City of Milwaukee v. Boynton Cab Co.

The following opinion was filed February 8, 1930: Crown hart, J. It appears from the order overruling the demurrers and the briefs of counsel that the matters submitted to the trial court .for decision were only the demurrers — 584 — to the pleas in abatement, although the demurrers are broad enough to include the general defense. We are therefore considering only the ruling of the court on the pleas in abatement. The complaint was evidently drafted on the theory that the causes of action of the plaintiff depended upon the provisions of the workmen’s compensation act, and particularly upon sec. 102.29 of the Statutes, which reads as follows: “(1) The making of a lawful claim against an employer or compensation insurer- for compensation under sections 102.03 to 102.34, 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 compensation act makes the employer liable to his workmen for accidents to the workmen growing out of the employment, irrespective of questions of negligence. The workmen’s compensation act, however, seeks to relieve the employer or compensation insurer where the injury to his employee has grown out of the negligence or tortious act of a third party, by assigning to the employer or compensation insurer the right of action which the employee has against such third party for the benefit of the employer or compensation insurer, to the extent provided by statute, and for the benefit of the employee, as provided by statute. The employer or compensation insurer, as the case may be, may enforce in his own name the liability of such third party for the benefit of the parties as their interests may appear. In such action the statute contemplates that the employer or insurer shall carry on the action as trustee for the injured employee or his representatives, to the extent that their interests appear, and account to them for any money that may be collected for them. Under the statute one third of the — 585 — recovery goes to the injured employee or his representatives. The statute says that “the making of a lawful claim against an employer or compensation insurer for compensation . . . 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.3’ Under the death statutes of 1898, secs. 4255 and 4256, it was provided that the action given by sec. 4255 should be brought by the personal representative of the deceased, but by the amendment of 1907 it was provided— “That if there be no cause of action in favor of the estate of such decedent and the person or persons to whom the whole amount sued for and recovered belongs . . . shall be the husband, widow, or parent or parents of the deceased, suit may at his or her or their option be brought directly in his or her or their name or names instead of being brought in the name of the personal representative of such deceased person.” This amendment is significant of the legislative intent that the sums to be recovered in such case were personal to the party entitled thereto and in no sense any part of the decedent’s estate. Not being any part of his estate, the deceased could not, without legislative authority, bargain away, by accepting the compensation act, the statutory rights given the beneficiaries named in the statute. Construing sec. 102.29 and sec. 4256 (now sec. 331.04) together, we cannot find any such legislative intent, for sec. 102.29 provides only for the 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. In the instant case the cause of action under the death statute belonged to the widow, which she could sue for in her own name, and her cause of action was not assigned to the city by force of the statute. Anderson v. Mil — 586 — ler Scrap Iron Co. 176 Wis. 521, 182 N. W. 852, 187 N. W. 746. The facts set out in the complaint disclose a cause of action in favor of the estate for damages by reason of the pain and suffering of the deceased after the injuries, prior to his death, by reason thereof, and expenses to his estate for funeral and burial of the deceased. Upon a valid claim made upon the employer for compensation, this cause of action was assigned to the employer to collect and disburse as the interests of the parties thereto shall be determined under sec. 102.29. Anderson v. Miller Scrap Iron Co., supra. The complaint also states facts from which a common-law action arises in favor of the city against the tortfeasors causing it damage by their wrongful acts. The complaint alleges that plaintiff has become liable to pay a stated amount of compensation by reason of the tor-tious acts of the defendants, other than the insurance carriers, and that the insurance carriers are liable as such under their policies of insurance. At common law the plaintiff is entitled to recover on the general principles of indemnity, where it has been obliged to pay damages by reason of the torts of another. Such is the case covered by the complaint here. In Washington Gas Co. v. District of Columbia, 161 U. S. 316, 327, 16 Sup. Ct. 564, the District of Columbia had been required to pay damages to an injured party by reason of a defect in its street, which was primarily caused by the Gas Company. The District of Columbia brought action against the Gas Company to be indemnified for the damages it had been required to pay. The court there laid down the rule that “if the parties are not equally criminal, the principal delinquent may be held responsible to his co-delinquent for damages incurred by their joint offense.” The court cites many cases illustrating the rule. In the instant case the plaintiff was not even a co-delin — 587 — quent. It was held liable to pay compensation simply by virtue of its being the employer of the injured man, and with greater reason it is entitled to be indemnified than the plaintiff in the case cited. In Baltimore & O. R. Co. v. Howard County Comm’rs, 113 Md. 404, 77 Atl. 930, 933, the court laid down the rule that: “Wherever the wrongful act of one person results in liability being imposed on another, the latter may have indemnity from the person actually guilty of the wrong.” The only exception to the above is where the parties are in pari delicto. The court in that case quoted from Gray v. Boston G. L. Co. 114 Mass. 149, as follows: “The ground of the action is that the defendant has, by his own unauthorized act, exposed the plaintiff to a liability, and it is immaterial whether the liability is imposed by force of a statute or by the rules of the common law. In either case the plaintiff is held liable by inference of law, and not by reason of his active participation in the act which was the occasion of the injury.” In that case the owner of a building, to the chimney of which a gas company had, without the owner’s consent, so affixed a wire as to render the chimney unsafe, and ultimately to cause its fall upon a passer-by, was held liable for the damage so caused, and when so required to pay damage he had an action against the company for indemnity. We conclude that the complaint states a cause of action for indemnity by reason of the plaintiff having been required to pay compensation as a result of the tortious acts of the defendants. The General Accident Fire and Life Assurance Corporation answered that its policy of insurance contains a provision that no action can be maintained thereon until judgment against the insured is secured, and asked that the action be abated until such time. To this defense the — 588 — plaintiff demurred. The answer in that respect states a good defense, and the demurrer was properly overruled. The complaint is not a model pleading, and the various answers and pleas in abatement are confusing. But it appears that none of the pleas in abatement states a defense, other than the one as to the General Accident Fire and Life Assurance Corporation. The demurrers to such pleas should have been sustained. By the Court. — The order of the circuit court overruling the demurrer to the plea in abatement of the General Accident Fire and Life Assurance Corporation is affirmed; and the order overruling the demurrers to the other pleas in abatement is reversed.