Van Wie v. United States, Civ. No. 403.
| Court | United States District Courts. 8th Circuit. Northern District of Iowa |
| Writing for the Court | GRAVEN |
| Citation | 77 F. Supp. 22 |
| Docket Number | Civ. No. 403. |
| Decision Date | 03 April 1948 |
| Parties | VAN WIE v. UNITED STATES. |
77 F. Supp. 22
VAN WIE
v.
UNITED STATES.
Civ. No. 403.
District Court, N. D. Iowa, E. D.
April 3, 1948.
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
"(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
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...
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...deceleration, is unquestionably an eyewitness as to the conduct of the operator of that vehicle. See Van Wie v. United States, D.C.Iowa, 77 F.Supp. 22. It is the holding of the Court that Fireman Keith was such an eyewitness as to deny the plaintiff the benefit of the no eyewitness rule. Th......
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...damages and that his damages were directly and proximately caused by the acts or omissions of defendant. Van Wie v. United States, 77 F.Supp. 22, 49 (D.C. Iowa, 1948); 25A C.J.S. Damages ?? 144, 162(1) d and 162(6). Obviously, personal injuries which are imaginary and do not exist and those......
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...the employer or his insurer rights in the recovery from a third person as having no extraterritorial effect. Van Wie v. United States, 77 F. Supp. 22, 31 (N.D.Iowa It is logical to conclude then that a cause of action created by the act in favor of the employer or insurer may be directly en......
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Mast v. Illinois Cent. R. Co., Civil Action No. 410.
...deceleration, is unquestionably an eyewitness as to the conduct of the operator of that vehicle. See Van Wie v. United States, D.C.Iowa, 77 F.Supp. 22. It is the holding of the Court that Fireman Keith was such an eyewitness as to deny the plaintiff the benefit of the no eyewitness rule. Th......
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Stockdale v. Agrico Chemical Co., Div. of Con. Oil Co., Civ. No. 69-C-2010-C.
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Rozmajzl v. Northland Greyhound Lines, No. 47894
...1138; Knaus Truck Lines v. Commercial Freight Lines, 238 Iowa 1356, 1365, 29 N.W.2d 204, 209; Van Wie v. U. S., D.C.Iowa (Judge Graven), 77 F.Supp. 22, 37. 'A motorist should not operate his vehicle up to the speed limit of the statute * * * if the circumstances are such that reasonable and......
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Shelby Mutual Insurance Co. v. Girard Steel Supply Co., No. 3-63-Civ-234.
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