Keasler v. Milwaukee Elec. Ry. & Light Co.

• Decision Date: 07 February 1928
• Citation: 217 N.W. 687,195 Wis. 108
• Parties: KEASLER v. MILWAUKEE ELECTRIC RY. & LIGHT CO.
• Court: Wisconsin Supreme Court

195 Wis. 108

217 N.W. 687

KEASLER

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.

Supreme Court of Wisconsin.

Feb. 7, 1928.

Appeal from a judgment of the Circuit Court for Racine County; James Wickham, Judge presiding.

Action by William W. Keasler, administrator of the estate of Emma C. Keasler, deceased, against the Milwaukee Electric Railway & Light Company. Judgment for defendant, and plaintiff appeals. Affirmed.--[By Editorial Staff.]

Action commenced in April, 1926, to recover damages consequent upon an accident to plaintiff's mother on September 13th, resulting in her death on September 22, 1925.

No contest is made as to defendant's responsibility for the accident to Mrs. Keasler, or to the jury's award for her damages and as recovered by her estate.

The plaintiff, 41 years old, sole child and administrator of the estate of his mother, asserts the right, upon the verdict in that regard, to recover as the pecuniary injury to him consequent upon the mother's death, the sum of $2,677.29. His situation being that he was required by the terms of one divorce judgment to pay, at the time his mother died, to his son the sum of $2,000, without interest, and by a second divorce judgment to pay his second wife, also upon his mother's death, $5,000, also without interest. The trial court on motions after verdict changed the answers of the jury in this regard and denied plaintiff relief.

From the judgment of May 7, 1927, in that respect plaintiff appeals.McGovern, Lyons, Curtis, Devos & Reiss, of Milwaukee, for appellant.

Simmons, Walker & Wratten, of Racine, for respondent.

ESCHWEILER, J.

Plaintiff here asserts that but for the accident to and consequent death of his mother caused by defendant's negligence, the time for the payment of the two judgments aggregating $7,000 would have been deferred at least 8 years, the mother's then expectancy of life at her then age of 71 years, and that as a relative of the deceased he suffered as pecuniary injury resulting from her death, the present worth of the interest he was required to pay upon the money he borrowed upon the so hastened death of the mother to pay these two judgments.

[1] His action was properly maintained under section 331.03, Stats., permitting recovery for a death by wrongful act. The persons by whom and for whose benefit such damages are recoverable are specified in section 331.04, which provides, in substance, that the amount recovered in such action shall belong and be paid over to certain specified relatives of such deceased person in the respective order of husband or wife; lineal descendants; lineal ancestors; and finally, brothers and sisters. No other relatives or persons than such are within its terms. The statutory provision as to damages is that the jury may allow such damages, not in excess of $10,000, as they may deem fair and just in reference to the pecuniary injury resulting from such death to the above specified relatives of the deceased. The other provisions are not material here.

It is clear from this statute that the plaintiff here, a son, one of the relatives specified in said statute, must show, first, that he sustained a pecuniary injury; and second, that such pecuniary injury was incident to or consequent upon such relationship.

[2] The statutes here involved, supra, create rights and recognize remedies not known to the common law. Brown v. C. & N. W. Ry. Co., 102 Wis. 137, 139, 77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579;St. L., I. M. & S. Ry. v. Craft, 237 U. S. 648, 655, 35 S. Ct. 704, 59 L. Ed. 1160;Panama R. R. Co. v. Rock, 266 U. S. 209, 211, 45 S. Ct. 58, 69 L. Ed. 250;Flash v. L. W. R. R., 137 La. 352, 68 So. 636, L. R. A. 1916E, 112.

[3] By the plain letter of the statute and repeated decisions, the amount recovered must be limited to the pecuniary or financial loss as distinguished from the distinct element often recognized as proper for consideration in many other actions of injuries of a sentimental nature and to the feelings. Potter v. C. & N. W. Ry. Co., 21 Wis. 372, 374, 94 Am. Dec. 548, quoted and approved in Leque v. Madison G. & E. Co., 133 Wis. 547, 553, 113 N. W. 946;First Wis. Trust Co. v. Schmidt, 173 Wis. 477, 482, 180 N. W. 832.

That the “pecuniary injury” of the statute must be limited to such as have a direct connection with the family relationship existing between the person seeking to recover and the deceased is well illustrated in the cases passing upon the question of the right to recover in such an action for the amount expended for the burial of the deceased. If the suing relative be one upon whom the law places the duty or obligation of payment of such expenses he may recover as the father, for instance, as shown in the case of Secard v. Rhinelander L. Co., 147 Wis. 614, 622, 133 N. W. 45, or, as stated in Cochrane v. C. Hennecke Co., 186 Wis. 149, 153, 202 N. W. 199, the widow may; while if the duty is not so placed or the payment made by the relative suing, such item belongs to the estate of the deceased and may be recovered there as is stated in Herning v. Holt Lumber Co., 153 Wis. 101, 108, 140 N. W. 1102, for primarily, the funeral expenses are a charge against the estate of the deceased. Will of Borchardt, 184 Wis. 561, 568, 200 N. W. 461;Estate of Kelly...