Herro v. Steidl
| Decision Date | 07 June 1949 |
| Parties | HERRO v. STEIDL et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Waukesha County; Edward J. Gehl, Judge.
Affirmed.
Action commenced July 6, 1948, by Alfred A. Herro, ad administrator with will annexed of the Estate of Abdulla W. Herro, deceased, plaintiff and appellant, against Willard M. Steidl and American Casualty Company, a foreign insurance corporation, defendants and respondents, to recover damages resulting from the death of Abdulla W. Herro on October 12, 1947, from injuries received in an automobile accident. His widow died May 13, 1948. Defendants demurred to the third cause of action set forth in the complaint, relating to the loss of society and companionship of the deceased by his widow. Plaintiff appeals from the order sustaining the demurrer, dated October 14, 1948. The facts will be stated in the opinion. Marshall Arrieh, Milwaukee, Vilas L. Rasmussen, Oconomowoc, of counsel, for appellant.
George D. Young, Milwaukee, for respondents.
The complaint herein makes the following allegations: Abdulla W. Herro, seventy-one years of age, was struck by an automobile in the city of Oconomowoc on October 10, 1947. On October 12, 1947, he died from the injuries sustained in that collision. He was survived by his widow, Lottie Herro, and four children. The driver of the car that struck him was the defendant Steidl. Alfred A. Herro, son of the decedent, was appointed administrator with will annexed of the decedent's estate on November 18, 1947.
An action for wrongful death was commenced by the plaintiff as such administrator on July 6, 1948. The complaint contains three causes of action, each one alleging the identity of the parties, the issuance of the policy of insurance by the defendant casualty company, and that the injuries to decedent were caused by the negligence of the defendant driver. The first cause of action is for pain and suffering of decedent and for bills incurred for hospitalization, medical care and funeral expenses. The second cause of action is for pecuniary loss to the statutory beneficiaries of the decedent, and the third cause of action is for loss of society and companionship by decedent's widow.
On July 24, 1948, the defendants answered the first and second causes of action and demurred to the third cause of action on the ground that the allegations therein do not state facts sufficient to constitute a cause of action.
The memorandum opinion of the trial court indicates that the contention of the defendants on the demurrer was that the complaint in the third cause of action did not allege the existence of any person entitled to recover for loss of society and companionship under the provisions of sec. 331.04(2), Stats.
Lottie Herro, the widow, died on May 13, 1948, prior to the commencement of the action. The appellant raises this question: Does the right of the administrator to recover damages for loss of society and companionship pursuant to sec. 331.04(2), Stats., abate upon the death of decedent's widow prior to the commencement of the action where she was the only surviving beneficiary named therein? He claims that this question should be answered in the negative.
His first contention is that said subsection does not create a separate cause of action but only adds another element of damages to be recovered under sec. 331.04(1)(a), Stats. He is right in this contention. Cronin v. Cronin, 244 Wis. 372, 12 N.W.2d 677;Papke v. American Automobile Ins. Co., 248 Wis. 347, 21 N.W.2d 724.
His next contention is that recovery for loss of society and companionship, being merely an element of damages in an action for wrongful death, cannot abate, as only a cause of action can abate. Sec. 331.03, Stats., creates for the benefit of persons named in sec. 331.04(1)(a) a cause of action for the wrongful death of a person. No such action existed at common law because the death of the victim was considered to destroy his capacity to have a cause of action arising out of this event. The statutory action created by sec. 331.03, Stats., exists in the specific persons named in sec. 331.04, and depends upon the contingencies there recited. Sec. 331.04(2), Stats. provides: ‘In addition to the...
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Theama by Bichler v. City of Kenosha
...Co., 34 Wis.2d 542, 150 N.W.2d 137; and Ballard v. Lumbermens Mut. Casualty Co., 33 Wis.2d 601, 148 N.W.2d 65 (1967).11 Herro v. Steidl, 255 Wis. 65, 37 N.W.2d 874 (1949).12 Shockley v. Prier, 66 Wis.2d 394, 225 N.W.2d 495.13 Peot v. Ferraro, 83 Wis.2d 727, 266 N.W.2d 586 (1978).14 We note ......
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