Peot v. Ferraro

• Decision Date: 06 June 1978
• Docket Number: No. 75-703,75-703
• Citation: 266 N.W.2d 586,83 Wis.2d 727
• Court: Wisconsin Supreme Court
• Parties: Donald PEOT and Helen Peot, his wife, Kenneth Peot and Merle Peot, his wife, and Robert Rass and Evelyn Rass, his wife, Plaintiffs-Appellants, v. Patricia M. FERRARO and Aetna Casualty & Surety Company, a Connecticut Corporation, Defendants-Respondents.

Page 586

266 N.W.2d 586

83 Wis.2d 727

Donald PEOT and Helen Peot, his wife, Kenneth Peot and Merle

Peot, his wife, and Robert Rass and Evelyn Rass, his wife, Plaintiffs-Appellants, v. Patricia M. FERRARO and Aetna Casualty & Surety Company, a

Connecticut Corporation, Defendants-Respondents.

No. 75-703.

Supreme Court of Wisconsin.

Submitted on Briefs March 8, 1978.

Decided June 6, 1978.

Arlo A. McKinnon, Kenan J. Kersten and Kersten & McKinnon, Milwaukee, for appellants.

Donald R. Peterson and Borgelt, Powell, Peterson & Frauen, S. C., Milwaukee, for respondents.

ABRAHAMSON, Justice.

On October 18, 1968, Kenneth Peot, Jr., his cousin Gerald Peot, and Gregory Ross were killed instantly in a highway accident in Ozaukee County. Each boy was eighteen years old and a minor under then applicable Wisconsin law. Actions for damages for wrongful death brought by the boys' parents were combined and tried to a jury in September, 1975, defendants' liability having been established in an earlier trial.

The jury's special verdict awards were as follows: to the parents of Kenneth Peot, Jr., $15,000 for loss of society and companionship and $5,000 for pecuniary loss; to the parents of Gerald Peot, $15,000 for loss of society and companionship and $1,000 for pecuniary loss; and to the parents of Gregory Ross, $15,000 for loss of society and companionship and $1,500 for pecuniary loss. Awards for funeral expenses were entered by the trial court pursuant to stipulation. The trial court reduced the awards for loss of society and companionship to the applicable $3,000 statutory limit ¹ and granted judgment on the verdict as so amended.

The parents appeal from the denial of their motions after verdict and from those parts of the judgment stating the amounts to be recovered for pecuniary loss and for loss of society and companionship. Because of the combination of defense counsel's improper final argument and error by the trial court in instructions, we reverse the judgment and remand the cause for a new trial pursuant to sec. 251.09, Stats. ²

I.

Two rules govern the recovery of damages for the pecuniary loss suffered by parents when their minor child has been wrongfully killed: the first relates to recovery for the loss of the services and contributions the child would have given his parents during his minority; the second relates to recovery for the pecuniary benefits the parents would have received from their child after the child had attained his majority.

Pre-majority pecuniary injury is measured by the value of the wrongfully killed minor child's probable wages and services to the time of his majority less the costs the parents probably would have incurred in raising the child. Prunty v. Schwantes, 40 Wis.2d 418, 426, 162 N.W.2d 34 (1968). A parent is entitled to a minor child's wages and services as a matter of right, Spang v. Schroeder, 275 Wis. 92, 98, 90 N.W.2d 768 (1957), and the fact that the parents would have allowed the child to keep his earnings rather than have demanded such earnings for themselves does not reduce the parents' pecuniary loss. Luessen v. Oshkosh Elec. Light & Power Co., 109 Wis. 94, 85 N.W. 124 (1901). As this court stated in Luessen, supra :

" . . . The probability that the father might have allowed his son to spend his time in idleness, or might have given him his time had he lived, does not militate at all against the fact of pecuniary loss. If a person is deprived of his capacity to work by the wrongful conduct of another, it was never supposed that the latter can benefit by the possibility or probability that his victim might in any event have spent his time in idleness. The surviving father here was entitled, as a matter of right, to the services of his son. As between him and the wrong-doer, the latter has deprived him of that right. It is entirely immaterial what disposition he would have made of his son's time had he lived. If one deprive a person of anything of value, the loss to the latter in a legal sense is not lessened at all by the circumstance, if it exist, that he intended never to enjoy it, or to bestow it as a gratuity upon another." 109 Wis. at 98, 85 N.W. at 126.

