Sheban v. A. M. Castle & Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: ROSENBERRY
• Citation: Sheban v. A. M. Castle & Co., 185 Wis. 282, 201 N.W. 379 (Wis. 1924)
• Decision Date: 09 December 1924
• Parties: SHEBAN v. A. M. CASTLE & CO.

185 Wis. 282

201 N.W. 379

SHEBAN

v.A. M. CASTLE & CO.

Supreme Court of Wisconsin.

Dec. 9, 1924.

Appeal from Circuit Court, Milwaukee County; Edward T. Fairchild, Judge.

Action by Frank Sheban against A. M. Castle & Co. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to dismiss complaint.

Personal injury. The defendant owns a platform and derrick located on the premises of the Chicago, Milwaukee & St. Paul Railway Company in the city of Milwaukee. The plaintiff was employed by the Cream City Cartage Company, and on the 20th day of July, 1921, while the plaintiff was so employed and assisting in unloading steel beams from cars by the use of the derrick, the northeast corner of the derrick raised so as to allow the steel beams which were being unloaded to drop and fall upon plaintiff's foot, crushing the same, so as to make it necessary to have the foot amputated. It was contended by the defendant upon the trial that the injuries sustained by the plaintiff were the result of his own negligence and the negligence of the Cream City Cartage Company; that the plaintiff had received compensation under sections 2394--3 to 2394--51, Wis. Stats. (Workmen's Compensation Law), and that plaintiff was for that reason barred from maintaining the action, and the defendant company denied any negligence on its part. The Chicago, Milwaukee & St. Paul Railway Company was originally joined as a defendant, but at the close of the plaintiff's case a nonsuit was granted by the court, and there is no appeal from the order granting the nonsuit.

The case was tried to the court and a jury. The jury found: (1) That the derrick was not sufficiently anchored to make the place of employment as safe as the nature thereof reasonably permitted; (2) that such defective anchoring was the proximate cause of plaintiff's injury; (3) that want of ordinary care on the part of the plaintiff proximately contributed to produce his injury; (4) that the Cream City Cartage Company did not fail to exercise ordinary care while operating the derrick; (5) the fifth question was not answered; (6) that at the time of the plaintiff's injury the Cream City Cartage Company was not under instructions from A. M. Castle & Co. not to use the derrick; (7) that the derrick was not overloaded at the time of the injury; (8) the eighth question was not answered; (9) that the defendant failed to exercise ordinary care in anchoring the northeast corner of the derrick; (10) that plaintiff's failure to exercise ordinary care in anchoring the northeast corner of the derrick was the proximate cause of plaintiff's injury; (11) that the Cream City Cartage Company did not know that the derrick was unsafe prior to July 20, 1921; and (12) assessed the plaintiff's damages at $17,000. The court changed the answer to question 11 from “No” to “Yes,” and ordered judgment in favor of the plaintiff and against the defendant for the amount of damages found by the jury less the sum of $5,883, the amount of compensation awarded to the plaintiff by the Industrial Commission of the state of Wisconsin. Judgment was thereupon entered accordingly, from which the defendant appeals.Miller, Mack & Fairchild, of Milwaukee, for appellant.

Joseph A. Padway, William A. Schroeder, George A. Bowman, and Jacob S. Rothstein, all of Milwaukee, for respondent.

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

There were many assignments of error, and the case was thoroughly and exhaustively argued, but we shall make such additional statements only as are necessary to present what we consider to be the decisive questions in this case.

The principal contention of the defendant is that, the plaintiff having received compensation under the Workmen's Compensation Law, the right to recover such compensation being exclusive, he has no other remedy. It appeared without dispute that the Cream City Cartage Company was under the Workmen's Compensation Law, as was the plaintiff, and that compensation had been awarded in accordance with that act in the amount found by the court, $5,883.

This suit was begun under the provisions of section 102.29, Wis. Stats., as follows:

“(1) The making of a lawful claim against an employer or compensation insurer for compensation under sections 102.03 to 102.34, inclusive, for the injury or death of an 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 or insurer may enforce in their own name or names the liability of such other party for their benefit as their interests may appear. If a recovery shall be had against such other party, by suit or otherwise, the compensation beneficiary or beneficiaries shall be entitled to any amount recovered over and above the amount that the employer or insurer, or both, have paid or are liable for in compensation to such beneficiary or beneficiaries, after deducting reasonable cost of collection, and in no event shall the beneficiary receive less than one-third the amount recovered from the third party, less the reasonable cost of collection. * * *

(2) The commencement of an action by an employé or his dependent against a third party for damages by reason of an accident covered by sections 102.03 to 102.34, inclusive, or the adjustment of any such claim, shall operate as a waiver of any claim for compensation against the employer.”

[1] The argument made on behalf of the defendant that a principal contractor who is under the Workmen's Compensation Law is not a “third party” or “other party” within the meaning of this section is very persuasive. A consideration of the terms of the act makes it plain that the Legislature did not intend that those subject to its provisions and who might be liable under it to an injured employé should be liable to such an employé in any other way or to any greater extent than the act provides. By its terms it is exclusive of all other liability (section 102.03) as to those subject to its provisions and within its terms.

By section 102.06, Wis. Stats., it is provided that an employer under the act shall be liable for compensation to an employé of a subcontractor not under the act or who has failed to comply with the provisions of the act relating to insurance as if the employé of such a subcontractor had been working directly for the employer. The purpose of the act is fully set forth in Borgnis v. Falk Co., 147 Wis. 327, 133 N. W. 209, 37 L. R. A. (N. S.) 489, and Milwaukee v. Miller, 154 Wis. 652, 660, 144 N. W. 188, L. R. A. 1916A, 1, Ann. Cas. 1915B, 847. It has also been held by this court that the Workmen's Compensation Law applies even...