Johnson v. Larson

• Decision Date: 26 November 1946
• Parties: JOHNSON v. LARSON et al.
• Court: Wisconsin Supreme Court

249 Wis. 427

25 N.W.2d 82

JOHNSON

v.LARSON et al.

Supreme Court of Wisconsin.

Nov. 26, 1946.

Appeal from an order of the County Court of Polk County; Howard D. Blanding, Judge.

Reversed.

Action brought under secs. 331.03 and 331.04, Stats., by Mary Johnson against the defendant Ervin Larson and others to recover damages for the death of plaintiff's daughter, Mary Jean Doherty, caused by Larson's negligence in operating a motor vehicle. Defendants filed a demurrer to plaintiff's complaint on the grounds (1) that there is a defect of parties in that the father of said deceased child is not a party plaintiff; and (2) that the complaint does not state facts sufficient to constitute a cause of action. The court overruled the demurrer and defendants appealed from the order.

Coe & Cameron, of Rice Lake, for appellants.

Nelton & McGinnis, of Balsam Lake, for respondent.

FRITZ, Justice.

The allegations in the complaint, so far as material on the questions raised on appeal, are that plaintiff is the mother of Mary Jean Doherty, who was ten years of age when her death was caused by the defendant Larson's negligence in operating a motor vehicle; that plaintiff is a housewife and has no property or income except such as is derived through her husband's business; that by reason of Larson's negligence plaintiff has sustained $12,500 pecuniary damages through the loss of future services of said child, $2,500 damages for loss of society and companionship, and $320 for burial expenses. There is no allegation in reference to the father of the deceased child, nor is it alleged that plaintiff or anyone else has paid the funeral expenses. Likewise there is no allegation that no cause of action exists in favor of the estate or a personal representative of the deceased child. And because there is no such allegation, defendants contend it does not appear that plaintiff can maintain this action to recover under secs. 331.03 and 331.04, Stats., for wrongful death in view of the provisions in sec. 331.04(1), Stats., that--

‘Every such action shall be brought by and in the name of the person representative of such deceased person, * * * provided, that if there be no cause of action in favor of the estate of such decedent and the person or persons to whom the whole amount sued for and recovered belongs, as above provided, shall be the husband, widow, or parent or parents, lineal descendant or ancestors, brothers or sisters of the deceased, suit may at his or her or their option be brought directly in his or her or their name or names instead of...