Papke v. Am. Auto. Ins. Co. of St. Louis, Mo.
| Decision Date | 15 February 1946 |
| Citation | 248 Wis. 347,21 N.W.2d 724 |
| Parties | PAPKE v. AMERICAN AUTOMOBILE INS. CO. OF ST. LOUIS, MO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a portion of a judgment of the Circuit Court for Milwaukee County; Charles L. Aarons, Judge.
Affirmed.
This action was commenced by Peter V. Deuster on the 27th day of October, 1943, against American Automobile Insurance Company of St. Louis, Missouri, a foreign corporation, defendant-respondent, to recover damages for (a) injuries to his person and (b) for the loss of society and companionship of his only child, Violet. Plaintiff appealed from that part of the judgment which strikes and disallows finding of damages in the sum of $2,500 for the loss of society and companionship of his daughter. Peter V. Deuster died after the trial in circuit court had been completed and appeal taken to this court. The action was revived in the name of Ottilia Papke, Special Administratrix of the Estate of Peter V. Deuster, deceased. For the purposes of this opinion we will refer to Peter V. Deuster as plaintiff and appellant. The facts will be stated in the opinion.
Rubin, Zabel & Ruppa, of Milwaukee (William B. Rubin, of Milwaukee, of counsel), for appellant.
Shaw, Muskat & Paulsen, of Milwaukee, for respondent.
Plaintiff Deuster, a widower, and his only child, Violet, were guests in an automobile of one Carl Wegner who, through his negligence, caused the plaintiff and his daughter to be injured. The daughter lived for about one and one-half hours after the accident, suffering conscious pain from the time of the accident until her death. Plaintiff brings this action to recover (a) damages resulting from his own bodily injuries and (b) as the father of Violet Deuster, deceased, for the loss of society and companionship of his only child, Violet Deuster. No appeal is taken from that portion of the judgment awarding damages to the plaintiff resulting from his own bodily injuries, but in the special verdict the jury found plaintiff's damages $2,500 by reason of the loss of the society and companionship of his daughter, Violet. This was stricken and disallowed by the trial court. Plaintiff appeals from that portion of the judgment disallowing the damages in question.
The question therefore presented is whether the plaintiff can maintain an action as the father of his deceased daughter to recover damages for the loss of society and companionship of such deceased daughter where a cause of action exists in favor of the estate of the deceased. It was stipulated that Violet Deuster lived for about an hour and a half after the accident and endured conscious pain and suffering prior to her death. No administrator of her estate was appointed, and no personal representative of such deceased person is a party to this action.
Plaintiff contends that subsec. (2) of sec. 331.04, Stats., gives a separate cause of action to the surviving parent to recover the damages claimed, and that this subsection must be considered as an independent section not controlled by the language in subsec. (1) of sec. 331.04, Stats.
Sec. 331.04, Stats., was amended by ch. 263, Laws of 1931 by adding subsec. (2) and otherwise amending this section not herein material. The addition of subsec. (2) reads as follows:
‘In addition to the benefits provided for in subsection (1), a sum not exceeding twenty-five hundred dollars for loss of society and companionship shall accrue to the parent or parents or husband or wife of the deceased.’
Sec. 331.03, Stats., provides for recovery for death by wrongful act, and Sec. 331.04, Stats., designates who shall bring the action. Subsec. (1) thereof provides:
‘Every such action shall be brought by and in the name of the personal representative of such deceased person. * * *’ and provides to whom the amount recovered shall belong. Provision is then made for bringing the action in the name of the person or persons to whom the amount recovered shall belong, in the following language:
‘* * *...
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...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......
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...Since the Moorman and Papke Cases (Moorman Mfg. Co. v. Industrial Comm., 1942, 241 Wis. 200, 5 N.W.2d 743; Papke v. American Automobile Ins. Co., 1946, 248 Wis. 347, 21 N.W.2d 724) were decided, this court has several times made use of such material to substantiate a construction of the lan......
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