Wisconsin Power & Light Co. v. Dean

• Decision Date: 05 March 1957
• Citation: 81 N.W.2d 486,275 Wis. 236
• Parties: WISCONSIN POWER AND LIGHT CO., a Wis. corporation, Respondent, v. Curtis L. DEAN et al., Defendants, Southern Wisconsin Breeders Cooperative, a Wis. corporation, Appellant, William R. Downing, Interpleaded Defendant. Robert LEEDER et al., Respondent, v. Curtis L. DEAN et al., Defendants, Southern Wisconsin Breeders Cooperative, a Wis. corporation, Appellant, William R. Downing, Interpleaded Defendant.
• Court: Wisconsin Supreme Court

Page 486

81 N.W.2d 486

275 Wis. 236

WISCONSIN POWER AND LIGHT CO., a Wis. corporation, Respondent, v. Curtis L. DEAN et al., Defendants, Southern Wisconsin Breeders Cooperative, a Wis. corporation, Appellant, William R. Downing, Interpleaded Defendant.

Robert LEEDER et al., Respondent, v. Curtis L. DEAN et al., Defendants, Southern Wisconsin Breeders Cooperative, a Wis. corporation, Appellant, William R. Downing, Interpleaded Defendant.

Supreme Court of Wisconsin.

March 5, 1957.

Geffs, Geffs, Block & Geffs, Janesville, for appellant.

Schubring, Ryan, Petersen & Sutherland, Madison, for respondent Power co.

FAIRCHILD, Justice.

In one action, which may be called the 'state fund' case, the respondent Power Company is the sole plaintiff. Apparently the respondent's deceased employee left no person dependent upon him for support and the complaint alleges that pursuant to sec. 102.49(5), Stats.1953, respondent paid $4,000 into the state treasury and that the death resulted from the negligence of Dean. The cause of action stated in the complaint is one for reimbursement for such payment created by sec. 102.29(2), Stats. Appellant's answer denies negligence on the part of Dean but as an additional defense pleads that the collision was caused by the negligence of Downing, another employee of respondent. Appellant's position is that the comparative negligence statute, sec. 331.045, applies to the respondent's cause of action for reimbursement. Appellant urges that if Downing's negligence was 50% or more of the total causal negligence, respondent can recover nothing and if less than 50% respondent's recovery must be diminished proportionally.

Sec. 102.29(2), Stats. gives the employer or insurer who is required to make payment into the state treasury a right of action against a third party for reimbursement for any sums so paid if the injury or death of the employee was due to the actionable act, neglect or default of the third party. Sec. 331.045, Stats. substitutes the comparative negligence rule for the old contributory negligence rule 'in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property.' The employer's action is one for reimbursement for money paid out pursuant to statute and is not an action 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 cited and those in the instant case. In the Shafton case the causal negligence attributed to the deceased's fellow employee was 10% and in the Mueller case the negligence attributed to the deceased employee himself was 25%. Under the pleadings now before us Downing may have been responsible for 50% or more of the causal negligence. In both the Shafton and Mueller cases the action was brought by an insurer rather than by the employer. We can perceive no logical reason for reaching a different interpretation of the statute because of either of these distinctions. It is true that in the Mueller decision this court commented that the question of what would happen were the negligence of the employee equal to 50% or more of the causal negligence was not then before this court. It would, however, be entirely inconsistent to hold that the portion of the comparative negligence statute which defeats recovery where the negligence attributable to plaintiff is 50% or more is applicable to an employer's action for reimbursement but that the portion of the comparative negligence statute which provides for a reduction of recovery by reason of negligence attributable to the plaintiff of less than 50% is not applicable to such action.

We are therefore of the opinion that under sections 102.29(2) and 331.045 in their present form the allegations of negligence on the part of Downing do not state a defense to the respondent's cause of action for reimbursement for money paid into the state fund.

In the other action, which may be called the 'employees' case,' respondent has joined as plaintiff along with its injured employees. Its cause of action for burial expense included in the state fund case stands upon the same footing as its rights in the employees' case. Sec. 102.29(1), Stats. makes it clear that the cause of action of an employee, his personal representative or other person entitled to bring action against a third party for negligently causing injury or death is not affected by the making of a claim for workmen's compensation. Subsection 1 provides for the division between the employer...