Pawlak v. Hayes

• Decision Date: 22 February 1916
• Citation: 156 N.W. 464,162 Wis. 503
• Parties: PAWLAK v. HAYES.
• Court: Wisconsin Supreme Court

162 Wis. 503

156 N.W. 464

PAWLAK

v.HAYES.

Supreme Court of Wisconsin.

Feb. 22, 1916.

Appeal from Circuit Court, Chippewa County; James Wickham, Judge.

Action by Steve Pawlak, by guardian, against Charles A. Hayes. From an order sustaining a demurrer to his complaint, plaintiff appeals. Order reversed, and cause remanded, with direction to overrule the demurrer.

Action to recover damages for malpractice. Plaintiff alleges that on the 5th day of March, 1914, while in the employ of the John S. Owen Lumber Company, a log rolled onto him, and he sustained a fracture of the leg, that he employed the defendant to treat him for the injury, and that by reason of the negligence and lack of skill of the defendant in the treatment given him within a couple of weeks after the injury and subsequent thereto the leg was improperly set and treated to the damage of plaintiff. The complaint further alleges that at the time of the injury both plaintiff and his employer, the John S. Owen Lumber Company, were under the provisions of the Workmen's Compensation Act, and that plaintiff made a claim against his employer under the act, and received compensation and part of his medical expenses from March 5 to about August 20, 1914; that as soon as he discovered the negligence of the defendant he refused to accept any more compensation from his employer, and he offers to return the same or so much thereof as the court may adjudicate. The defendant entered a general demurrer to the complaint, and from an order sustaining the same, the plaintiff appealed.A. L. Smongeski, of Stevens Point, for appellant.

Markham, Freeman & Cudahy, of Milwaukee, and Timothy Brown, of Madison, for respondent.

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

[1] The circuit court sustained the demurrer to the complaint on the ground that, when plaintiff filed a claim against his employer, his cause of action for the injury received and the proximate results thereof were assigned to his employer by virtue of subdivision 1 of section 2394--25, which reads as follows:

“The making of a lawful claim against an employer for compensation under sections 2394--3 to 2394--31, inclusive, for injury or death of his employé shall operate as an assignment of any cause of action in tort which the employé 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.”

It is quite evident from the reading of this subdivision that it contemplates the existence at the same time of two remedies either of which the employé may pursue. He may invoke the statutory remedy against his employer, or the common-law remedy against the third person who by his negligence caused or contributed to his injury. McGarvey v. Independent O. & G. Co., 156 Wis. 580, 146 N. W. 895. It is equally obvious that these two remedies must coexist in order to give the employé an election. That the statute contemplated an election is made clear by subdivision 2 of the same section, which provides that:

“The making of a claim by an employé 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.”

Thus, while the statute gives the employé the option of pursuing either remedy, it deprives him of all rights under the one he does not pursue as soon as he makes his election by assigning to the employer his cause of action against the...