee shall operate as an assignment of any cause of action in tort which the employee or his personal representative may have against any other party for such injury or death; and such employer may enforce in his own name the liability of such other party.”

“2. The making of a claim against a third party for damages by reason of an accident covered by sections 2394--3 to 2394--31, inclusive, shall operate as a waiver of any claim for compensation against the employer.”

[1] In case of the employer becoming, in the manner indicated, the owner of a claim for injury to his employee, is such right a mere personal possession of a remedy for protection against loss growing out of the statutory liability, or is it a property right which the employer may deal with the same as an ordinary thing in action,--personally, judicially enforce it or assign it, affording the assignee, as the real party in interest, the right to proceed as legal owner?

In a broad sense, such a claim as the one we are dealing with is a mere chose in action. Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17, 6 L. R. A. 553. It is an incorporeal thing, resting in action,--remediable by an ordinary judicial remedy, as distinguished from a thing in possession. It is assignable and survivable. Lehmann v. Farwell, 95 Wis. 185, 70 N. W. 170, 37 L. R. A. 333, 60 Am. St. Rep. 111;Nemecek v. Filer & Stowell Co., 126 Wis. 71, 105 N. W. 225;Brown v. Chicago & N. W. Ry. Co., 102 Wis. 137, 77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579.

Thus it will be seen that an ordinary claim for damages for a tortious injury to the person, notwithstanding it was otherwise at common law, is a property right which may pass by assignment or operation of law, with the incidental right to a judicial remedy, by and in the name of, the real party in interest, to enforce it. That is the thing which, under section 2394--25, Stats., in the circumstances there mentioned, is waived or becomes possessed by the employer, according to the facts.

In providing that the right of the...