Koehler v. Waukesha Milk Co.

• Decision Date: 11 May 1926
• Citation: 208 N.W. 901,190 Wis. 52
• Parties: KOEHLER v. WAUKESHA MILK CO.
• Court: Wisconsin Supreme Court

190 Wis. 52

208 N.W. 901

KOEHLER

v.WAUKESHA MILK CO.

Supreme Court of Wisconsin.

May 11, 1926.

Appeal from Circuit Court, Milwaukee County; Walter Schinz, Judge.

Action by Frank J. Koehler, administrator of the estate of Erma Koehler, deceased, against the Waukesha Milk Company. From a judgment for defendant dismissing plaintiff's complaint, plaintiff appeals. Reversed and remanded, with directions.

The plaintiff and deceased were married in 1921. In February, 1922, a son was born, still living. Plaintiff claims and the jury found that on the morning of December 11, 1922, there was delivered to him by defendant a quart bottle of milk at the apartment then occupied by plaintiff and his family and others; that such bottle had a chip of glass broken off, leaving a fractured portion extending about one inch along the top edge and downward for about three-fourths of an inch and through the curved top rim, and that, in picking up such bottle, the deceased cut the second joint of the fourth finger of her right hand, and that her death was proximately caused by the negligence of defendant in delivering such bottle.

Plaintiff's testimony further disclosed: That remedies were applied by himself and the deceased, the finger was bandaged, and she continued some of her household duties for a time. She complained of pain the next day, and of very severe pain in four or five days. That on December 26th she walked a distance of several blocks and visited Dr. Taugher and made the last visit to him at his office on December 28th. That on December 31st she went to bed and did not rise again. On January 1st Dr. Taugher made a visit at the house and on the 2d or 3d made an incision on said finger removing some small hard substance from the same. Another physician was called in consultation on January 4th. From that time on deceased suffered great pain until her death from septicemia with a secondary infection of the face on January 8, 1923.

April 20, 1923, plaintiff was appointed administrator of her estate and brought this action to recover for her pain and suffering, for the expenses, and for the pecuniary loss to the husband. Plaintiff married again in June, 1923, and his child was taken care of by his mother since January, 1923.

Defendants showed that some 36,000 quart bottles were handled and examined daily for milk distribution. They were inspected in several departments, and 8 to 10 dozen daily rejected because found broken or defective. The driver in question, making about 230 stops and delivering over 200 such quarts daily, at this time used canvas gloves, seizing and carrying each full bottle by the top by thumb and fingers, and inserting his fingers in the empties in carrying them back to the wagon, was also charged with the duty of returning without delivering any bottle in the condition this bottle was found by the jury to have been in that morning.

The following are other material parts of the special verdict as answered.

(6) Mrs. Koehler did not fail to exercise ordinary care in the care and treatment of the finger.

(8) Mr. Koehler failed to exercise ordinary care in the care and treatment of his wife's finger.

(9) Such failure as found in question 8 proximately contributed to Mrs. Koehler's death.

(10) If plaintiff be entitled to recover then (1) $2,000 damages to the estate of Erma Koehler by reason of pain and suffering; (2) no damages for pecuniary injury sustained by Frank Koehler as the result of the death of his wife; (3) $673 damages for expenses for medical treatment.

Upon motions by the respective parties, the court directed judgment in favor of the defendant on the ground that upon the questions 8 and 9, supra, as answered by the jury, the negligence of the husband in the care and treatment of the injured finger was such as to defeat the plaintiff's right to recover, and dismissed the complaint.

From the judgment, plaintiff has appealed, and defendant seeks review of the trial court's denial of several of its motions after verdict.

Swietlik & Burns, of Milwaukee, for appellant.

J. P. Beuscher, of Milwaukee (W. A. Hayes, of Milwaukee, of counsel), for respondent.

ESCHWEILER, J. (after stating the facts as above).

[1] Upon the conflict of evidence in this case we cannot say that it was not within the province of the jury to find as they did on the material facts of this case, namely, that a quart milk bottle with a fractured rim was delivered at the apartment occupied by the plaintiff and the deceased on the morning in question, and that Mrs. Koehler did cut the fourth finger of her right hand while lifting said bottle and that the cut in question was the portal through which the fatal infection penetrated her blood stream, by reason whereof her death ensued.

