W. Cas. & Sur. Co. v. Shafton
| Decision Date | 11 April 1939 |
| Citation | 285 N.W. 408,231 Wis. 1 |
| Parties | WESTERN CASUALTY & SURETY CO. v. SHAFTON et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Portage County; Byron B. Park, Judge.
On motion for rehearing.
Motion denied.
For original opinion, see 283 N.W. 806.
Fisher, Cashin & Reinholdt, of Stevens Point, for appellants.
Lyel N. Jenkins, of Stevens Point (James H. Van Wagenen and Charles W. Nason, Jr., both of Stevens Point, of counsel), for respondent.
The appellants on motion for rehearing contend that the statements in the opinion that (1) the negligence of Wilke, the driver of the Hofer automobile, is immaterial and (2) that Clark v. Chicago, M. & St. P. Ry. Co., 214 Wis. 295, 252 N.W. 685, so rules, are erroneous.
(2) We acknowledge that we were in error in saying that the Clark case rules the instant one upon the point of immateriality of Wilke's negligence. While the factual situations of the two cases are in many respects parallel, the statutes respecting recovery of money paid on awards of the Industrial Commission at the times involved in the cases are so different and such factual difference exists that the reasons on which the ruling of immateriality rested in the former case are not applicable here. This tub must stand on its own bottom.
(1) The movants contend that the contributory negligence statute requires that the recovery herein be reduced by 10% because the jury found Wilke's causative negligence was 10% as compared to the truck driver's 90%.
The statutes quoted in the opinion give an “independent action” to the plaintiff to recover the money paid by it into the state treasury. They say the money so paid may be recovered from a third party tortfeasor. So saying carriers the implication that all of it shall be recovered, independent of the amount recoverable by the beneficiaries under the death by wrongful act statute. Apriori he may recover it all.
We consider that he may recover it all follows because the language of the contributory negligence statute does not cover this case. The statute, sec. 331.045, merely provides that “contributory negligence shall not bar recovery in an action by any person or his legal representative *** for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against from recovery is sought, but any damages allowed shall be dismissed by the jury in the proportion to the amount of negligence attributable to the person recovering.”
The statute only covers actions to recover for negligence “for injury to person or property.” Injury to whose person-whose property? Injury to...
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Shelby Mutual Insurance Co. v. Girard Steel Supply Co.
...is without merit. Plaintiff bases this argument on a statement made by the Wisconsin Supreme Court in Western Casualty & Surety Co. v. Shafton, 231 Wis. 1, 285 N.W. 408 (1939) that the insurer's recovery is for a specific sum of money made recoverable by statute, and hence an action on cont......
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Wisconsin Power & Light Co. v. Dean
...for damages to which the comparative negligence statute applies. Western Casualty & Surety Co. v. Shafton, 231 Wis. 1, 283 N.W. 806, 285 N.W. 408; Employers Mut. Liab. Ins. Co. v. Mueller, 273 Wis. 616, 79 N.W.2d 246. There are only two possible distinctions between the facts in the cases c......
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