A. O. Smith Corp. v. Associated Sales & Bag Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: BROADFOOT
• Citation: A. O. Smith Corp. v. Associated Sales & Bag Co., 113 N.W.2d 562, 16 Wis.2d 145 (Wis. 1962)
• Decision Date: 06 March 1962
• Parties: A. O. SMITH CORPORATION, Intervening Plaintiff and Respondent, v. ASSOCIATED SALES & BAG COMPANY, Defendant and Appellant: Kennedy-Ingalls Corporation, Plaintiff: Meissner, Defendant.

Page 562

113 N.W.2d 562

16 Wis.2d 145

A. O. SMITH CORPORATION, Intervening Plaintiff and Respondent, v. ASSOCIATED SALES & BAG COMPANY, Defendant and Appellant Kennedy-Ingalls Corporation, Plaintiff: Meissner, Defendant.

Supreme Court of Wisconsin.

March 6, 1962.

Michael Klein, Arnold, Philipp & Murray, Morris Karon, Milwaukee, for appellant.

Porter, Lauritzen, Quale, Porter & Zirbel, Milwaukee, Irving W. Zirbel, Milwaukee, of counsel, for respondent.

BROADFOOT, Chief Justice.

In sustaining the demurrer the trial court relied upon the case of Albert v. Regal Ware (1959), 6 Wis.2d 519, 95 N.W.2d 240. The decision in that case was based upon Beck v. Hamann (1953), 263 Wis. 131, 56 N.W.2d 837, and Guse v. A. O. Smith Corp. (1952), 260 Wis. 403, 51 N.W.2d 24. In the Guse case, supra, we stated:

'The only section in the Act directly involved in this case is sec. 102.03, Stats., and particularly subsection (2) thereof, which provides: 'Where such conditions (defining compensable injury) exist the right to the recovery of compensation pursuant to the provisions of this chapter shall be the exclusive remedy against the employer.'

'That provision does not state that the remedy under the Act is exclusive against an employer with respect to merely the claims of an employee, nor with respect to merely the claims of any particular class of persons. The Act from the time of its enactment as Chapter 50, Laws of 1911, until its revision in 1931, definitely negated any such construction by virtue of the express provision of the original enactment in sec. 2394-4, Stats.1911, to wit:

"Liability for the compensation hereinafter provided for, in lieu of any other liability whatsoever, shall exist against an employer for any personal injury accidentally sustained by his employee, and for his death.'

'That language was deleted by a Revisor's Bill, Chapter 403, Laws of 1931. However, the Revisor's Note in 1931, appended as a footnote to sec. 102.01, Stats.1933, states:

'This revision of chapter 102 of the statutes is for the purpose of clarifying and simplifying the language, improving the arrangement, omitting unnecessary words, repealing expressly provisions which have been impliedly repealed by later enactments, and facilitating the finding and citing its various provisions. The meaning of the chapter remains the same as before. It is the intention to change the verbiage without changing the law.'

'Consequently the Act continues to have the legal effect of sec. 2394-4, Stats.1911, notwithstanding the 1931 revision, because revisions of statutes do not change their meaning unless the intent to change the meaning necessarily and irresistibly follows from the changed language. State v. Maas, 246 Wis. 159, 16 N.W.2d 406; City of Milwaukee v. Milwaukee County, 236 Wis. 7, 294 N.W. 51.

'In enacting the Act, the legislature intended to impose upon employers an absolute liability, regardless of fault; and in return for this burden, intended to grant employers immunity from all tort liability on account of injuries to employees.'

What we have held in these cases is that the sole liability of an employer because of the injury of an employee in the course of his employment, either to the employee or to anyone else, is under the Workmen's Compensation Law.

In 2 Larson, Workmen's Compensation Law, p. 230, sec. 76.21, the author states:

'The great majority of jurisdictions have held that the employer whose concurring negligence contributed to the employee's injury cannot be sued or joined by the third party as a joint tortfeasor, whether under contribution statutes or at common law. The ground is a simple one; the employer is not jointly...