Verhelst Const. Co. v. Galles

• Decision Date: 10 March 1931
• Citation: 235 N.W. 556,204 Wis. 96
• Parties: VERHELST CONST. CO. ET AL. v. GALLES.
• Court: Wisconsin Supreme Court

204 Wis. 96

235 N.W. 556

VERHELST CONST. CO. ET AL.

v.GALLES.

Supreme Court of Wisconsin.

March 10, 1931.

Appeal from a judgment of the Circuit Court for Ozaukee County; C. M. Davison, Circuit Judge. Reversed.

Action by employer under Workmen's Compensation Act and his insurer, brought after payment of award of Industrial Commission upon death of employee, against tort-feasor whose tort caused the death, to recover resulting damages and money paid to the state pursuant to the award; commenced October 2, 1928; judgment for defendant entered July 24, 1930. Plaintiffs appeal.

Herbert Thompson, an employee of the Verhelst Company, over twenty-one years of age and unmarried, was killed while performing service incident to his employment by being struck by the defendant's automobile. The employer was under the Workmen's Compensation Act. The parents of Thompson made claim under the act as partial dependents of the employee. The Industrial Commission awarded the parents $1,600; awarded the undertaker $200 for funeral expenses; and required the employer's insurer to pay $1,600 into the state treasury under section 102.29 (3), Stats. On satisfaction of the award the employer and its insurer pursuant to section 102.29 brought this suit against the defendant charging that the employee's death was caused by his negligence, and demanded judgment for $5,000 as the pecuniary loss sustained by the employee's parents under the death by Wrongful Act Statute (section 331.03), and the sum of $1,600 paid to the state pursuant to the award.

The case was tried to a jury who found that the defendant was negligent, that his negligence caused the death of the employee, and that there was no contributory negligence on the part of the employee, and assessed the parent's damages for pecuniary loss at $1,000. The funeral expenses were admittedly $337 and were so inserted in the verdict by the court. Upon this verdict the court awarded judgment against the defendant for $1,137, denying the claim of plaintiff for reimbursement of the $1,600 paid to the state, presumably because he considered the statutory provision for its recovery unconstitutional, and deducted $200 from the funeral expenses because that amount included in them was not paid by the parents. The employer and its insurer appeal from the judgment because it denies them the $200 paid as funeral expenses and the $1,600 paid to the state. The defendant does not move to review the allowance of the $137 for funeral expenses paid by the parents.Bender, Trump, McIntyre & Freeman and Ronold A. Drechsler, all of Milwaukee, for appellants.

Olwell & Brady and Geo. A. Gessner, all of Milwaukee, for respondent.

FOWLER, J.

[1][2] The appellant assigns as error the denial of recovery of (1) the $1,600 paid to the state and (2) the $200 paid to the undertaker.

1. The respondent claims the amount paid to the state is not recoverable because section 102.29 (3), purporting to provide for recovery from tort-feasors of amounts paid to the state under section 102.09 (4m) (f), is unconstitutional as denying the due process of law and equality of rights secured by the Fourteenth Amendment to the Constitution of the United States. Unless the respondent's contention in this respect is upheld, the plaintiffs are entitled to recover the amount paid to the state.

Section 102.09 (4m) (f), which provides for payment to the state in case of partial dependency when employees under the Compensation Act are killed in industrial accidents, has been declared constitutional in Sturtevant v. Industrial Comm., 186 Wis. 10, 202 N. W. 324. The decision is based upon Sheehan Co. v. Shuler, 265 U. S. 371, 44 S. Ct. 548, 68 L. Ed. 1061, 35 A. L. R. 1056, which declares a like act of the state of New York not violative of the Fourteenth Amendment. This court has not passed upon the constitutionality of section 102.29 (3) giving right of action for recovery of sums paid to the state. But a like provision of the New York Workmen's Compensation Act has been upheld by the Supreme Court of the United States in Staten Island R. T. R. Co. v. Phoenix Indem. Co., 281 U. S. 98, 50 S. Ct. 242, 74 L. Ed. 726. This decision would seem to establish the constitutionality of our like statute. Counsel points out that our Workmen's Compensation Act differs from that of New York in that it is optional, while that of New York is compulsory, but we are unable to see that this affects the constitutionality of like provisions of our act. The suggested difference between the acts made no difference as to their constitutionality as a whole. No more can it affect the constitutionality of their like incidental provisions. It is urged that an employer electing to go under our act gets a consideration for so doing. But it can make no difference to the wrongdoer who causes the death that subjects an employer under the act to liability for payment to the state whether the employer's liability results from compulsion or his election. It is pointed out that the defendant is subjected to common-law items of damage and in addition to the amount paid to the state, while another person, who by his negligence kills an employee with partial dependents, whose employer is not subject to the act, is only subject to liability for common-law items of damage. But the situation is the same under the New York provision for reimbursement. In New York all employers are not under the act. The same inequality exists under the New York act between two tort-feasors who by negligence jointly with...