Nichols v. U.S. Fidelity & Guaranty Co.

• Decision Date: 02 May 1961
• Parties: Louise NICHOLS, individually, and as Administratrix of the Estate of Jess F. Nichols, deceased, Appellant, v. UNITED STATES FIDELITY & GUARANTY Co., an insurance corp., et al., Respondents.
• Court: Wisconsin Supreme Court

Page 131

109 N.W.2d 131

13 Wis.2d 491

Louise NICHOLS, individually, and as Administratrix of the Estate of Jess F. Nichols, deceased, Appellant, v. UNITED STATES FIDELITY & GUARANTY Co., an insurance corp et al., Respondents.

Supreme Court of Wisconsin.

May 2, 1961.

The plaintiff Louise Nichols was seriously injured and her husband Jess F. Nichols died as a result of his injuries suffered as passengers in an automobile driven by their son, the defendant Paul Nichols, when it collided with an oncoming automobile driven by the defendant Bruce Richardson December 27, 1957, on Highway 16 and 60 in Dodge county, Wisconsin. The plaintiff brought this action for her personal injuries, the wrongful death of her husband and loss of society and companionship, and as administratrix of the estate of her husband, for his pain and suffering, medicals paid for the son, and pleaded a duplicate cause of action for loss of society and companionship and wrongful death.

Defendant Paul Nichols was insured by the defendant United States Fidelity & Guaranty Co. and the defendant Bruce Richardson was insured by the defendant Dairyland Mutual Insurance Company. In its answer, Dairyland pleaded the limits of its policy as $10,000 for one person and $20,000 for one accident. The U. S. F. & G. did not specifically plead the limits of its policy, but alleged its liability was limited by the terms, conditions, and provisions of its policy and the coverage afforded thereunder. The other passengers in the Nichols car and the driver brought separate actions, which were consolidated with this action and tried before a court and jury. The jury found both drivers causally negligent and determined the plaintiff's medical expenses at $19,500, damages of $98,000 for her pain and suffering and disability, $64,000 for pecuniary loss for wrongful death, $18,000 for loss of society and companionship, and $1,891.45 for medical and funeral bills of the husband. The jury also found $160.65 for medicals incurred by the deceased husband and $2,100 damages for his paid and suffering.

The amount of damages for wrongful death and loss of society and companionship was reduced to the statutory amounts and the verdict was approved by the trial court. On motions after verdict, the plaintiff moved for judgment for her medicals, pain and suffering, and disability and as administratrix, for judgment for loss of society, wrongful death, medicals of the son, and the pain and suffering of the deceased. The court denied recovery by the administratrix for the wrongful death and loss of society and companionship, and allowed these items in the judgment for the plaintiff in her individual capacity as widow.

Judgment was entered in favor of the plaintiff individually and against the individual defendants in the amount of $136,891.45 and against U. S. F. & G. for $50,000, and against Dairyland in the sum of $10,000. In the case of the two insurers, interest was allowed on that part of the judgment against them and the balance against the individual defendants. The costs were equally divided against the insurers. The judgment in favor of the administratrix of the estate of the husband was entered against Dairyland in the amount of $866.96 plus costs, and against the defendant U. S. F. &amp G. for $1,393.69 plus costs, but not against the individual defendants.

Charles Saggio, Milwaukee, for appellant.

John A. Kluwin, Milwaukee, for respondents.

HALLOWS, Justice.

This appeal was taken without a bill of exceptions and, therefore, the case is before us on the record only. Geis v. McKenna, 1960, 10 Wis.2d 16, 102 N.W.2d 101; Garcia v. Chicago & N. W. Ry., 1950, 256 Wis. 633, 42 N.W.2d 288. Thus, in considering the assigned errors, we can only determine whether or not the pleadings and the verdict sustain the judgment. Town of Madison v. City of Madison, 1955, 269 Wis. 609, 70 N.W.2d 249; Rode v. Sealtite Insulation Mfg. Corp., 1958, 3 Wis.2d 286, 88 N.W.2d 345.

In order to understand the plaintiff's position on this appeal, we were told on oral arguments, and it is apparent from the record, the amount of the judgment in favor of the plaintiff individually exceeded the combined limits of the policies for one person and if the cause of action for the wrongful death and loss of society and companionship belonged to the administratrix of the estate of the deceased husband, such damages might be a basis for a claim under policies which provided a higher monetary limitation on the insurers' liability arising from one accident. This question of coverage is not before us as the policies are not in the record. The first question then is whether, when under sec. 331.04, Stats., a widow sues individually and as administratrix of her husband's estate, stating a cause of action for wrongful death and for loss of society and companionship in each capacity, should recovery be allowed to the plaintiff as the widow or to her as the personal representative?

