Harris v. Kelley

• Citation: 70 Wis.2d 242,234 N.W.2d 628
• Decision Date: 28 October 1975
• Docket Number: No. 105,105
• Parties: Betty M. HARRIS and Marilyn J. Lynn, as Individuals and as the administrators of the Estate of Charles A. Myers and Ruth E. Myers, Deceased, Respondents, v. Thomas E. KELLEY, Jr., and State Farm Mutual Automobile Insurance Company, a Foreign Insurance Corporation, Appellants. (1974).
• Court: Wisconsin Supreme Court

Page 628

234 N.W.2d 628

70 Wis.2d 242

Betty M. HARRIS and Marilyn J. Lynn, as Individuals and as the administrators of the Estate of Charles A Myers and Ruth E. Myers, Deceased, Respondents, v. Thomas E. KELLEY, Jr., and State Farm Mutual Automobile Insurance Company, a Foreign Insurance Corporation, Appellants.

No. 105 (1974).

Supreme Court of Wisconsin.

Oct. 28, 1975.

The order appealed from overruled a demurrer to the complaint made upon the ground the complaint did not state facts sufficient to constitute a cause of action.

The case involves a construction of our wrongful death statutes.

The significant facts alleged in the complaint, for the purpose of this appeal, are as follows: Charles A. Myers and his wife, Ruth, died instantly as a result of personal injuries suffered from an automobile collision occurring January 1, 1972, in Green county. One automobile was operated by the deceased Charles A. Myers and the other by the defendant Thomas E. Kelley, Jr. The plaintiffs are the administrators of the estates and surviving children of Charles and Ruth Myers. It is agreed by counsel that the plaintiffs are adults and emancipated.

The demurrer is supported by a statement that sec. 895.04(4), Stats., as amended by ch. 59, Laws of 1971, removed adult children as a class of persons entitled to recover damages for pecuniary injury for the wrongful death of their parents.

William F. Donovan, Noll, Donovan, Bolgrien & Ruth, Beloit, for appellants.

Larry J. Eggers, Hansen, Eggers, Berres & Kelley, S.C., Beloit, for respondents.

BEILFUSS, Justice.

The issues are whether the statute as amended excludes nondependent adult children from recovering pecuniary damages and, if so, whether the statute is constitutional.

Sec. 895.04(4), Stats., as amended by ch. 59 of the Laws of 1971, became effective July 3, 1971. It provides as follows:

'Judgment for damages for pecuniary injury from wrongful death, and additional damages not to exceed $5,000 for loss of society and companionship, may be awarded to the spouse, unemancipated or dependent children or parents of the deceased.'

Immediately prior to the 1971 amendment the same section read as follows:

'Judgment for damages for pecuniary injury from wrongful death shall not exceed $35,000. Additional damages not to exceed $5,000 for loss of society and companionship may be awarded to spouse, unemancipated or dependent children or parents of deceased. If the decedent leaves a dependent child under 21 years of age, the above maximum limit for pecuniary loss recoverable shall be increased $2,000 on account of each such child but not exceeding a total increase of $10,000.'

The parties agree that the statute as it now exists, if literally read, excludes nondependent adult children from the class of relatives that can bring an action for pecuniary damages.

The plaintiffs argue that from the long history of the wrongful death statute it is apparent that the legislature's sole objective in the amendment was to remove any limitation as to the amount that could be recovered for pecuniary loss; and that there was no intention to remove emancipated or nondependent adult children from the class of relatives that could sue for pecuniary damages.

The trial court agreed and concluded that sec. 895.04(4), Stats., was ambiguous when read with sec. 895.04(2). It reasoned that the wrongful death statute must be read and construed as a whole and because sec. 895.04(2) includes adult nondependent children as lineal heirs entitled to bring an action in the succession provided for in the statute, the apparent exclusion of this class in sec. 895.04(4) creates an inconsistency and therefore an ambiguity to be resolved by judicial construction to determine the real intent of the legislature. The trial court further noted that adult children, as lineal heirs, had heretofore been entitled to recover damages for pecuniary injury, and that prior revisions of sub. (4) had been concerned with expanding recovery by either increasing the amounts recoverable or adding classes of persons entitled to recovery. Secondly, the court pointed our that the captioned title of the amending Act ¹ indicates no intent to limit classes of persons entitled to recover. The analysis of the Act by the Legislative Reference Bureau ² and the minutes of the Advisory Committee on Auto Accident Liability of the Legislative Council demonstrate that the sponsors of the bill did not intend the result which a literal reading of the amended section would require.

