Swanson v. Lake Superior Terminal & Transfer Railway Co.

Stevens, J.

The case presents the single question whether the plaintiff has any right to prosecute an action in tort against the defendant railway company. Sec. 102.29, of the Statutes provides 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.” The complaint alleges the making of the claim for compensation- and the reassignment of this cause of action in tort to the plaintiff by the employer.

Appellant’s position is that the Fuel Company has no cause of action to assign to the plaintiff until it has been finally determined that the Fuel Company is liable to pay compensation to the plaintiff. This position overlooks the fact that under the statute it is the making of the claim, not the payment of compensation, that operates to assign the cause of action in tort to the employer.

But even if the appellant’s construction of the statute were correct the demurrer must be overruled. The claim for compensation is either a lawful or an unlawful claim. If lawful, the making of the claim operated as an assignment of the cause of action in tort to the employer, who in turn has assigned it to the employee. If it was not a lawful claim, sec. 102.29 of the Statutes did not operate to assign the action in tort to the employer and the plaintiff is free to prosecute his action against the railway company. In either case the complaint states a cause of action.

By the Court. — Order affirmed.