Lasecki v. Kabara

• Decision Date: 08 October 1940
• Citation: 294 N.W. 33,235 Wis. 645
• Parties: LASECKI et al. v. KABARA et al.
• Court: Wisconsin Supreme Court

235 Wis. 645

294 N.W. 33

LASECKI et al.

v.KABARA et al.

Supreme Court of Wisconsin.

Oct. 8, 1940.

Appeal from an order of the County Court of Shawano County; C. B. Dillett, County Judge.

Reversed in part, affirmed in part.

The action was commenced on September 23, 1939, by the plaintiffs, Albert Lasecki, as guardian ad litem of Alfred Lasecki, Clarence Lasecki, Leonard Lasecki, Rose Mary Lasecki, Alice Lasecki, Annette Lasecki and Metody Lasecki, infants, and Lucile Lasecki, an adult, to recover damages from the defendants, Anton Kabara, the Home Mutual Casualty Company, insurer of the Kabara automobile, and the Farmers Mutual Automobile Insurance Company, insurer of the automobile of Leonard Lasecki, deceased, for injuries received by the six infants last above named, and for the wrongful death of their mother, which injuries and death resulted from an automobile collision between the Kabara automobile and the Lasecki automobile, in which the six children and the mother were riding as guests of Leonard Lasecki, their father and husband.

The defendant, the Farmers Mutual Automobile Insurance Company, hereinafter called the Insurance Company, separately demurred to the complaint in so far as it attempted to state causes of action against it and in favor of Clarence, Leonard, Rose Mary, Alice, Annette and Metody Lasecki, grounded upon the negligence of their father, Leonard Lasecki, its insured, on the following grounds: “(a) That the same does not state facts sufficient to constitute a cause of action (against it); (b) that several causes of action have been improperly united; (c) that there is a defect of parties defendant in that the administrator of the estate of Leonard Lasecki (deceased) is not named a party defendant in the action.”

The Insurance Company likewise demurred to the cause of action asserted against it by all of the children of Leonard Lasecki, which was grounded, upon the wrongful death of their mother, Anna Lasecki, alleged to have been caused by the negligence of Leonard Lasecki, their father. The trial court was of the view that the complaint stated causes of action against the Insurance Company, based upon the negligence of Leonard Lasecki, and that the complaint also stated a cause of action against it based upon the wrongful death of their mother. From an order overruling the demurrers, entered March 25, 1940, the defendant, Insurance Company, appealed.

Eberlein & Eberlein, of Shawano, for appellant.

Winter & Koehler, of Shawano, for respondents.

NELSON, Justice.

[1] The plaintiffs' complaint is inartistically drawn in that the several causes of action against the several defendants are all run together without apparent attempt separately to state them. However, giving to the allegations of the complaint a liberal construction as we are required to do on demurrer, it appears that the plaintiffs attempted to state several causes of action grounded upon a collision between an automobile owned and driven by Leonard Lasecki, the father of the plaintiffs, and an automobile owned by the father of Anton Kabara and driven by the latter with the knowledge and consent of his father:

(1) Causes of action against Anton Kabara and the Home Mutual Casualty Company, the insurer of the Kabara automobile, grounded upon the negligence of Anton Kabara, which it is alleged caused the several injuries to Clarence, Leonard, Rose Mary, Alice, Annette and Metody, all of whom were riding in their father's automobile at the time of the collision.

(2) A cause of action in favor of the children of Leonard Lasecki just hereinbefore named and two others-Alfred and Lucile Lasecki,-who were not involved in the collision, against Anton Kabara and the Home Mutual Casualty Company, insurer of the Kabara automobile, grounded upon the wrongful death of their mother, Anna Lasecki, who was instantly killed in the collision and whose death, it was alleged, was negligently caused by Anton Kabara.

(3) Causes of action against the Farmers Mutual Automobile Insurance Company, insurer of the Lasecki automobile, by Clarence, Leonard, Rose Mary, Alice, Annette and Metody Lasecki, grounded upon the alleged negligence of their father, Leonard Lasecki, deceased, which, it is alleged, caused the collision and their injuries.

(4) A cause of action against the Farmers Mutual Automobile Insurance Company by all of the children of Leonard and Anna Lasecki, grounded upon the wrongful death of Anna Lasecki, their mother, which it is alleged, was caused by the negligence of Leonard Lasecki, deceased.

According to the allegations of the complaint, both Leonard, the father, and Anna, the mother, were instantly killed as a result of the collision.

[2] The sole questions for determination are: (1) Does the complaint state causes of action against the Insurance Company based upon the alleged negligence of Leonard Lasecki, the father of the six children, who, at the time of the collision, were riding as his guests in his automobile? (2) Does the complaint state a cause of action in favor of all of the children based upon the wrongful death of their mother, Anna Lasecki, whose death it is alleged was caused by the negligence of Leonard Lasecki, her husband, and the father of said children? The trial court did not specifically pass upon the following grounds of demurrer: “(b) that several causes of action have been improperly united,” and “(c) that there is a defect of parties defendantin that the administrator of the estate of Leonard Lasecki (deceased) is not named a party defendant in the action.” The defendant, Insurance Company, in its brief, does not refer to those grounds of demurrer so we may properly ignore them.

The Insurance Company contends that the demurrers to the causes of action asserted against it by the six injured children, based upon the alleged causal negligence of their father, should have been sustained on the authority of Wick v. Wick, 192 Wis. 260, 212 N.W. 787, 789, 52 A.L.R. 1113, and Segall v. Ohio Casualty Co., 224 Wis. 379, 272 N.W. 665, 110 A.L.R. 82. It was held in those cases that an unemancipated minor may not recover from his parent for the latter's negligence. The rule stated in Wick v. Wick, supra, has been assailed at times by members of the bar who represented unemancipated minors, seeking to recover for their parent's alleged negligence in cases where the parent was insured.

The universal rule in this country is in accord with Wick v. Wick, supra; Small v. Morrison, 185 N.C. 577, 118 S.E. 12, 31 A.L.R. 1135; Annotations in 31 A.L.R. 1157, 71 A.L.R. 1071 and 122 A.L.R. 1352.

The plaintiffs concede that the rule of Wick v. Wick, supra, is the universal rule but contend that it is not applicable to the facts alleged in this action. The question therefore arises: Is the rule of the Wick case applicable to the facts alleged here? There is a dearth of authority on the question whether an unemancipated minor, who in the lifetime of his parent had no cause of action against his parent, may in case of the parent's death file a claim against his estate based on the negligence of the parent, or bring an action against the administrator of his parent's estate grounded upon the parent's negligence. It is earnestly contended by the plaintiffs that since it appears from the allegations of the complaint that both parents are deceased the reasons advanced for the holding in the Wick case do not exist, and therefore the rule does not apply. The fact that there is no case which has passed upon the...