McGonegle v. Wis. Gas & Elec. Co.

• Citation: 178 Wis. 594,190 N.W. 471
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 08 November 1922
• Parties: MCGONEGLE ET UX. v. WISCONSIN GAS & ELECTRIC CO.

178 Wis. 594

190 N.W. 471

MCGONEGLE ET UX.

v.WISCONSIN GAS & ELECTRIC CO.

Supreme Court of Wisconsin.

Nov. 8, 1922.

Appeal from Circuit Court, Kenosha County; E. B. Belden, Judge.

Action by Lewis McGonegle and wife against the Wisconsin Gas & Electric Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Action to recover damages for the wrongful death of plaintiffs' minor son, 2 years and 10 months of age. The jury assessed damages as follows: (a) For loss of services of the child during minority, $500; (b) pecuniary benefits the parents might reasonably expect to receive from said child after he attained the age of 21 years, $1,000; and (c) expenses incident to death of child, $321.50. Judgment was rendered on said verdict in favor of the plaintiffs for $1,821.50, together with interest and costs. From such judgment, defendant brings this appeal.

Eschweiler, J., dissenting.Van Dyke, Shaw, Muskat & Van Dyke, of Milwaukee, for appellant.

Robert V. Baker, of Kenosha, for respondents.

OWEN, J.

[1] The only question raised upon this appeal is whether the $1,000 awarded for pecuniary benefits the parents might reasonably expect from their child after he attained the age of 21 years has any foundation in the evidence. The total amount of damages awarded for the loss of the child's services was $1,500. This is not excessive, when compared with other verdicts which have been sustained. Thus, in Ewen v. Railway Co., 38 Wis. 613, a $2,500 verdict for the death of a 9 year old son was sustained. In Strong v. City of Stevens Point, 62 Wis. 255, 22 N. W. 425, a $1,200 verdict for the death of an 8 year old boy was sustained. In Johnson v. Railway Co., 64 Wis. 425, 25 N. W. 223, a verdict for $2,500 for the death of a 7 year old son was sustained. In Lomoe v. Superior Water, Light & Power Co., 147 Wis. 5, 132 N. W. 623, a verdict for $2,500 for the death of a 10 year old boy was affirmed. In Hoppe v. Railway Co., 61 Wis. 357, 21 N. W. 227, a verdict for $1,000 for the death of a 16 months old boy was sustained. In Potter v. Railway Co., 21 Wis. 372, 94 Am. Dec. 548, and 22 Wis. 615, decided in 1868, it was intimated that a verdict for $2,000 for the death of a 12 year old girl, would be sustained. In Ihl v. Railway Co., 47 N. Y. 317, 7 Am. Rep. 450, decided in 1872, a verdict of $1,800 for the death of a 3 year old child was sustained. In a recent case in Minnesota, Drimel v. Union Power Co., 139 Minn. 122, 165 N. W. 1058, a verdict of $3,400 for the death of a girl between 5 and 6 years of age was sustained.

[2] As we understood appellant's position, it is not contended that the verdict as a whole is excessive, but that there is no evidence upon which the jury could find that the plaintiffs might reasonably expect any pecuniary benefits from the child after he became 21 years of age. As parents are not entitled to the services of a child except during minority, it is apparent, and courts have held, that it requires a different order of proof to justify an assessment of damages for pecuniary loss during the period subsequent to the attainment of the child's majority. While the statute creating the cause of action (section 4256, Stats.) authorizes the jury to give such damages as “they may deem fair and just” in reference to the pecuniary injury resulting from the death of the child, there must be some evidence justifying an inference that the parents would have received pecuniary benefits after the attainment of the child's majority, if death had not occurred. True, evidence of this nature cannot be very direct or conclusive, but it should be such as the circumstances of the case will permit. The age of the parents, their state of health, earning capacity, and financial condition, to show the probable necessity for contributions from the child, should appear. The disposition and ability of the child to contribute should also appear, where that is possible to be shown. These facts will furnish a foundation from which the jury, in the exercise of their own judgment and discretion, based on their knowledge of the ordinary affairs of life and the probabilities arising from their experience and observation, may conclude that a continuance of life would have resulted in pecuniary benefits to the parents, even after the attainment of the child's majority.

From the very nature of things much must be left to the discretion and good judgment of the jury. The statute so contemplates. It authorizes them to give such damages as “they may deem to be fair and just.” To require anything like that degree of certainty upon which the ordinary verdict must rest would be to render the statute nugatory. But because the matter does rest in the discretion and judgment of the jury, they should have the benefit of all present facts which tend to throw light upon the future probabilities. This principle is firmly established. Potter v. Chicago & Northwestern Ry. Co., 21 Wis. 372, 94 Am. Dec. 548;Id., 22 Wis. 615;Wiltse v. Tilden, 77 Wis. 152, 46 N. W. 234;Tuteur v. Chicago & N. W. R. Co., 77 Wis. 505, 46 N. W. 897;Thompson v. Johnston Bros. Co., 86 Wis. 576, 57 N. W. 298;Decker v. McSorley, 111 Wis. 91, 86 N. W. 554;...