Skornia v. Highway Pavers, Inc.

• Court: Wisconsin Supreme Court
• Writing for the Court: HALLOWS
• Citation: Skornia v. Highway Pavers, Inc., 34 Wis.2d 160, 148 N.W.2d 678 (Wis. 1967)
• Decision Date: 28 February 1967
• Parties: Paul R. SKORNIA, Plaintiff-Respondent, v. HIGHWAY PAVERS, INC., Defendant-Appellant, Allan Axt, Defendant-Respondent.

Page 678

148 N.W.2d 678

34 Wis.2d 160

Paul R. SKORNIA, Plaintiff-Respondent, v. HIGHWAY PAVERS, INC., Defendant-Appellant Allan Axt, Defendant-Respondent.

Supreme Court of Wisconsin.

Feb. 28, 1967.

Prosser, Zimmermann & Wiedabach, Milwaukee, for appellant.

Sidney Spector, Milwaukee, for plaintiff-respondent.

Niebler & Herro, Milwaukee, Chester J. Niebler, Milwaukee, of counsel, for defendant-respondent.

HALLOWS, Justice.

Since we decide the trial court was in error in not allowing Highway Pavers to call the witnesses adversely under sec. 885.14, Stats., and this case must be sent back for that purpose, we do not reach or intimate any opinion upon the merits of the determination of the status of Axt at the time of the accident for the purpose of applying the doctrine of respondeat superior.

We think the compensation carrier who paid compensation benefits to Skornia is 'a person for whose immediate benefit' the action by Skornia was prosecuted, and as such is subject to have its officers, agents and employees called adversely by the alleged tort-feasor under sec. 885.14.

An injured employee under sec. 102.29(1), Stats., is entitled to seek recovery from a third party tort-feasor even though he has received workmen's compensation benefits. However, the employer or the compensation insurer who has paid workmen's compensation benefits likewise has a right to make a claim or maintain an action in tort against the third party tort-feasor. Such parties may join in the same suit and have an equal voice in its prosecution, but regardless of who are party plaintiffs or who commences the suit against the third party the proceeds, after deduction of a reasonable cost of collection must be divided between the injured employee and the payor of the compensation benefits in the manner provided in that section. The suit commenced by Skornia was as much for the immediate benefit of the compensation carrier as it was for Skornia's since they both directly share the proceeds of any recovery. Consequently, one does not have to be a named party to the suit in order to be 'a person for whose immediate benefit' the action is brought. This was decided on converse facts and the injured employee was held to be a person for whose immediate benefit the action was prosecuted in a suit commenced only by the compensation carrier against the third party tort-feasor. Employers Mut. Liability Ins. Co. v. Icke (1937) 225 Wis. 304, 274 N.W. 283. The Icke Case involved sec. 326.12, Stats.1935, now sec. 887.12, Stats., relating to adverse examinations before trial, but the language of that section at the time of the decision is similar to the present language in sec. 885.14 (formerly sec. 325.14), Stats., governing calling witnesses adversely at the trial.

The respondents contend this error cannot be raised because Highway Pavers did not make an offer of proof for the excluded testimony of Nance and rely on Findorff v. Findorff (1958), 3 Wis.2d 215, 226, 88 N.W.2d 327. But, the court did not exclude Nance's testimony; it refused to allow Highway Pavers to call Nance as an adverse witness which is quite a different thing, even though it resulted in the exclusion of evidence. Nor do we think the argument that Highway Pavers sought to conduct a discovery proceeding at trial is meritorious. The examination of a witness adversely before trial is not a condition precedent to his being examined as an adverse witness at trial. The case of Kablitz v. Hoeft (1964), 25 Wis.2d 518, 131 N.W.2d 346, does not support the respondents' argument. That case held it was error to permit an orthopedic surgeon to be called adversely at the trial because he was not the agent of the defendant insurance company but pointed out under sec. 326.12, now 887.12, Stats., as amended in 1961, the doctor could have been adversely examined before trial.

We think the court also erred in not allowing Highway Pavers to call Allan Axt as an adverse witness. The test of who is an adverse party within the meaning of sec. 885.14(1), Stats., is not determined by whether the person is designated a plaintiff or a defendant in the pleadings or whether he is adverse or not on other issues. In the early case of O'Day v. Meyers (1911), 147 Wis. 549, 133 N.W. 605, in discussing the problem of adverse party under sec. 4068, Stats., we stated the true test was 'Are their interests adverse?' citing Crowns v. Forest Land Co. (1898), 99 Wis. 103, 74 N.W. 546. Parties to a suit may be adverse on one issue and not adverse on another, and thus the right to call a party as an adverse witness depends upon whether the interests of the witness and the party seeking to call him for examination are adverse on the subject matter of the examination. In O'Day, the assignee of the vendor of a land contract sued the vendor and the vendee. The vendor admitted all the allegations in the complaint; the vendee denied all of them. Thus while the vendor and the vendee were both defendants they were adverse parties and it was held the defendant vendee could examine his codefendant vendor as an adverse witness under sec. 4068, Stats.1898. On this point this section is substantially the same and is a predecessor of the present sec. 885.14.

In Bakula v. Schwab (1918), 167 Wis....