162 Wis. 503 | Wis. | 1916
Tbe circuit court sustained tbe demurrer to the complaint on tbe ground that when plaintiff filed a claim against bis employer bis cause of action for tbe injury received and tbe proximate results thereof was assigned to bis employer by virtue of sub. 1 of sec. 2394 — 25, Stats., which reads as follows:
“Tbe making of a lawful claim against an employer for compensation under sections 2394 — 3 to 2394 — 31, inclusive, for the injury or death of bis employee shall operate as an •assignment of any cause of action in tort which tbe employee or bis personal representative may have against any other party for such injury or death; and such employer may enforce in bis own name tbe liability of such other party.”
It is quite evident from tbe reading of this subdivision that it contemplates tbe existence at tbe same time of two remedies, either of which tbe employee may pursue. He may invoke tbe statutory remedy against bis employer, or tbe common-law remedy against tbe third person who by bis negligence caused or contributed to bis injury. McGarvey v. Independent O. & G. Co. 156 Wis. 580, 146 N. W. 895. It is equally obvious that these two remedies must co-exist in order to give tbe employee an election. That tbe statute contemplated an election is made clear by sub. 2 of tbe same section, which provides that “Tbe making of a claim by an employee against a third party for damages by reason of an accident covered by sections 2394 — 3 to 2394 — 31, inclusive, shall operate as a waiver of any claim for compensation against tbe employer.” Thus, while tbe statute gives tbe employee tbe option of pursuing either remedy it deprives
It does not appear that at the time plaintiff was injured there was any negligence by any third party or, indeed, by any one. This being so, plaintiff had no election to make when he filed his claim under the statute against his employer and no cause of action passed to the latter. The employee could proceed only against his employer. There was no one else liable so far as the complaint discloses. He could not at that time be required to make an election because the facts giving rise to an election were not then in existence, nor could they be reasonably anticipated because malpractice is the exception, not the rule. No duty or opportunity to elect could arise until the facts creating the liability of the third person came into existence. In this case they were not known to plaintiff until about 'August 20th, and there is nothing to show he was negligent in not sooner ascertaining them. - As soon as they came to his notice he promptly elected to hold the third person whose alleged negligence aggravated his first injury, and thereby he waived further liability against his employer. Sub. 2, sec. 2394 — 25.
The making of a lawful claim against the employer eo instanti operates to assign to him any cause of action the employee may then have against a third party. McGarvey v. Independent O. & G. Co. 156 Wis. 580, 146 N. W. 895. But it does not assign a cause of action then not in esse. It merely acts upon what is in existence at the time the lawful claim is made. When the negligence of a third party, to the knowledge of the employee, who exercises ordinary diligence in respect thereto, intervenes, his right to an election arises, not before then. It was therefore competent for plaintiff, when he first learned of the negligence of the defendant, to
By the Court. — Order reversed, and cause remanded with directions to overrule the demurrer and for further proceedings according to law.
