Van Wie v. United States

• Citation: 77 F. Supp. 22
• Decision Date: 03 April 1948
• Docket Number: Civ. No. 403.
• Parties: VAN WIE v. UNITED STATES.
• Court: United States District Courts. 8th Circuit. Northern District of Iowa

77 F. Supp. 22

VAN WIE v. UNITED STATES.

Civ. No. 403.

District Court, N. D. Iowa, E. D.

April 3, 1948.

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Lee W. Elwood and Frank D. Elwood, both of Cresco, Iowa, for plaintiff.

T. E. Diamond, U. S. Dist. Atty., of Sheldon, Iowa, and Franklin E. Gill, Asst. U. S. Dist. Atty., of Sioux City, Iowa, for defendant.

GRAVEN, District Judge.

Action under the Federal Tort Claims Act. In this case, the plaintiff as administratrix of the Estate of Edward C. Van Wie, Deceased, seeks to recover for the claimed wrongful death of the decedent, Edward C. Van Wie, and for damages to a motor vehicle owned by the decedent. The action is brought under the Federal Tort Claims Act, §§ 401-424, 28 U.S.C.A. §§ 921-946. The damages claimed arose out of a collision between a motor vehicle owned and operated by the decedent and a motor vehicle owned and operated by one Nicholas Klein, a rural mail carrier, employed by the United States. The collision took place in Chickasaw County, Iowa, on May 23, 1946. The decedent died on June 22, 1946, as a result of injuries received in the collision. The decedent, at the time of his death, was a resident of the State of Wisconsin. He left surviving him, his widow, Josephine E. Van Wie, a resident of the State of Wisconsin, and an adult daughter who was and is a resident of the State of Illinois. The plaintiff, Josephine E. Van Wie, was, by the District Court of Iowa in and for Chickasaw County, appointed administratrix within the State of Iowa of the estate of the decedent.

The pertinent portions of the Federal Tort Claims Act involved are as follows:

28 U.S.C.A. § 931 (a): "Subject to the provisions of this chapter, the United States district court for the district wherein the plaintiff is resident or wherein the act or omission complained of occurred, * * *, sitting without a jury, shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, accruing on and after January 1, 1945, on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this title, the United States shall be liable in respect of such claims, to the same claimants, in the same manner, and to the same extent, as a private individual under like circumstances, except that the United States shall not be liable for interest prior to judgment, * * *. Costs shall be allowed in all courts to the successful claimant to the same extent as if the United States were a private litigant, except that such costs shall not include attorneys' fees.

"(b) The judgment in such an action shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the Government whose act or omission gave rise to the claim. * * *" 28 U.S.C.A. § 932 — "In actions under this subchapter, the forms of process, writs, pleadings, and motions, and the practice and procedure, shall be in accordance with the rules promulgated by the Supreme Court pursuant to section 723b and 723c of this title; and the same provisions for counterclaim and set-off, for interest upon judgments, and for payment of judgments, shall be applicable as in cases brought in the United States district courts under section 41(20), 250(1), (2), 251, 254, 257, 258, 287, 289, 292, 761-765 of this title."

The Federal Tort Claims Act constituted Title IV of the Legislative Reorganization Act of 1946. The purpose of Title IV was to relieve Congress of the burden of determining the merits of tort claims against the United States. State of Maryland v. United States, 4 Cir., 1947, 165 F.2d 869, 872. Under the Act, the standards and tests of the state where the alleged wrongful or negligent act was committed are to be used to determine whether a claim has been established upon which recovery can be allowed and the nature and extent of the recovery. State of Maryland v. United States, 4 Cir., 1947, 165 F.2d 869, 871.

In the present case, it is the claim of the United States that the plaintiff cannot maintain this action for the reason that she is not the real party in interest under the provisions of Rule 17(a), Federal Rules of Civil Procedure. 28 U.S.C.A. following section 723c. It is the claim of the United States that the plaintiff is not the real party in interest because of the relation of two insurance carriers to the recovery claimed.

