Combined Locks Paper Co. v. Industrial Commission

Crownhart, J. There should be no doubt of the meaning of sub. 1, sec. 2394 — 25; Stats. 1921. It is there plainly stated: “The making of a lawful claim against an employer or compensation insurer for compensation under sections 2394 — 3 to 2394 — 31, inclusive, for the injury or death of an employee shall operate as an assignment of any cause of action in tort which the employee or his personal representative may have against any other party for such injury or death; and such employer or insurer may enforce in their own name or names the liability of such other party for their benefit as their interests may appear.” The legislative intent was to allow the employer to recover from the third party liable to damages under sec. 4255, as an offset to his liability for compensation, up to two thirds of such recovery, and for that purpose the making of a lawful claim by the widow for compensation should have operated as an assignment of her claim or that of her personal representative against the third party to the employer. Such employer then had control of such claim subject to the conditions imposed by the statute, and might settle the same or bring action thereon in his own name. It follows that the widow could not defeat the plain purpose of the act by first settling her claim against the third party and then recovering compensation against the employer. She had her option to take compensation and one third of any recovexy the employer might obtain against the third party, or she could waive compensation and claim under sec. 4244, Stats. In this case she chose the latter remedy and must abide by her choice. The statute so construed is entirely favorable to the claimant for compensation. She can make her claim for compensation, and if she fails to establish a lawful claim [52] she may then seek her remedy in tort against the third party. It is unfortunate for the widow that she did not follow the plain intent of the law. There has been some confusion over the construction of the second paragraph of sec. 2394- — 25, Stats. Clearly, that paragraph was not intended to limit the first paragraph. It was an attempt to declare a waiver of the party entitled to compensation, where such party should begin an action for damages against a third party instead of making claim for compensation. The two paragraphs are to be read together to get the legislative intent. The term “employee” in the second paragraph should be construed to include a dependent of an employee and his personal representative. Any other construction would defeat the plain public policy of the statute. It is claimed by the respondent that this court has held otherwise in Miller Scrap Iron Co. v. Boncher, 173 Wis. 257, 180 N. W. 826. We do not think so. In that case the claim against the third party was necessarily made under secs. 13702 and 13703, Howell’s Statutes of Michigan. Under such statutes it is pointed out in the opinion in the Boncher Case, supra, that the recovery was not in favor of the widow, as it would have been under the Wisconsin statutes, and therefore the widow or her personal representative had no control over the prosecution of the action. There the suit was begun by the administrator of the estate for the’ benefit of the estate. Because of the decision we have reached on the purpose of the statutes, it becomes unnecessary to consider whether Buss was a contractor under the appellant employer. By the Court. — The judgment of the circuit court is reversed, with directions to the circuit court to reverse the award of the Industrial Commission.