Krause v. Home Mut. Ins. Co.

• Decision Date: 28 November 1961
• Citation: 14 Wis.2d 666,112 N.W.2d 134
• Parties: Judith Ann KRAUSE et al., Appellants, v. HOME MUTUAL INSURANCE CO., a Wisconsin corporation et al., Respondents.
• Court: Wisconsin Supreme Court

Page 134

112 N.W.2d 134

14 Wis.2d 666

Judith Ann KRAUSE et al., Appellants, v. HOME MUTUAL INSURANCE CO., a Wisconsin corporation et al.,

Respondents.

Supreme Court of Wisconsin.

Nov. 28, 1961.

Rehearing Denied Feb. 6, 1962.

Action to recover damages for the wrongful death of Catherine Krause. The plaintiffs are the children of John Krause and said Catherine Krause.

The complaint alleges that on June 30, 1957, Mrs. Krause was a guest-passenger in an automobile driven by her husband, John Krause, when it collided with an automobile driven by Raymond E. Ott; that the collision resulted in the immediate death of said Catherine Krause and that on July 4, 1957, John Krause died of injuries he received in the accident, and that the collision was the result of negligence on the part of both drivers.

The action was commenced against the insurers of each of the drivers. Home Mutual Insurance Company, the insurer of John Krause, demurred to the complaint on the ground that the same does not state facts sufficient to constitute a cause of action against it.

An order was entered on February 21, 1960, sustaining the demurrer of Home Mutual Insurance Company and directing that a judgment be entered dismissing the plaintiffs' complaint as to it, with costs. The plaintiffs appealed from said order.

Brazeau, Brazeau, Potter & Cole, Wisconsin Rapids, for appellants.

Byrne, Bubolz & Spanagel, Appleton, Wm. S. Pfankuch, Appleton, of counsel, for respondents.

BROADFOOT, Justice.

The issue to be determined is whether the plaintiffs have a cause of action for the wrongful death of their mother against the estate of their father under the allegations of the complaint. If they do, the complaint states a cause of action against the father's insurance company.

The company contends that since the father was negligent he, as the surviving spouse, could have no cause of action against himself. It is further contended that while he may have committed a tort against his wife he neither breached nor had any duty to any of the deferred beneficiaries under the provisions of sec. 331.04(2), Stats. Therefore, it is argued, a new cause of action in persons he owed no duty to, not brought into existence at the time of the accident, cannot be created because of his death.

The trial court adopted the view of the insurance company and stated in its memorandum decision:

'We, therefore, are now confronted with a situation where the preferred beneficiary, the surviving spouse, had no valid cause of action for the wrongful death of his wife but that the claim is now asserted that in view of his death following the death of his wife, a new cause of action--a new right--is created in the deferred beneficiaries, the children, as of the time of the death of the preferred husband beneficiary.

'The difficulty with that contention is that it contemplates an entirely new cause of action not brought into being at the time of the tort committed by the husband which contributed to the death of his wife, but created by the death of the husband beneficiary and tortfeasor.

'At the time of the commission of the act which caused the death of his wife, John Krause breached no duty he owed to any of the deferred beneficiaries under Section 331.04(2) of the Statutes. At most, he barred--by his own negligence--any right to recover for her wrongful death, with the result that no cause of action for wrongful death of Mrs. Krause accrued to anyone at the time that Mrs. Krause met her unfortunate instant death.'

These contentions are fallacious because based upon common-law principles and this is a statutory action. It is true that plaintiffs would have no cause of action at common law. The injustice and hardships resulting from the common-law principles in wrongful death cases caused the legislature to create statutory remedies and liability. The plaintiffs' rights depend upon a construction of secs. 331.01, 331.03, 331.031, and 331.04, Stats. These statutory provisions have already been construed in several cases, to-wit: Lasecki v. Kabara (1940), 235 Wis. 645, 294 N.W. 33, 130 A.L.R. 883; Eleason v. Western Casualty & Surety Co. (1948), 254 Wis. 134, 35 N.W.2d 301; Herro v. Steidl (1949), 255 Wis. 65, 37 N.W.2d 874; Arendt v. Kratz (1951), 258 Wis. 437, 46 N.W.2d 219; and Nichols v. United States Fidelity & Guaranty Co. (1961), 13 Wis.2d 491, 109 N.W.2d 131.

The insurance company and the trial court agree with the result reached in the Lasecki case, supra, but distinguish it from the present case because the husband and wife were killed in the same accident and presumably died simultaneously. They attempt to distinguish the other cases cited above upon the facts, which are, of course, different in each of the cases. However, in deciding those cases and in construing the statutes in question the conclusion was reached...