Western Casualty & Surety Co. v. Shafton

The following opinion was filed February 7, 1939: Fowler, J. The issue between the parties is whether the comparative-negligence statute, sec. 331.045, applies to the instant case and if it does to what extent. Two statutes are involved as the basis of the action. Sec. 102.49 (5), Stats., provides that when an employee is killed having no one wholly dependent on him the employer or insurer shall pay into the state treasury such an amount, when added to the sums paid for partial dependency, as shall equal the amount payable when the employee leaves one wholly dependent, but not exceeding $2,000. The action was brought to recover $2,000 so paid. It is admitted that $2,000 was properly paid by the plaintiff under this statute. The other statute, which [4] authorizes action when money is so paid, is sec. 102.29 (3), which reads: “In the case of liability of the employer or insurer to make payment into the state treasury under the provisions of section 102.49 or 102.59, if the injury or death was due to the actionable act, neglect, or default of a third party, the employer or insurer shall have a right of action against such third party for reimbursement for any sum so paid into' the state treasury, which right may be enforced either by joining in the action mentioned in subsection (1) or (2), or by independent action.” The appellants claim that the verdict herein is defective because it contains no finding as to the contributory negligence of Senoraske, the deceased employee, and if the verdict is not defective for this reason the judgment should be reduced under the comparative-negligence statute to' ninety per cent of $2,000 because the contributory negligence of Wilke, the driver of the automobile in which the deceased was riding, was ten per cent as compared to Shafton & Company’s ninety per cent. As to Wilke’s negligence the appellants claim that his negligence is attributable to his master under the doctrine of respondeat superior. So it is in an action against the master to1 recover because of his negligence. But this is not such an action. The master of Senoraske was Hoffer. His only liability for Senoraske’s death was under the Workmen’s Compensation Act. Wilke’s negligence is therefore entirely immaterial. It was so held in Clark v. Chicago, M., St. P. & P. R. Co. 214 Wis. 295 , 252-N. W. 685, which was a suit under the death-by-wrongful-act statute which involved money paid pursuant to an award of the industrial commission. No reason is perceived why the same rule does not apply here. As to Senoraske’s negligence we must hold upon the record that Senoraske was not negligent at all. This being so, there is no need to' determine what effect a finding that he was [5] negligent would have had. No request was made to submit to the jury a question as to his contributory negligence. Sec. 270.28, Stats., provides in case of submission of the issues in a special verdict under sec. 270.27: “Submission to jury; omitted essential fact. When some controverted matter of fact not brought to the attention of the trial court but essential to sustain the judgment is omitted from the verdict, such matter óf fact shall be deemed determined by the court in conformity with its judgment and the failure to request a finding by the jury on such matter shall be deemed a waiver of jury trial pro tanto.” Thus as the court granted judgment the situation is as if the jury had found that Senoráske was not negligent or that if negligent his negligence was-less than Shafton & Company’s, which is all that the verdict would have to find in addition to what it did find in order to support the judgment. The other assignments of error made by appellants are based on the findings of negligence made by the verdict. They are findings (2), (3), and (4), set out in the statement preceding the opinion, relating -to clear space at the left of •truck A, by leaving truck A on the road an unreasonable length of time, and by not haying lights on the rear of truck A. These we need not discuss because it is conceded that causative negligence by the driver of truck A was established by his failure to put out flares or fusees as required by sec. 85.06 (2) (d), Stats., when'a-disabled motor vehicle is left standing on a highway. In absence of negligence on the part of Senoraske this fixes the liability of the defendants. By the Court. — The judgment of the circuit court is affirmed. The following memorandum was filed April 11, 1939: