Eleason v. W. Cas. & Sur. Co.

• Decision Date: 15 February 1949
• Citation: 254 Wis. 134,35 N.W.2d 301
• Parties: ELEASON et al. v. WESTERN CASUALTY & SURETY CO.
• Court: Wisconsin Supreme Court

254 Wis. 134

35 N.W.2d 301

ELEASON et al.

v.WESTERN CASUALTY & SURETY CO.

Supreme Court of Wisconsin.

Dec. 15, 1948.

Rehearing Denied Feb. 15, 1949.

Appeal from a judgment of the Circuit Court for Dunn County; Kenneth S. White, Judge.

Reversed in part and affirmed in part.Action begun on August 25, 1947, by Evelyn Eleason, administratrix of the estate of L. C. Brown and of Grace M. Brown, General Accident Fire and Life Assurance Corporation, Ltd., a corporation, and Arnold L. Brown, Evelyn Brown Eleason, Winnifred Brown Thompson, and Robert Eugene Brown, the lineal descendants of L. C. Brown, against Western Casualty and Surety Company, a corporation, to recover damages for the wrongful death of L. C. Brown.

L. C. Brown, a resident of Ridgeland, Wisconsin, was killed May 10, 1946, when he was struck by a truck driven by Rudolph Luer. Luer was also a resident of Ridgeland. He was employed as a truck driver by Knute Berg of Dallas, Wisconsin. At the time of the accident Luer had an epileptic seizure, became unconscious, and lost control of the truck. The truck ran over the street curb and struck Brown who was working on the construction of a building on that side of the street. Brown died in a few minutes without regaining consciousness. His wife, Grace M. Brown, died about two and a half hours later from the shock caused by her husband's death.

Luer evidently had epileptic seizures a number of times before but did not know what they were. It was generally known in the village that he had such spells. He had a driver's license and except for the seizures seemed to be a good driver. He did not remember if he had been asked whether he was subject to epilepsy when he received his driver's license.

The General Accident, Fire and Life Assurance Corp. was the Workmen's Compensation insurance carrier on the employer of L. C. Brown. It paid $6,405.12 because of the death of Brown. Evelyn Eleason, administratrix of the estates of L. C. Brown and of Grace M. Brown, and the General Accident, Fire and Life Assurance Corp. brought an action against Western Casualty and Surety Co., the casualty insurer of the truck for the wrongful death of L. C. Brown caused by Luer's alleged negligence. The trial court found that Luer was not negligent; that the epileptic seizure was an act of God and the collision an unavoidable accident; that Berg, the employer, was not guilty of negligence in hiring Luer. The court dismissed plaintiffs' complaint. Plaintiffs appeal.

Stafford & Stafford, of Chippewa Falls, and Slocumb & Bundy, of Menomonie, for appellants.

Ramsdell & King, George M. Carroll and Frank L. Morrow, all of Eau Claire, for respondent.

FAIRCHILD, Justice.

There are three questions to be determined on this appeal: (1) Was Luer negligent in operating a truck when he was subject to epileptic seizures? (2) Does a cause of action for wrongful death survive the death of the widow of L. C. Brown? (3) For whose benefit does a cause of action exist?

(1) Was Luer negligent in operating a truck when he was subject to epileptic seizures? The trial court held that he was not. The court regarded the

running down of deceased as having enough of the elements of an unavoidable accident to excuse Luer from all liability for the death of Brown. In the memorandum opinion the belief is expressed ‘that the epileptic seizure suffered by Luer may properly be classified as ‘an act of God’ and that the injury to L. C. Brown which followed was an unavoidable accident.' This conclusion lacks support because under sec. 85.13, Stats., it is unlawful for any one who is subject to epilepsy to operate an automobile. Under sec. 85.08(6)(f) one who is afflicted with or suffering from any ‘physical disability or disease such as to prevent him or her from exercising reasonable control over a motor vehicle’ is not entitled to a driver's license. There is the further provision in sec. 85.08(6)(j), Stats., which forbids the issuance of a license to any person subject to epileptic seizures. In considering the question of Luer's negligence the foregoing rules of law become of prime importance. They direct inquiry to Luer's physical or diseased condition. The term ‘act of God’ in its legal sense means such inevitable accident as cannot be prevented by human care, skill, or foresight. Chicago & Northwestern Railway Co. v. Sawyer, 69 Ill. 285, 18 Am.Rep. 613,Mueller Grain Co. v. Chicago, P. & St. L. R. Co. 200 Ill.App. 347. Had he complied with the statutes he would not have placed himself in a position to injure Brown. Hence because the injury might have been avoided by prudence and foresight it cannot be considered an act of God.

Luer knew he was subject to spells or seizures. This appears from his testimony. After telling of the last he could remember before he lost control over his machine he said that he had been subject to fits of epilepsy before-he did not know how long, but he had those spells off and on before that. ‘I never saw any doctor about these spells before the accident. I was right behind the wheel when I had this spell. I lost consciousness completely. * * * I do not think they call it epilepsy. These spells when I lose consciousness last about fifteen minutes. During that fifteen minutes I am completely unconscious. I do not know what is going on at all. After I come out of them I am awfully weak. I do not think I can guide a car when I am coming out of a spell. When these spells come on me I am just about done for a half day.’ He had suffered these seizures for approximately six years. It was generally known in the village that he was subject to such spells.

The trial court evidently based its ruling on the fact that Luer did not know that he had...