Regan v. Regan v. C., M. & St. P. Ry.

• Decision Date: 24 March 1881
• Parties: REGAN, ADM'R, ETC., v. C., M. & ST. P. RY.
• Court: Wisconsin Supreme Court

51 Wis. 599

8 N.W. 292

REGAN, ADM'R, ETC.,

v.C., M. & ST. P. RY.

Supreme Court of Wisconsin.

Filed March 24, 1881.

Appeal from circuit court, Waukeska county.

J. V. V. Platto and P. H. Carney, for appellant.

Melbert B. Cary, for respondent.

COLE, C. J.

This is an action under sections 12 and 13, c. 135, Tay. Rev. St., for the wrongful and negligent killing of the plaintiff's intestate by the servants of the defendant corporation. On demurrer, the complaint was held bad as not stating a cause of action. The specific objection taken and relied on in this court is that no facts are set forth in the complaint which show that the beneficiaries designated in the statute have sustained any pecuniary injury by the death of the intestate. It is insisted by the ingenious counsel for the defendant that in actions of this nature it is essential both to allege and prove not only that there are persons entitled by law to claim the indemnity given, but also that such persons have sustained an actual pecuniary loss justifying their claim, otherwise no recovery can be had. The complaint alleges that the deceased left him surviving his wife, Mary Regan, now his widow, and several children, among the number this plaintiff; “and that, by means of the wrong and injury aforesaid, he has sustained damages in the sum of $5,000.” This is all there is stated in the complaint to show what pecuniary loss was sustained by any one.

Now we are inclined to hold the objection to the complaint good for the reason stated. Under the statute the personal representative is clearly the proper party to bring the action. Whiton v. The C. & N. W. Ry. 21 Wis. 306;Woodward v. Same, 23 Wis. 400. But, while this is so, the recovery is not for his benefit nor the benefit of the estate; but the recovery is for the benefit of the relatives of the deceased, mentioned in the statute, who are presumed to have, or do “have, a pecuniary interest in the life of the person killed, and the value of this interest is the amount for which the jury are to give their verdict.” Comstock, J., in Quinn v. Moore, 15 N. Y. 432, 435. The statute, evidently goes upon the theory that these relatives may sustain a direct pecuniary loss in being deprived of a life to them of some value, consequently the wrong-doer is made responsible in damages. Compensation to them is made, and facts should be stated showing that they have sustained some pecuniary loss or damage by the wrongful act. The learned counsel for the plaintiff insists that when it appears that a father and husband has been killed, as it does here, the presumption in law is that his family has sustained a pecuniary injury by his death, and that this implication arises from the allegations of the complaint. But surely it would not be correct in all cases to make such a presumption, for we well know that sometimes, in consequence of age, indolent or dissolute habits, infirmities of body or mind, the deceased not only has failed to contribute anything while living to the support of his family, but has been an actual expense and burden to them. It is well settled that, under this statute, it is only for a pecuniary loss that the action is maintainable, and not for loss of society, or damages in the way of solatium. Potter v. C. & N. W. Ry. 21 Wis. 373;Blake v. Midland Ry. 10 Eng. L. & Eq. 437; Duckworth v. Johnson, 4 Hurl. & N. 653. And it seems to us that correct pleading requires that facts should be stated in the complaint showing that the beneficiaries have sustained some pecuniary loss or damage by the death, and that this should not all be left to inference from the fact of killing. It is only material issuable facts which need be stated, and generally it might be sufficient to show the age, occupation, and ability of the deceased to contribute to the support of his family.

Mr. Justice Duer, in Safford v. Drew, 3 Duer, 627-633, states the rule which should be observed in the following language: “It follows that in actions under the statute the damages that may be recovered are limited to a mere indemnity, and in all cases where the damages are thus limited I apprehend the facts that there are persons entitled by law to claim the indemnity, and that they have sustained a loss justifying their claim, must be proved upon the trial in order to warrant a recovery; and that, when these...