Munsert v. Farmers Mut. Auto. Ins. Co.

• Decision Date: 11 October 1938
• Citation: 229 Wis. 581,281 N.W. 671
• Parties: MUNSERT v. FARMERS MUT. AUTOMOBILE INS. CO.
• Court: Wisconsin Supreme Court

229 Wis. 581

281 N.W. 671

MUNSERT

v.FARMERS MUT. AUTOMOBILE INS. CO.

Supreme Court of Wisconsin.

Oct. 11, 1938.

Appeal from a judgment of the Circuit Court for Oconto County; Arold F. Murphy, Judge.

Reversed.

Action by W. J. Munsert, as special administrator of the estate of John Malueg, deceased, against Farmers Mutual Automobile Insurance Company and others. From a judgment entered March 1, 1938, dismissing the complaint on the merits, the plaintiff appeals.

The action is by the special administrator of the estate of John Malueg, a minor six years old, to recover damages to the estate resulting from his death in the collision of a truck with an automobile in which he was riding found by the jury to have been proximately caused by the driver of the automobile. The automobile was driven by John's brother, Emanuel, an unemancipated minor seventeen years old, living with John in the home of his parents. The automobile was owned by the boys' father. The father held a policy of indemnity liability insurance issued by the defendant Farmers Mutual Automobile Insurance Company covering the automobile. The jury found that John was instantly killed and suffered no pain, so that no cause of action lay in favor of his estate. Emanuel was driving the automobile with his father's consent, but not on any errand or business for his father. The complaint also alleged a cause of action under the death by wrongful act statute. The parents of John are both living, so that damages recoverable go to the parents. The insurance policy contains the usual extended insurance clause required by statute, which makes the policy inure to one driving the automobile with the consent of the insured. Damages resulting to the parents were assessed by the jury as follows: Pecuniary loss, $800; loss of society and companionship, $2,000; funeral expenses, $205; for injury to the insured automobile, $300. The policy also contains a clause that excludes obligation “to the assured.” The complaint also alleged causes of action against the driver of the truck and the persons concerned deemed responsible for injuries resulting from his negligence, but the driver was acquitted of negligence. The defendant insurance company moved for judgment notwithstanding the verdict dismissing the complaint. The motion was granted and judgment was accordingly entered.Lehner & Lehner and Adolph P. Lehner, all of Oconto Falls, for appellant.

Wallrich & Aschenbrener, of Shawano (Sanborn, Blake & Aberg, and Edwin Conrad, all of Madison, of counsel), for respondent.

FOWLER, Justice.

Appellant's counsel conceive the question presented by the appeal to be whether the special administrator of the estate of an unemancipated minor killed by the wrongful act of his unemancipated minor brother can recover damages under the death by wrongful act statute when the deceased is instantly killed and the parents of the deceased are the beneficiaries under the act.

Certain propositions are conceded by counsel for both parties and we will spend no time in elucidating them. They are, that where one is instantaneously killed by wrongful act no cause of action lies against the wrongdoer by the administrator of his estate; that the parents here would be entitled to the recovery if one were allowed in the action for death by wrongful act; and that where there is no action in favor of the estate, the action for death by wrongful act may be brought directly by the beneficiaries under the act unless the beneficiaries by reason of the family relation existing between them and the wrongdoer are barred from bringing suit.

The issue as conceived by the appellant may, we think, be best considered by disposing of the propositions urged by the respondent towards controverting it. These propositions are (1) that parents cannot bring an action against their unemancipated minor child; (2) that the parents in this case are by that rule prevented from themselves bringing an action against Emanuel under the death by wrongful act statute; and (3) that as such an action cannot be brought by the parents directly it cannot be brought indirectly by the special administrator and the rule (1) thereby be obviated and rendered inoperative.

Two grounds are urged by the respondent in support of the rule (1). One is that the rule follows from the decision in Wick v. Wick, 192 Wis. 260, 212 N.W. 787, 52 A.L.R. 1113, which held that a minor living in the home of his father may not sue his father. The other is that the adjudicated cases so hold on grounds other than the grounds on which the rule of the Wick Case rests. In the view we take of the case there is no need to consider either of these grounds because, however it may be in other tort actions, the rules contended for do not apply to actions under the death by wrongful act statute, which is what the instant action is.

[1] The reason that moves us to hold that the rule of the Wick Case does not apply to actions in tort by parents against their unemancipated minor children living in their home, is the same that impelled the court in Wait v. Pierce, 191 Wis. 202, 209 N.W. 475, 210 N.W. 822, 48 A.L.R. 276, not to apply the rule later laid down in the Wick Case, wherein the court held that a wife could sue her husband in tort. The reasons that such a suit would tend to create family discord apply as strongly in suits between husband and wife as between father and son. That tendency is recognized in the opinion in the Wait Case, at page 216, 209 N.W. 475, 210 N.W. 822. But notwithstanding the existence of the tendency and the undisputed common law rule that a wife could not sue her husband in tort the court held that a wife could sue her husband in tort because statutes of the state so provide. The statutes construed as so providing are the various married women's acts referred to in the opinion of the Wait Case. None of the married women's acts expressly declare that a wife may sue her husband, but it was held that they so provide by implication. The implication...