113 N.W.2d 562

A. O. SMITH CORPORATION, Intervening Plaintiff and Respondent, v. ASSOCIATED SALES BAG COMPANY, Defendant and Appellant: KENNEDY-INGALLS CORPORATION, Plaintiff: MEISSNER, Defendant.

Supreme Court of Wisconsin.February 9, 1962 —
March 6, 1962.

APPEAL from an order of the circuit court for Milwaukee county: FRANCIS X. SWIETLIK, Reserve Circuit Judge, Presiding Affirmed.

The intervening plaintiff, A. O. Smith Corporation, seeks to recover the amount paid by it under the Workmen’s Compensation Law to an injured employee from Associated Sales Bag Company, hereinafter called “Associated.” Facets of the case have been before this court on three previous occasions, the citations being 5 Wis.2d 100, 92 N.W.2d 247; 8 Wis.2d 126, 98 N.W.2d 386; 11 Wis.2d 371, 105 N.W.2d 748. The facts appear in the opinions therein. However, the trial court deemed it advisable to relate the chain of events which preceded the filing of its amended counterclaim by Associated and of the demurrer to said counterclaim interposed by the intervening plaintiff. The trial court stated said chain of events as follows:

“Kennedy-Ingalls Corporation bought certain aprons from the defendants Roland E. Meissner and Associated Sales
Bag Company to be used for industrial purposes.

“Kennedy-Ingalls Corporation sold some of these aprons to A. O. Smith Corporation. The latter issued one of these

Page 146

aprons to one of its employees, George James, to be used in connection with welding operations.

“This apron ignited and caused severe injuries to George James.

“A. O. Smith Corporation paid James $17,000 as compensation as well as the medical bills, under the provisions of the Wisconsin Compensation Act.

“`Said employee, George James, instituted an action against the original plaintiffs (Kennedy-Ingalls Corporation) for the sum of $100,000 for his aforesaid injuries; and the intervening plaintiff’s (A. O. Smith Corporation) claim for $17,527.49 was included therein by virtue of the provisions of the Workmen’s Compensation Act, and notice given pursuant thereto by said employee (James) to the intervening plaintiff (A. O. Smith Corporation).’

“Kennedy-Ingalls Corporation settled the James action by paying the latter $17,000. As part of the settlement A. O. Smith Corporation released its claim against Kennedy-Ingalls Corporation and George James on account of money paid to James under the Compensation Act.

“Kennedy-Ingalls Corporation thereupon sued Roland E. Meissner and Associated Sales Bag Company for a breach of warranty in the sale of the said aprons by the defendants to Kennedy-Ingalls Corporation.

“In the meantime A. O. Smith Corporation moved to be permitted to intervene as a party plaintiff in the suit in which Kennedy-Ingalls Corporation was plaintiff and Roland E. Meissner and Associated Sales Bag Company defendants.

“The trial court denied the motion. On appeal the supreme court held that A. O. Smith Corporation’s motion to intervene should have been granted, said A. O. Smith Corporation having been subrogated to a part of the cause of action of Kennedy-Ingalls Corporation against Roland E. Meissner and Associated Sales Bag Company.

“Before said ruling of the supreme court, the case of Kennedy-Ingalls Corporation against Roland E. Meissner and Associated Sales Bag Company was tried and the jury returned a verdict in favor of the plaintiff for the amount of money paid by Kennedy-Ingalls Corporation to George James.

Page 147

“The trial court thereupon set aside said verdict to enable A. O. Smith to participate in the trial of Kennedy-Ingalls Corporation against Meissner and Associated Sales Bag Company.

“On appeal the supreme court held that it was not necessary to set aside the verdict because A. O. Smith Corporation waived in writing its right to participate in said action.

“A. O. Smith Corporation thereupon served a complaint upon the defendants Roland E. Meissner and Associated Sales Bag Company in which it alleged that it became subrogated to a part of the cause of action of Kennedy-Ingalls Corporation against said defendants and asked judgment in the sum of $17,527.49, which sum it paid to George James, one of its employees as compensation and for medical care under the provisions of the Wisconsin Compensation Act.

“The defendant Associated Sales Bag Company served an answer upon the intervening plaintiff, A. O. Smith Corporation, in which it alleged several affirmative defenses.”

By way of counterclaim Associated seeks recovery of the amount it paid to Kennedy-Ingalls Corporation, together with its costs of suit, attorneys’ fees, and expenses. The counterclaim is based upon the negligence of the intervening plaintiff, its supervisory agents, and employees in issuing the apron to George James to be used while welding.

The intervening plaintiff demurred to the counterclaim and by order dated June 28, 1961, the trial court sustained the demurrer. Associated appealed from said order.

