Murray v. Dewar

• Decision Date: 03 February 1959
• Citation: 6 Wis.2d 411,94 N.W.2d 635
• Parties: James T. MURRAY, Adm'r, etc., et al., Plaintiffs, General Accident Fire & Life Assurance Corp., Ltd., Appellant, v. John G. DEWAR et al., Respondents.
• Court: Wisconsin Supreme Court

Page 635

94 N.W.2d 635

6 Wis.2d 411

James T. MURRAY, Adm'r, etc., et al., Plaintiffs General Accident Fire & Life Assurance Corp., Ltd., Appellant, v. John G. DEWAR et al., Respondents.

Supreme Court of Wisconsin.

Feb. 3, 1959.

Arnold, Philipp & Murray, Milwaukee, for appellant.

George D. Young, Milwaukee, John H. Ames, Milwaukee, of counsel, for respondents Dewar and Travelers Indemnity Co.

Lowry & Hunter, Willis J. Zick, Waukesha, for respondents Dewar and Continental Cas. Co.

FAIRCHILD, Justice.

General Accident claims that sec. 102.29(1), Stats. gives it an independent cause of action against Dewar for the amount of the death benefit it paid into the estate of Mrs. Palleck, the employee's widow. It is apparently conceded on all sides that (except for the funeral expenses with which the parties have not concerned themselves on this appeal) there can be no recovery from Dewar for wrongful death under secs. 331.03 and 331.04, Stats. because Mrs. Palleck died and there were no other survivors of Mr. Palleck who could be beneficiaries of a wrongful death action under sec. 331.04. It is clear that if the circumstances had been such as to require General Accident to make a payment into the state treasury on account of Mr. Palleck's death, General Accident would have had a cause of action for reimbursement under sec. 102.29(2) and the non-existence of a survivor who could be a beneficiary of a wrongful death action would be immaterial. General Accident contends that under sec. 102.29(1) the nonexistence of such survivor is equally immaterial. Respondents apparently contend, and the circuit court decided, that any right of action of General Accident under sec. 102.29(1) must fit within an existing liability of Dewar for wrongful death under secs. 331.03 and 331.04. No such liability on Dewar's part can be established under the present circumstances because there were no survivors, except Mrs. Palleck, and liability to her was extinguished upon her death. Eleason v. Western Casualty & Surety Co., 1948, 254 Wis. 134, 35 N.W.2d 301.

General Accident apparently relies upon a sentence contained in sec. 102.29(1) as follows: 'The employer or compensation insurer who shall have paid or is obligated to pay a lawful claim under this chapter shall likewise have the right to make claim or maintain an action in tort against any other party for such injury or death.' If that sentence were read only in connection with the sentence preceding it, which provides in effect that the bringing of a tort action by an employee, personal representative, or survivor for injury or death shall not affect nor be affected by the making of a claim under the workmen's compensation act, the quoted sentence might mean what General Accident says it does. All the following portion of the subsection, however, indicates that the subsection does not impose any liability upon the third party wrongdoer but that, contemplating the liability of the third party wrongdoer already existing for causing injury or death, the subsection provides for a division of the recovery upon that liability between the employee, his personal representative, or survivor plaintiff on the one hand, and the employer or compensation insurer on the other. Each of these plaintiffs is required to give the other an opportunity to join in the 'making of such claim or the instituting of an action.' Each shall have an equal voice in the prosecution of 'said claim'. Irrespective of whether all parties join, the proceeds of 'such claim' are to be divided according to a formula which gives to the employee, personal representative, or survivor plaintiff one-third of the proceeds after deducting the reasonable cost of collection. It would do real violence to the language of the latter portion of the subsection providing for division of the proceeds, with a guaranty of a portion to the employee, his personal representative, or survivor no mater how little be recovered, to say that the subsection creates an independent cause of action in favor of the employer or compensation insurer to recover what it has paid which can exist in the absence of a cause of action for the benefit of a survivor under sec. 331.04.

Our previous decisions have interpreted sub. (1) consistently with what has just been said.

In Wisconsin Power & Light Co. v. Dean, 1957, 275 Wis. 236, 241, 81 N.W.2d 486, 488, we said, citing previous decisions supporting the statement, 'Subsection 1 provides for the division between the employer or insurer and the employee of the proceeds recovered from any such third party and regulates the prosecution of the cause of action. In prosecuting this claim the employer or insurer stands in the shoes of the beneficiary to whom it has paid or is to pay compensation. London Guarantee & Accident Co. v. Wisconsin P. S. Corp., 228 Wis. 441, 279 N.W. 76; Saxhaug v. Forsyth Leather Co., 252 Wis. 376, at page 384, 31 N.W.2d 589; Eleason v. Western Casualty & Surety Co., 254 Wis. 134, at page 140, 35 N.W.2d 301.'

The Eleason Decision made it clear that where the employee was killed by the negligent act of a third party tort feasor, the amount which could be...