The right to recover for the wrongful death of another is purely statutory. Bradley v. Knutson (1974), 62 Wis.2d 432, 435, 215 N.W.2d 369; Cogger v. Trudell (1967), 35 Wis.2d 350, 151 N.W.2d 146; Cincoski v. Robers (1958), 4 Wis.2d 423, 90 N.W.2d 784. Under sec. 895.03, Stats., a person who causes the death of another by his wrongful act, neglect or fault, is to be liable to an action for damages whenever such wrongful act, neglect or fault would have entitled the injured party to maintain an action and recover damages had death not ensued. This section merely authorizes recovery by establishing the responsible party's liability, and does not state who is entitled to maintain the action, the type and amount of damages recoverable, or to whom the recovery belongs. Those determinations must be made by reference to the provisions of sec. 895.04, Stats. See, generally, Herro v. Steidl (1949), 255 Wis. 65, 37 N.W.2d 874.

Sub. (1) of that statute provides that an action for wrongful death may be brought by the personal representative of the deceased or 'by the person to whom the amount recovered belongs.' Sub. (2) sets forth the order in which surviving parties are entitled to bring the action. Cincoski v. Rogers, supra; Nichols v. United States Fidelity & Guaranty Co. (1961), 13 Wis.2d 491, 109 N.W.2d 131. Under this section, 'the amount recovered' is to be paid, initially, to the spouse of the deceased, with special provision being made for the support of minor children. If no minor children survive, the spouse is entitled to the entire amount. In the absence of a surviving spouse, the amount recovered is to go to the 'lineal heirs' of the deceased as determined by the priorities established in sec. 852.01, Stats. If no lineal heirs survive, the amount recovered belongs to the deceased's brothers and sisters.

Both parties appear to concede that under old sub. (4), emancipated and nondependent adult children were entitled as 'issue' and 'lineal heirs' to recover damages for pecuniary injury resulting from the wrongful death of a parent. See Tuteur v. Chicago & N.W. Ry. Co. (1880), 77 Wis. 505, 46 N.W. 897. Both parties also concede that emancipated and nondependent adult children have never been entitled, under any version of sub. (4), to recover damages for loss of society and companionship resulting from the wrongful death of a parent. Cincoski v. Rogers, supra; Herro v. Steidl, supra.

The defendants contend that sec. 895.04, Stats., as amended, is not ambiguous and that the trial court therefore erred in placing a judicial construction on the statute which is contrary to its literal wording. The primary purpose in construing statutes, of course, is to determine the legislative intent. See Scanlon v. Menasha (1962), 16 Wis.2d 437, 114 N.W.2d 791; State ex rel. Mitchell v. Superior Court (1961), 14 Wis.2d 77, 109 N.W.2d 522; State ex rel. Racine County v. Schmidt (1959), 7 Wis.2d 528, 97 N.W.2d 493. However, when a statute is plain and unambiguous, interpretation is unnecessary and intentions cannot be imputed to the legislature except those to be gathered from the terms of the statute itself. See Honeywell, Inc. v. Aetna Casualty & Surety Co. (1971), 52 Wis.2d 425, 429, 190 N.W.2d 499; Green Bay Metropolitan Sewerage Dist. v. Vocational, Technical & Adult Ed. (1973), 58 Wis.2d 628, 207 N.W.2d 623; Cartwright v. Sharpe (1968), 40 Wis.2d 494, 162 N.W.2d 5.

Because statutes are to be viewed, initially, in light of the plain and ordinary meaning of their language, it is impermissible where that meaning is clear to consider what the persons introducing or preparing the bill actually intended. Estate of Matzke (1947), 250 Wis. 204, 26 N.W.2d 659. As a general rule then, a statute must be unclear or ambiguous before a court is warranted in reviewing matters outside the statutory language to determine the meaning intended. Weather-Tite Co. v. Lepper (1964), 25 Wis.2d 70, 130 N.W.2d 198.

Standing alone, sub. (4) of sec. 895.04, Stats., clearly eliminates emancipated and nondependent minor children from the class of beneficiaries entitled to recover pecuniary damages resulting from the wrongful death of a parent. The language of the subsection is clear and unambiguous. Even if read with sec. 895.04(2), it does not create an inconsistency that makes it ambiguous. The section still provides for the right to bring an action for pecuniary damages by the deceased spouse, and unemancipated or dependent children and the parents who are by definition 'lineal heirs.'

The statute as now written is not ambiguous and the court cannot, under guise of judicial statutory construction, rewrite the statute to reflect the intention the legislature might have had. ³

The plaintiffs also contend that if sec. 895.04(4), Stats., excludes the nondependent and emancipated adult children from recovering pecuniary loss, the statute is unconstitutional as a denial of equal protection. This argument is based upon the premise that insofar as recovery of damages for pecuniary injury is concerned, a distinction between dependent and unemancipated minor children and emancipated and nondependent adult children is irrational, arbitrary and capricious.

While the legislature may, in creating particular rights of action, distinguish between classes of persons, this classification must be based on proper economic, political or social basis. Christoph v. Chilton (1931), 205 Wis. 418, 421, 237...