Plaintiff argues because a cause of action for pain and suffering of a deceased survives and belongs to the estate, the administratrix is entitled to recover for the wrongful death and the loss of society and companionship, relying on Johnson v. Larson, 1946, 249 Wis. 427, 25 N.W.2d 82, and Schilling v. Chicago, North Shore & Milwaukee Railroad Co., 1944, 245 Wis. 173, 13 N.W.2d 594. Before the amendment to sec. 331.04, Stats. 39 W.S.A. 310, allowing an action for wrongful death to be brought by the person to whom the amount recovered belongs, the personal representative was the only person who could bring such an action excepting in those instances where no survival action existed in favor of the estate. In such cases only, the action for wrongful death could be maintained by the beneficiaries. However, sec. 331.04 was amended to provide that an action for wrongful death could be commenced by either the personal representative or the beneficiary or both, but separate actions for the same death were to be consolidated in order that a single judgment would extinguish all liability for such death. The effect of this amendment was pointed out in Swanson v. State Farm Mut. Automobile Ins. Co., 1953, 264 Wis. 274, 58 N.W.2d 664. Plaintiff contends that Swanson did not change the rule of the Johnson and Schilling cases and consequently, if a survival action exists, as in this case, only the personal representative can bring the action for wrongful death. We do not agree.

The action for wrongful death does not belong to the estate of the deceased or become an asset thereof. The personal representative, in bringing a wrongful death action, acts as agent of the persons for whose benefit the action is brought and as such agent does not acquire legal title or any interest in the recovery excepting for his fees and expenses, and even as to those, the county court had no power to value the personal representative's services or declare the amount thereof a lien upon the funds recovered. Estate of Arneberg, 1924, 184 Wis. 570, 200 N.W. 557. A nonsurviving cause of action for wrongful death under sec. 331.04, Stats., is granted by statute and is vested in the beneficiaries designated therein and in accordance with the contingencies named. Arendt v. Kratz, 1951, 258 Wis. 437, 46 N.W.2d 219. Each class of beneficiaries has a new and independent right to sue for its own pecuniary loss if no prior beneficiary exists. Herro v. Steidl, 1949, 255 Wis. 65, 37 N.W.2d 874. Damage for loss of society and companionship is not a separate cause of action but is an additional element of damages recoverable in the cause of action for wrongful death. Cincoski v. Rogers, 1958, 4 Wis.2d 423, 90 N.W.2d 784; Papke v. American Automobile Ins. Co., 1946, 248 Wis. 347, 21 N.W.2d 724.

Death statutes vary in form and in purpose in the various states and three general types are recognized. Restatement, 2 Torts, p. 1279, sec. 493. The Wisconsin statute, which is the more general type, has for its purpose the compensation of the survivors for the pecuniary benefits which they would have derived from the earning power of the deceased if he had lived. In Truesdill v. Roach, 1960, 11 Wis.2d 492, 105 N.W.2d 871, we referred to the beneficiaries as owners of the cause of action even though it was not necessary for them to sue. The right to sue must be distinguished from the ownership of the recovery. Sec. 331.04(1), Stats., 39 W.S.A. 310, provides either the personal representative or the person to whom the recovery belongs may sue; sec. 331.04(2), 39 W.S.A. 310, designates to whom 'the amount recovered shall belong and be paid.' Because the cause of action belongs to the beneficiary, the contributory negligence of the beneficiary will bar or cut down the amount of his recovery, but the contributory negligence of the personal representative is no bar or does not cut down the amount of recovery belonging to a beneficiary. Munsert v. Farmers Mut. Automobile Ins. Co., 1939, 229 Wis. 581, 281 N.W. 671, 119 A.L.R. 1390; Hansberry v. Dunn, 1939, 230 Wis. 626, 284 N.W. 556; Reber v. Hanson, 1952, 260 Wis. 632, 51 N.W.2d 505. It is, of course, true that under sec. 331.03, Stats., 39 W.S.A. 291, an action for wrongful death may only be brought, regardless by whom, when the injured person would have been entitled to maintain an action for damages had he lived. Cronin v. Cronin, 1944, 244 Wis. 372, 12 N.W.2d 677.

The provisions of sec. 331.04(3), Stats., 39 W.S.A. 310, do not determine the ownership of the cause of action is in the personal representative. That section is for the benefit and the protection of the defendants and provides if separate...