[2] Assuming that the negligence of defendant in delivering the bottle in the condition aforesaid can be held to be the proximate cause in the eye of the law for the resulting pain, suffering, and death of Mrs. Koehler, a question to be discussed later, a cause of action arose forthwith in favor of Mrs. Koehler in her lifetime for the consequent pain and suffering intermediate the cutting of the finger and her death. Such cause of action, if any such there was, survived her death by express statutory provision (section 4253, now section 331.01, Stats.), which now provides that there survives, in addition to the actions surviving at common law, actions for assault and battery, false imprisonment, or other damage to the person. This includes personal injury actions. Lehmann v. Farwell, 95 Wis. 185, 189, 70 N. W. 170, 37 L. R. A. 333, 60 Am. St. Rep. 111;Brown v. C. & N. W., 102 Wis. 137, 141, 170, 77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579;Nemecek v. Filer & Stowell Co., 126 Wis. 71, 72, 105 N. W. 225;Klann v. Minn, 161 Wis. 517, 518, 154 N. W. 996.

The right to maintain such cause of action vests in the representative of the estate of said deceased, and the proceeds when collected are treated as personal property assets of the estate of said deceased and to be so distributed according to law. Such cause of action is a separate and distinct one from the cause of action purely statutory, given by section 4255, now section 331.03, which substantiallyfollows the so-called Lord Campbell's Act of England in 1846, abolishing here and there the common-law rule that for the death of a person there could be no damages recovered in favor of any survivor.

[3] The conditions requisite for a recovery under such death statute is that the wrongful act charged to have caused such death must have been such as would, if death had not ensued, have entitled the party injured to maintain an action, and the death must have been caused in this state. Section 331.03, supra. Suit may be brought in the name or names of those to whom the amount recovered shall, by the statute, belong as therein specified.

[4][5] The two actions, however, are separate and distinct--the one for the pain and suffering, present and enforceable from the moment of the injury; the one for the benefit of the survivors by reason of the death inchoate, so to speak, from the time of the injury to the consequent death, but ripening then and upon that event into the second and separate cause of action. As said in St. Louis, I. M. R. v. Craft, 237 U. S. 648, 658, 35 S. Ct. 704, 59 L. Ed. 1160, the one is for the wrong to the injured person, the other to the beneficiaries or survivors for their pecuniary loss; one begins where the other ends. It is not a double recovery, but a recovery for a double wrong. The two separate causes may be joined in one complaint, as was done here. Nemecek v. Filer & Stowell Co., 126 Wis. 71, 105 N. W. 225, supra.

By the special verdict, the jury assessed the sum of $2,000 as compensation for the pain and suffering undergone by Mrs. Koehler consequent upon the injury, this being the cause of action that survived, and found that the surviving husband, who under the death statute would be entitled to recover, suffered no pecuniary loss or injury by reason of the death of his wife.

The $2,000 damages for pain and suffering, if recovered, belongs as personal property to the estate of Mrs. Koehler, subject to the payment of her debts, and to be distributed, in the absence of will, according to the statute, namely, to the surviving child and not to the husband.

[6] The trial court was wrong therefore in holding that the negligence of the husband of the deceased in the care and treatment of the wife's finger, as found by the jury, was contributory negligence such as defeated the right of the estate to recover the $2,000 damages. The only contributory negligence that could be a bar to the right to recover on behalf of the estate for the pain and suffering would have been contributory negligence by Mrs. Koehler herself, and of all this she was acquitted, and quite properly so, by the jury.

The substantial and difficult matter still remains for determination as to whether or not there can be sustained a recovery in favor of the estate of Mrs. Koehler for her pain and suffering from blood poisoning preceding her resulting death. It presents very sharply and distinctly the question whether one who fails to exercise ordinary care, as that term is recognized in the law of negligence, in his acts, so as to avoid that which would ordinarily, and in the vast majority of cases, result in but a slight cut or puncture of the flesh by fractured glass as here, or as it might well be from a nail, pin, tack, pocket knife, splinter, or any of the almost infinite ways in which such things occur in daily life, and which cuts or punctures, as is common knowledge, in the vast majority of instances, are disregarded or have but self or home attention, and which if followed by a lawsuit, would properly result in slight or but nominal damages, must nevertheless be held answerable for very substantial damages when the unexpected, extraordinary, and that which is out of the usual course of...