For the appellant there were briefs by Michael Klein an Suel O. Arnold, attorneys, and Morris Karon of counsel, all of Milwaukee, and oral argument by Mr. Karon.

For the respondent there was a brief by Porter, Lauritzen, Quale, Porter Zirbel, attorneys, and Irving W. Zirbel of counsel, all of Milwaukee, and oral argument by Irving W. Zirbel.

BROADFOOT, C.J.

In sustaining the demurrer the trial court relied upon the case of Albert v. Regal Ware (1959),

Page 148

6 Wis.2d 519, 95 N.W.2d 240. The decision in that case was based upon Beck v. Hamann (1953), 263 Wis. 131, 56 N.W.2d 837, and Guse v. A. O. Smith Corp.
(1952), 260 Wis. 403, 51 N.W.2d 24. In the Guse Case, supra, we stated (p. 405):

“The only section in the act directly involved in this case is sec. 102.03, Stats., and particularly sub. (2) thereof, which provides: `Where such conditions [defining compensable injury] exist the right to the recovery of compensation pursuant to the provisions of this chapter shall be the exclusive remedy against the employer.’

“That provision does not state that the remedy under the act is exclusive against an employer with respect to merely
the claims of an employee, nor with respect to merely the claims of any particular class of persons. The act from the time of its enactment as ch. 50, Laws of 1911, until its revision in 1931, definitely negated any such construction by virtue of the express provision of the original enactment in sec. 2394-4, Stats. 1911, to wit:

“`Liability for the compensation hereinafter provided for, in lieu of any other liability whatsoever, shall exist against an employer for any personal injury accidentally sustained by his employee, and for his death, . . .’

“That language was deleted by a Revisor’s bill, ch. 403, Laws of 1931. However, the Revisor’s note in 1931, appended as a footnote to sec. 102.01, Stats. 1933, states:

“`This revision of chapter 102 of the statutes is for the purpose of clarifying and simplifying the language, improving the arrangement, omitting unnecessary words, repealing expressly provisions which have been impliedly repealed by later enactments, and facilitating the finding and citing its various provisions. The meaning of the chapter remains the same as before. It is the intention to change the verbiage without changing the law.’

“Consequently, the act continues to have the legal effect of sec. 2394-4, Stats. 1911, notwithstanding the 1931 revision, because revisions of statutes do not change their meaning unless the intent to change the meaning necessarily and irresistibly follows from the changed language. State v.

Page 149

Maas, 246 Wis. 159, 16 N.W.2d 406; City of Milwaukee v. Milwaukee County, 236 Wis. 7, 294 N.W. 51.

“In enacting the act, the legislature intended to impose upon employers an absolute liability, regardless of fault; and in return for this burden, intended to grant employers immunity from all tort liability on account of injuries to employees.”

What we have held in these cases is that the sole liability of an employer because of the injury of an employee in the course of his employment, either to the employee or to anyone else, is under the Workmen’s Compensation Law.

In 2 Larson, Law of Workmen’s Compensation, p. 230, sec. 76.21, the author states:

“The great majority of jurisdictions have held that the employer whose concurring negligence contributed to the employee’s injury cannot be sued or joined by the third party as a joint tort-feasor, whether under contribution statutes or at common law. The ground is a simple one: The employer is not jointly liable to the employee in tort; therefore he cannot be a joint tort-feasor. The liability that rests upon the employer is an absolute liability irrespective of negligence, and this is the only kind of liability that can devolve upon him whether he is negligent or not. The claim of the employee against the employer is solely for statutory benefits; his claim against the third person is for damages. The two are different in kind and cannot result in a common liability.”

Thus it appears that Wisconsin is in line with the majority rule throughout the country. Our decisions in the Regal Ware, Guse, and Beck Cases determine the issue before us. However, Associated is of the opinion that this court receded somewhat from those decisions by language used in the first appeal in this matter (5 Wis.2d 100, 107):

“The tort-liability issue is still open to the defendants to raise by answer to Smith’s proposed complaint, and must be decided independently of the releases executed in settlement

Page 150

of the James action. If, for example, it should be determined that James’ injury was due to negligence of fellow employees, as well as defects in the apron worn, and, therefore, Kennedy-Ingalls may have yielded up a valuable right of contribution in the settlement of the James action which would have inured to the defendants’ benefit, it may be determined that Smith should be denied subrogation. The holding herein that a showing of subrogation has been made by Smith’s proposed complaint will not be conclusive on this issue when the same is later litigated on the merits.”

Nothing in the aforequoted language is open to the interpretation that the intervening plaintiff might be liable in tort to Associated for any damages it may have been required to pay Kennedy-Ingalls. However, such language might be pertinent to the defenses Associated has raised by answer to the cause of action of the intervening plaintiff.

The trial court, therefore, was correct in its ruling.

By the Court. — Order affirmed.