The decedent in the present case was employed as a traveling salesman by the Kremers-Urban Company, a Wisconsin corporation with its principal place of business at Milwaukee, Wisconsin. The decedent and his employer were under the provisions of the Wisconsin Workmen's Compensation Act. Section 102.29(1) (a) (b) and (2) of the Wisconsin Workmen's Compensation Act provide as follows: "(1) (a) The making of a claim for compensation against an employer or compensation insurer for the injury or death of an employe shall not affect the right of the employe or his personal representative to make claim or maintain an action in tort against any other party for such injury or death, but the employer or his insurer shall be entitled to reasonable notice and opportunity to join in such action. If they or either of them join in such action, they shall be entitled to repayment of the amount paid by them as compensation as a first claim upon the net proceeds of such action (deducting the reasonable costs of collection) in excess of one-third of such net proceeds, which shall be paid to the employe in all cases.

"(b) The commencement of an action by an employe or his dependents against a third party for damages by reason of an injury to which sections 102.03 to 102.64 are applicable, or the adjustment of any such claim, shall not affect the right of the injured employe or his dependents to recover compensation, but any amount recovered by the injured employe or his dependents from a third party shall be applied as follows: Reasonable costs of collection shall be deducted; then one-third of the remainder shall in every case belong to the injured employe or his dependents, as the case may be; the remainder or so much thereof as is necessary to discharge in equal amount the liability of the employer and the insurer for compensation shall be paid to such employer or insurer; and any excess shall belong to the injured employe or his dependents.

"(2) An employer or compensation insurer who shall have paid a lawful claim under this chapter for the injury or death of an employe shall have a right to maintain an action in tort against any other party responsible for such injury or death. If reasonable notice and opportunity to be represented in such action by counsel shall have been given to the compensation beneficiary, the liability of such other party to such compensation beneficiary shall be determined in such action as well as his liability to the employer and insurer. If recovery shall be had against such other party, by suit or otherwise, the compensation beneficiary shall be entitled to any amount recovered over and above the amount that the employer and insurer have paid or are liable for in compensation, after deducting reasonable costs of collection, and in no event shall the compensation beneficiary be entitled to less than one-third of the amount recovered from the third party, less the reasonable costs of collection. Settlement of such claims and the distribution of the proceeds therefrom must have the approval of a court or of the industrial commission."

The Kremers-Urban Company carried workmen's compensation insurance in accordance with and as provided by the provisions of the Wisconsin Act. That insurance was carried with the Employees' Mutual Insurance Company of Wausau, Wisconsin. In accordance with the provisions of the Wisconsin Act, that insurance carrier paid medical bills of the decedent in the amount of $300, hospital expenses in the amount of $341.95, ambulance expense in the amount of $3.60, and paid $300 toward the funeral expense of $575. The death benefit under the Wisconsin Act was $7,400 payable in monthly installments. That benefit was and is payable to Josephine E. Van Wie as widow. The insurance carrier assumed liability for the payment of the death benefit and has been paying Josephine E. Van Wie monthly payments thereto at the rate of $80.16 per month since shortly after the death of the decedent. The insurance policy in question was not introduced in evidence and its terms and provisions do not appear. It is the claim of the United States that under the provisions of the Wisconsin Act the insurance carrier is entitled to two-thirds of the recovery of the wrongful death and the items connected therewith and that, as to such, the plaintiff is not the real party in interest. The insurance carrier is not a party to the action and has not asked to intervene herein in this action, nor otherwise asserted in this action any claim to the recovery herein.

Workmen's compensation is purely statutory and not known to common law. Provisions for an employer having any rights against third parties growing out of the payment of workmen's compensation must be found within the provisions of the statute. Albert A. Albrecht Co. v. Whitehead & Kales Irons Works, 1918, 200 Mich. 109, 166 N.W. 855. Workmen's compensation indemnifies the employer and not the employee. 71 C.J. pp: 912, 915. Such a policy does not affect the rights of the insured employee but only the...