McKissick v. Schroeder
| Decision Date | 10 December 1975 |
| Docket Number | No. 546,546 |
| Citation | 70 Wis.2d 825,235 N.W.2d 686 |
| Parties | A. J. McKISSICK, Individually and as Special Administrator of the Estate of Clifford McKissick, Deceased, and Lois McKissick, his wife, Appellants, v. Ralph C. SCHROEDER and City of Milwaukee, a Municipal Corporation, Respondents. |
| Court | Wisconsin Supreme Court |
Eisenberg & Kletzke, Milwaukee, for appellants.
James B. Brennan, City Atty., Rudolph T. Randa, Asst. City Atty., Milwaukee, for respondents.
This appeal involves litigation growing out of an incident that occurred on August 2, 1967, in the city of Milwaukee. On that date Clifford McKissick, an eighteen-year-old youth, was shot and killed at the rear of his home as he was allegedly fleeing from the defendant policeman, Ralph Schroeder. According to the allegations of the defendants, the youth had been observed with a fire-bomb in the vicinity, and a warning shot was fired before the fatal shot.
Over eight years later a controversy still lingers over whether a sufficient complaint has been pleaded for the plaintiffs, A. J. McKissick, the father of Clifford McKissick, and Lois McKissick, Clifford's mother. Six complaints or amended complaints have been served on March 25, 1969, November 21, 1969, February 9, 1970, March 2, 1970, May 28, 1970 and July 20, 1973.
There have been numerous stipulations for continuation of time for pleading, several demurrers, thirty-four papers in all, and still there is no determination that there is a lawsuit in the sense that there is a cause of action or causes of action stated which are not subject to demurrer. Our legal system should be geared to provide parties who allegedly are injured, here A. J. and Mrs. Lois McKissick, an opportunity to have their grievances aired in a reasonably prompt manner.
We conclude that there is a valid cause of action stated for each plaintiff which meets the challenge of a demurrer. We, therefore, reverse in both respects and remand the matter to the trial court for further proceedings by way of answer and trial on the merits.
The trial court incorrectly sustained the defendants' demurrer to the wrongful death cause of action on the ground that the plaintiffs failed to state facts sufficient to constitute a cause of action. 1 The trial court did not specify in its opinion the particular defects in the complaint. The defendants now argue on appeal that this complaint is fatally defective because it does not allege that the deceased minor was capable of work or gainful employment and, therefore, fails to allege a factual basis for pecuniary injury to the parents.
The pertinent allegations of the complaint are as follows:
'1. That the above named plaintiffs, A. J. MCKISSICK and LOIS MCKISSICK, reside at 7001 North 100th Street, in the City and County of Milwaukee, State of Wisconsin, and were, prior to the death of CLIFFORD MCKISSICK, the parents of said CLIFFORD MCKISSICK, who died on August 2, 1967, a minor of the age of eighteen (18) years and who resided with his parents in the City and County of Milwaukee, State of Wisconsin. That the plaintiffs, individually and A. J. MCKISSICK, as special administrator of the estate of CLIFFORD MCKISSICK, are lineal heirs of the said CLIFFORD MCKISSICK and are the proper parties to bring the wrongful death action pursuant to Section 895.04 Wisconsin Statutes, the said CLIFFORD MCKISSICK being a single man at the date of his death and not having any children.
'. . .
'7. That as a proximate result of the aforesaid acts of negligence on the part of the defendants, the plaintiffs have sustained the following damages:
In our consideration of whether the allegations are sufficient to support a claim of pecuniary injury we are governed, of course, by two rules:
(1) Secs. 263.07 and 263.27, Stats., require that, in case of a demurrer to a complaint, the complaint shall be liberally construed by the court, with a view to achieving substantial justice between the parties; and (2) A plaintiff is entitled to all reasonable inferences which can be drawn from the facts pleaded. 2
At this stage of the proceedings, where we consider the allegations of the complaint and not what the proof will be at trial, it certainly can be reasonably inferred from all the facts alleged, especially the fact that the parents would lose 'furture support,' that the deceased was capable of work and gainful employment.
In challenging the complaint on this cause of action, the defendants rely upon the 1881 case of Regan v. Chicago, Milwaukee, & St. Paul Ry. 3 for the proposition that an allegation of ability to contribute to the survivors' support is essential and cannot be presumed. However, Regan can be distinguished in that there the plaintiffs alleged only survivorship and damages. There was no mention of the age or living conditions fo the deceased, nor any allegation that the survivors would lose future support, as there is in this case. In addition, the result in Regan was termed 'rather severe' in the later case of Luessen v. Oshkosh Electric Light & Power Co., 4 and the court decided that it should not be extended beyond its particular facts. The defendants also argue that the Luessen case requires an allegation that the deceased minor was able to work or be gainfully employed. Yet in Luessen the court adverted to the allegation of ability to work in holding the complaint sufficient only because there was no allegation that the father intended to rely upon the deceased minor for future support. In this case, where there is a specific allegation of loss of future support, it is not necessary to search for a further allegation of ability to work.
It should also be noted here that, quite irrespective of the question of pecuniary injury, the plaintiffs have alleged damages for loss of society and companionship and funeral expenses. The wrongful death statute allows these claims apart from any claim for pecuniary injury. 5 There is no question that the complaint is sufficient in regard to these claims.
The trial court incorrectly ruled that the second cause of action alleging intentional infliction of emotional distress to Mrs. McKissick was barred by the statute of limitations. The court ruled that the first allegations on this cause of action were contained in the fifth complaint which did not come into existence until March 29, 1971, and that this was more than three (3) years after the relevant incident occurred on August 2, 1967.
However, it appears from the record that Lois McKissick was attempting to allege a cause of action for the intentional infliction of emotional distress as early as the second complaint which was served on counsel for the defendants on November 21, 1969. In this second comolaint, Lois McKissick alleged that, in addition to her shock, she was also 'frightened by the activities of the Defendant, RALPH C. SCHROEDER, and other agents, of the Defendant CITY OF MILWAUKEE,...
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