Zimmerman v. Wisconsin Elec. Power Co.

• Decision Date: 09 April 1968
• Parties: George ZIMMERMAN et al., Plaintiffs, v. WISCONSIN ELECTRIC POWER CO., a Wis. corporation et al., Defendants-Respondents, Joseph MORAN, Third-Party Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 648

157 N.W.2d 648

38 Wis.2d 626

George ZIMMERMAN et al., Plaintiffs, v. WISCONSIN ELECTRIC POWER CO., a Wis. corporation et al.,

Defendants-Respondents,

Joseph MORAN, Third-Party Defendant-Appellant.

Supreme Court of Wisconsin.

April 9, 1968.

Schneider & Tammi, Milwaukee, for appellant.

Hippenmeyer, Reilly, Fritz & Arenz, Waukesha, for Quality Aluminum Casting Co.

Prosser, Zimmermann, Wiedabach, Koppa & Lane, Milwaukee, for Wis. Elec. Power Co.

HANLEY, Justice.

The sole issue presented on this appeal is whether sec. 102.03(2), Stats., the exclusive remedy provision of the Workmen's Compensation Act, prevents the bringing of an action against a fellow employee of the injured party under sec. 102.29(1), Stats. Under sec. 102.03(2), when conditions are present which give the injured employee the right to compensation pursuant to the act, the recovery of such compensation is the exclusive remedy against the employer and the workmen's compensation insurance carrier. Sec. 102.29(1) provides in part as follows:

'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, his personal representative, or other person entitled to bring action, to make claim or maintain an action in tort against any other party for such injury or death, hereinafter referred to as a third party; * * *.'

The present issue was decided adversely to appellant in McGonigle v. Gryphan (1930), 201 Wis. 269, 271--272, 229 N.W. 81, 82, where the court stated as follows:

'The fact that the plaintiff has accepted compensation under the Workmen's Compensation Act does not bar her right to maintain this action, because the compensation act does not affect the right to maintain any common-law action for tort except those in which the parties sustained toward each other the relationship of employer and employee. The Workmen's Compensation Act deals exclusively with the relationship of employer and employee. 'In all cases that do not come within the provisions of the Workmen's Compensation Act, the injured employee may still resort to an action in tort to enforce his rights against one, other than his employer, whom he alleges was guilty of negligence proximately causing his injuries.' Cermak v. Milwaukee Air Power Pump Co. 192 Wis. 44, 46, 211 N.W. 354, 355.

'Appellant contends that by the use of the phrases 'other party' and 'third party' in section 102.29 of the Statutes the Legislature evidenced an intent to limit recovery to those cases in which the tort-feasor was one who was 'outside the four walls of the industry' in which the injured person was employed. The statute contains nothing outside the fact that these phrases are used that would evidence any legislative intent to limit rights of action that existed under the common law when the Workmen's Compensation Act was passed. On the other hand, it is clear from a consideration of the whole act that it did not affect rights of action which existed under the common law in any cases except those in which the parties involved sustained toward each other the relationship of employer and employee.'

This result was adhered to in Severin v. Luchinske (1955), 271 Wis. 378, 73 N.W.2d 477.

Furthermore, the legislature in 1961 rejected a proposed amendment to sec. 102.03(2), Stats., which would have accomplished the result appellant argues for here. Bill No. 431, S, introduced on March 23, 1961, reads as follows:

'Where such conditions exist the right to the recovery of compensation pursuant to this chapter shall be the exclusive remedy against the employer, the workmen's compensation insurance carrier, or a fellow employe of the employer except where injury is wilfully or maliciously inflicted by such fellow employe.' (Emphasis supplied.)

The language eliminating the cause of action against a fellow employee was dropped from the bill, however. See Kerner v. Employers Mut. Liability Ins. Co. (1967), 35 Wis.2d 391, 396--397, 151 N.W.2d 72. The bill as enacted changed sec. 102.03(2) to its present form.

In an effort to overturn this long-established rule, appellant argues that sec. 102.16(3) read in conjunction with sec. 102.29(1) should be construed to prevent a third-party suit against a fellow employee. Sec. 102.16(3) reads as follows:

'No employer subject to the provisions of this chapter shall solicit, receive or collect any money from his employes or make any deduction from their wages, either directly or indirectly, for the purpose of discharging any liability under the provisions thereof; nor shall any such employer sell to an employe, or solicit or require him to purchase medical or hospital tickets or contracts for medical, surgical, or hospital treatment required to be furnished by such employer.'

Since sec. 102.29(1) allows the employer or the employer's insurance carrier to be reimbursed out of the proceeds of a third-party action after the costs of collection have been paid and the employee has received one-third of the balance, the argument is that to permit recovery against a fellow employee would be to sanction the employer's receiving money indirectly from his employees for the purpose of discharging his liability under the act.

While there is no doubt that by its terms sec. 102.16(3), Stats., admits of the construction appellant wishes to put on it, that statute was in existence when the court decided the McGonigle Case; and the legislature has not subsequently seen fit to change the rule there enunciated. It is true that McGonigle did not discuss the possible application of sec. 102.16(3), Stats., but that issue was raised in Quante v. Erickson (1958), 2 Wis.2d 527, 531, 87 N.W.2d 249, 251. There the cour tstated as follows:

'* * * The reason for creating sec. 2394--15(3), (Stats.), now sec. 102.16(3), is shown by the following analysis identified as Document No. 369.23, W7c pt. 4, 1917, which reads as follows:

"Section 2394--15 subsections 3 and 4 (pages 27 and 28, are new). Certain employers, particularly in the lumber and mining industries, are making monthly deductions from the wages of their employees, to build up a fund out of which to provide them with medical or hospital attendance, or both, in case of injury under compensation, and in this manner, loading upon the employee the burden which the act declares the employer shall bear for the same purpose.

"They are also inducing their employees to purchase hospital tickets or contracts for medical and hospital treatment in case of injury, and when injuries occur, instead of providing treatment at their expense, according to the law, they send the injured man to the hospital at which he has a ticket for treatment, without further cost. The purpose of this subsection is to...