Nemecek v. Filer & Stowell Co.

• Decision Date: 24 October 1905
• Citation: 126 Wis. 71,105 N.W. 225
• Court: Wisconsin Supreme Court
• Parties: NEMECEK v. FILER & STOWELL CO.

126 Wis. 71

105 N.W. 225

NEMECEK

v.FILER & STOWELL CO.

Supreme Court of Wisconsin.

Oct. 24, 1905.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by Anna Nemecek, as administratrix of the estate of John Nemecek, deceased, against the Filer & Stowell Co. A demurrer to the complaint for misjoinder of causes of action was overruled, and defendant appeals. Affirmed.Hoyt, Doe, Umbreit & Olwell, for appellant.

Churchill, Bennett & Churchill, for respondent.

WINSLOW, J.

The plaintiff, as administratrix of the estate of one John Nemecek, deceased, brought action for the recovery of damages against the defendant corporation, and set forth in her complaint two separate causes of action. The first of said causes of action was to recover damages for the pain and anguish suffered by her intestate as the result of injuries received by him while at work as an employé in the defendant's machine shop and caused by defendant's negligence; the second, under Rev. St. 1898, §§ 4255-4256, to recover the pecuniary loss resulting to the father and mother of the intestate by reason of the subsequent death of the intestate as the result of the same injuries. A demurrer to the complaint on the ground that several causes of action had been improperly united was overruled, and the defendant appeals.

The question whether these two causes of action may be properly joined in the same complaint is now first presented to this court. It is settled in this state that a cause of action for personal injuries survives the death of the injured person; that it is to be prosecuted by the personal representative; that the damages recovered in such action are confined to those suffered by the deceased prior to his death, and go into the general fund of the estate of the deceased; that the action for the death is also to be prosecuted by the personal representative; that the damages in this latter action are limited to the pecuniary loss sustained by the relatives of the deceased named in the act, and must be paid over by the personal representative to such relatives. Lehmann v. Farwell, 95 Wis. 185, 70 N. W. 170, 37 L. R. A. 333, 60 Am. St. Rep. 111;Brown v. Railway Co., 102 Wis. 137, 77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579. We have been unable to perceive any good reason why these two causes of action may not be properly joined. It is true that this court has held that actions which do not affect the plaintiff in the same capacity cannot be...