Town of Stephenson v. Schelk

173 Wis. 251 | Wis. | 1921

Jones, J.

No claim has been made in the argument or brief of the respondent town that the appellant did not have a meritorious claim against the town under the workmen’s compensation act, although it seems to have been urged before the Commission that the injury was not one incidental to the employment.

Appellant clearly had a cause of action against the person who fired the shot. He may have had doubts whether he had a cause of action against both McDonald and Stibbe, and, if not, whether he could have proved who discharged the shot. Before he fully determined on the best course to pursue he became convinced of the difficulties in the way of obtaining compensation from McDonald and Stibbe. Naturally his first thought was that these parties or one of them should make compensation.

Although appellant preferred obtaining compensation from McDonald and Stibbe to antagonizing the town, they never made him any definite offer and he never accepted any proposition made by them. His proposal was not accepted and was abandoned. He was willing to negotiate with them and would have accepted $1,000 and his expenses if they had been willing and able to make the payment. Before any conclusion was reached they took the claimant to their lawyer friend and he became satisfied that his most-certain remedy was against the town. One of the facts determining-his course of action was the doubt whether a judgment against McDonald and Stibbe would be collectible. Appellant never told McDonald and Stibbe that he demanded any certain payment. Even if he hoped that they would pay him he did not notify them that he should prosecute a claim against them if they did not pay. Although he consulted an attorney as to his rights against them, no demand was ma'de or notice given by any attorney.

There is undoubtedly considerable force in the argument that appellant made a claim against McDonald and Stibbe. But the real question is whether it was such a claim as, within the meaning of the statute, forfeited or waived appellant’s claim against the town. The statute existing at the time (Stats. 1917) was as follows:

“Section 2394 — 25. 1. The making of a lawful claim against an employer for compensation under sections 2394 — 3 to 2394 — 31, inclusive, for the injury or death of his 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 may enforce in his own name the liability of such other party.

“2. The 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 the employer.”

The statute should be liberally construed. White v. Industrial Comm. 167 Wis. 483, 485, 167 N. W. 816, and cases cited. It should be so construed as to afford workmen a remedy for meritorious claims; not so construed as to deprive them of just compensation merely because they discuss and investigate their remedies or even because they may have had some negotiations with parties other than the employer when these negotiations have led to no result and have brought no detriment to the employer. A “claim” is frequently defined judicially as “a demand of some matter as of right, made by one person upon another to do or forbear to do some act or thing as a matter of duty.” See Words & Phrases, title “Claim.” The word seems to contemplate something rather unequivocal, something in the nature of a demand rather than a request. At least this would seem to be the proper meaning of the word in a statute like this, where, by a stricter construction, an employee through ignorance of the law might forfeit a just claim by having conversations and negotiations with another than his employer.

The only case cited which bears directly upon the questions involved is Harloff v. Merwin, 172 Wis. 30, 177 N. W. 913, 915. Tn that case it was held that claimant had made his election to pursue his remedy against a third party. But the proof showed that his attorney had written several letters showing that such a claim had been made, and the employee had actually received $1,200 from the third party and given a release in'full.

No claim is made that the payment of the medical and hospital expenses by McDonald and Stibbe without the knowledge of appellant bars his claim.

By the Court. — Judgment of the circuit court is reversed, and the cause is remanded with. instructions to affirm the award of the Industrial Commission, with costs to be paid by the respondent town.