Miller Scrap Iron Co. v. Indus. Comm'n

• Decision Date: 11 January 1921
• Citation: 173 Wis. 257,180 N.W. 826
• Parties: MILLER SCRAP IRON CO. ET AL. v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

173 Wis. 257

180 N.W. 826

MILLER SCRAP IRON CO. ET AL.

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

Jan. 11, 1921.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Proceeding for compensation under the Workmen's Compensation Act by Mary Boncher, as widow of Joseph Boncher, the deceased employé, opposed by the Miller Scrap Iron Company, the employer, and the Georgia Casualty Company, the insurer. Compensation was awarded by the Industrial Commission, the award confirmed by the circuit court, and from its judgment, confirming the award and order of the Industrial Commission refusing to vacate the award, the employer and insurer appeal. Judgment affirmed.

This is an appeal from a judgment confirming an award of the Industrial Commission made September 22, 1919, and confirming an order of the Industrial Commission made November 24, 1919, refusing to vacate said award of September 22d. The award was for $3,000 in favor of Mary Boncher and against the Miller Scrap Iron Company and Georgia Casualty Company, as compensation under the Workmen's Compensation Act for the death of Joseph Boncher, husband of Mary Boncher, while in the employ of the Miller Scrap Iron Company. The accident resulting in death occurred in the state of Michigan, where and while Boncher was in the employ of the Miller Scrap Iron Company. The parties were residents of the state of Wisconsin, where the contract of employment was made, and where the principal services under such contract of employment were to be performed. Both parties were subject to the provisions of the Workmen's Compensation Act (St. 1919, §§ 2394--1 to 2394--97).

Shortly after the death of Joseph Boncher, Mary Boncher procured the appointment of an administratrix of his estate in the county court for Brown county, and the administratrix commenced and prosecuted a common-law action against the Miller Scrap Iron Company and Herman Miller, who was superintendent of said company, and who was driving the automobile in which Joseph was riding at the time of the accident, to recover damages for the death of said Joseph Boncher, basing the action upon a statute of the state of Michigan, providing for damages in case of death by wrongful act, similar to our section 4255. A judgment was obtained in the lower court, which was reversed in this court (Anderson v. Miller Scrap Iron Co., 169 Wis. 106, 170 N. W. 275, 171 N. W. 935) as to the defendant Miller Scrap Iron Company for the reason that the liability of said company for the death of Boncher was governed by the terms of the Wisconsin Workmen's Compensation Act. At the request of the plaintiff in that action, and for no other reason, judgment was also reversed as to Herman Miller. The case was remanded to the municipal court of Brown county, where Herman Miller moved to dismiss the action upon its merits as to him. Thereupon the plaintiff in that action tendered the prosecution thereof to the Miller Scrap Iron Company, which was declined. The Miller Scrap Iron Company, as well as the plaintiff, however, resisted the motion to dismiss the action as to Herman Miller, but the motion was granted.

After the decision of this court in the common-law action Mary Boncher applied to the Industrial Commission for compensation. The Miller Scrap Iron Company and the Georgia Casualty Company, its insurer, were made respondents, and they filed separate answers. The substance of the defense made by each of the respondents (appellants here) was that by the commencement of the common-law action by the administratrix of the estate of Joseph Boncher, Mary Boncher had waived her right to compensation under the Workmen's Compensation Act. On September 17, 1919, the Industrial Commission made an award, granting compensation to Mary Boncher in the sum of $3,000. On September 22, 1919, the commission having discovered that part of the first award did not run against the Georgia Casualty Company as well as the Miller Scrap Iron Company, an amended award was made, correcting the error in that respect. On September 27, 1919, the present plaintiffs applied to the Industrial Commission for an order vacating the award, basing the application on the ground that after said amended award, and on the 24th day of September, 1919, the common-law action had been dismissed as to Herman Miller in the municipal court of Brown county, which action prejudiced the rights of these plaintiffs, and which prejudice resulted from the acts of Mary Boncher in having prosecuted the action to judgment and then having such judgment voluntarily reversed as to him. The application was denied. Separate actions were then commenced in the circuit court for Dane county to review the awards of September 17th and 22d and the order refusing to vacate the same. These actions were later consolidated. From a judgment of the circuit court for Dane county confirming the orders and awards of the Industrial Commission, plaintiffs bring this appeal.

Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellants.

John J. Blaine, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Kaftan & Reynolds, of Green Bay, for respondents.

OWEN, J. (after stating the facts as above).

[1] It is appellants' contention that the award made by the Industrial Commission should be vacated and set aside because the prosecution of the common-law action by the administratrix of the estate of Joseph Boncher against the Miller Scrap Iron Company and Herman Miller to recover damages for his death operated as a waiver on the part of Mary Boncher of any claim for compensation against the Miller Scrap Iron Company under the Workmen's Compensation Act (sections 2394--25 to 2394--31, inclusive). Their argument in this behalf is based on the provisions of subdivision 2 of section...