The parents contend that despite their objections, the defendants were repeatedly permitted to elicit testimony designed to convince the jury that the parents had suffered no pre-majority pecuniary injury because each of the boys was allowed to spend his earnings as he pleased. Because the boys' use of their earnings was irrelevant to the issue of the parents' pre-majority pecuniary loss, the parents requested the following instruction, based on the Luessen case:

"With respect to the child's wages and services during his minority, it is immaterial whether the child is allowed to keep his wages, or not required to contribute his services to his parents, during his minority. Even in such event, the parents are entitled to have the value of such wages and services included in their favor in determining whether the wages and services of the child during his minority would have a probable value exceeding the probable expenses the parents would be liable for the reasonable care, maintenance and necessities of their minor child."

The parents contend that their requested instruction was a proper expression of the law and was required to counteract the deceptive and misleading impression defense counsel had created.

While the parents' requested instruction correctly states the law, the trial court did not err in rejecting it. Error cannot be predicated upon a refusal to give a requested instruction, even though it correctly states the law, where the substance of the requested instruction is embodied in another instruction. West Bend Mut. Ins. Co. v. Christensen, 58 Wis.2d 395, 404, 206 N.W.2d 202; Sambs v. Brookfield, 66 Wis.2d 296, 304, 224 N.W.2d 582 (1975). Here, the trial court gave the jury Instruction No. 1890, which embodies the substance of the requested instruction. ³ However, because Instruction No. 1890 does not set forth the law as clearly as does the requested instruction and because defense counsel's trial strategy may have misled the jury, we believe that it would have been better practice had the trial court counteracted defense counsel's emphasis upon the boys' use of their earnings by giving the instruction requested by the parents.

II.

The parents contend that a major portion of the damages they sought to prove at trial related to the loss of the pecuniary benefit they reasonably could have expected from their children after the children reached twenty-one years of age the age of majority applicable at the time of this action. The trial court committed error, they argue, by overstating their burden of proof with respect to this item of damage in its instructions to the jury.

As we have noted, separate rules govern the recovery of pre-majority and post-majority pecuniary loss. We have held that because parents are not entitled to the services of a child except during minority, "it requires a different order of proof to justify an assessment of damages for pecuniary loss during the period subsequent to the attainment of the child's majority. . . . (T)here must be some evidence justifying an inference that the parents would have received pecuniary benefits after the attainment of the child's majority if death had not occurred." McGonegle v. Wisconsin G. & E. Co., 178 Wis. 594, 596, 190 N.W. 471, 472 (1922).

We pointed out the nature of the proof necessary to establish post-majority pecuniary loss in McGonegle v. Wisconsin G. & E. Co., supra. In McGonegle, an action for the recovery of damages for the wrongful death of plaintiffs' two and one-half year old son, we affirmed a jury verdict which assessed $1,000 for pecuniary benefits the parents might reasonably have expected from their child after he reached the age of twenty-one years. To the defendant's contention that there was no evidence upon which the jury could find that the plaintiffs could reasonably have expected any pecuniary benefit from their child after he reached majority we responded:

" . . . True, evidence of this nature cannot be very direct or conclusive, but it should be such as the circumstances of the case will permit. The age of the parents, their state of health, earning capacity and financial condition, to show the probable necessity for contributions from the child, should appear. The disposition and ability of the child to contribute should also appear, where that is possible to be shown. These facts will furnish a foundation from which the jury, in the exercise of their own judgment and discretion based on their knowledge of the ordinary affairs of life and the probabilities arising from their experience and observation, may conclude that a continuance of life would have resulted in pecuniary benefits to the parents, even after the attainment of the child's majority. From the very nature of things much must be left to the discretion and good judgment of the jury. The statute (sec. 4256, Stats.) so contemplates. It authorizes them to give such damages as 'they may deem fair and just.' To require anything like that degree of certainty upon which the ordinary verdict must rest would be to render the statute nugatory. . . . (V)erdicts in this class of cases (are not to be placed) on a plane with the ordinary verdict so far as the degree of certainty required to sustain the verdict is concerned. . . . (T)he 'reasonable certainty' required is only such as the circumstances may permit. . . . While (the jury's) conclusion must rest to a large degree in conjecture, from the very necessities of the case, such seems to be the legislative purpose, and that purpose should not be defeated by requiring a degree of proof impossible of production." 178 Wis. at 596-98, 190 N.W. at 472 (emphasis added).

In two recent cases we again noted that pecuniary injury for the wrongful death of a minor cannot be precisely established. In...