Prunty v. Schwantes

• Decision Date: 29 October 1968
• Citation: 162 N.W.2d 34,40 Wis.2d 418
• Parties: Dorothy PRUNTY, Adm'x of the Estate of Renee Lynn Rawling, Decd., et al., Appellants, v. Thomas SCHWANTES et al., Respondents.
• Court: Wisconsin Supreme Court

Page 34

162 N.W.2d 34

40 Wis.2d 418

Dorothy PRUNTY, Adm'x of the Estate of Renee Lynn Rawling, Decd., et al., Appellants, v. Thomas SCHWANTES et al., Respondents.

Supreme Court of Wisconsin.

Oct. 29, 1968.

Pfannerstill, Camp & Tyson, Wauwatosa, for appellants.

Otjen, Philipp & McFadyen, Milwaukee, for respondents. Ernest J. Philipp, Milwaukee, of counsel.

HANLEY, Justice.

This appeal presents two issues: (1) Should an awared in a survival action include an amount for loss of enjoyment of life and loss of expected earnings; and (2) should the 'pecuniary loss' rule of sec. 895.04, Stats., be modified? Survival Action.

This case clearly presents the difference between a survival action and a wrongful death action. The survival action is brought by the representative of the deceased for personal injury damages suffered by the deceased prior to his death. The damages accrue to the estate of the deceased. The right to bring a survival action is based on sec. 895.01, Stats., ³ and the predecessor sections to that statute.

The wrongful death action, on the other hand, is brought by the personal representative of the deceased or by certain enumerated relatives. Even when the personal representative brings the action, the damages accrue to the relatives. These wrongful death actions are based on secs. 895.03 and 895.04, Stats. ⁴

The appellant now urges that the standards for determining damages under both the survival action and the wrongful death action be changed. In regard to the survival action, appellant is not contending that the trial court misapplied the existing law, but she contends that the law should be modified to recognize a common law liability from the wrongdoer to the decedent for damages from loss of life and loss of expected earnings. In support of this contention appellant insists that a tort-feasor who wrongfully causes the death of another is immune from civil liability.

The only immunity a wrongdoer has is from the estate of the deceased. This immunity exists only because the legislature has seen fit to permit the relatives to recover for the wrongful death rather than the estate of the deceased. This very subject was discussed in Johnson v. City of Eau Claire (1912), 149 Wis. 194, 199, 135 N.W. 481:

'* * * But no right of action which rests solely upon causing death survives, because a new right of action is given for that, and it seems manifest that the Legislature did not intend that the party in default should be twice liable for the same act. * * *'

Appellant would have this court find that the wrongful death statutes give a remedy to surviving relatives in addition to what appellant describes as the 'common law remedy.' ⁵

Appellant's contention notwithstanding, it was the common law rule in this state that personal torts do not survive the injured party.

'* * * It has become the generally, if not the universally, accepted doctrine that * * * causes of action arising from torts to real and personal property survive and pass to the personal representative as assets in his hands, while torts purely personal do not survive in the absence of statutory provision.' 1 Am.Jur.2d Abatement, Survival, and Revival, p. 87, sec. 51.

'* * * As a general rule at common law contract actions survived while tort actions died with the person. * * *' Woghan v. Stevens (1940), 236 Wis. 122, 127, 294 N.W. 503, 505, 133 A.L.R. 1033.

'It is often said that at common law contract actions survive while tort actions die with the person. * * *' P.C. Monday T. Co. v. Milwaukee Co. E. Comm. (1964), 24 Wis.2d 107, 111, 128 N.W.2d 631, 634.

It is also worthy of note that the general common law rule was followed in the early Wisconsin cases.

'It being, therefore, an action of tort, and the sole party in interest having died, the next inquiry is, whether it falls within the general rule of the common law, that such an action does not survive the death of the party in whose favor it existed. * * *' Woodward v. Chicago and Northwestern Ry. Co. (1868), 23 Wis. 400, 405.

'As it appears from the record that the plaintiff has died since the trial of the action, so much of the action as seeks a recovery for injury to the person of the plaintiff, now deceased, has abated * * *' Randall v. Northwestern Telegraph Co. (1882), 54 Wis. 140, 149--150, 11 N.W. 419.

Since causes of action for damage to the person did not survive the death of the injured party in Wisconsin until the legislature acted in 1887, ⁶ it is quite obvious that the common law of Wisconsin will not support an award of damages to the deceased's estate for loss of life or loss of expected earnings.

The appellant argues that there is no longical reason for continuing the rule that denies recovery to a deceased's estate.

We believe that there is a logical basis for denying the requested rule of damages. After a person dies, he can no longer be compensated, nor does he need the compensation. Ordinarily, damages in negligence actions are permitted to compensate the injured party and not for the purpose of punishing a wrongdoer.

'Compensation is the stated goal of courts in awarding damages for tortious injury or for breach of a contractual promise. With torts, compensation most often takes the form of putting the plaintiff in the same financial position he was in prior to the tort. * * *' 22 Am.Jur.2d, Damages, p. 28, sec. 12.

When a person has been instantaneously killed, our legislature has decided that the survivors of the deceased are the ones that have actually been damaged, and they are the ones that should be compensated. Frankly, appellant's problem in this case only arises because she is not satisfied with the compensation given to the survivors of the deceased. In most situations, and also in this case, any funds accruing to the decedent's estate will be passed on to the same persons that the legislatire has designated as beneficiaries under the wrongful death statutes. What appellant really seeks to do by her proposal here is to bypass the statutory limitation imposed by the legislature on wrongful death awards.

The bare allegation that a deceased person is uncompensated when he is killed and compensated when he is injured has grossly overstated the facts of this case. The deceased's estate is not compensated because the deceased's survivors are given the deceased's remedy. We see no fault with this result.

Modification of 'Pecuniary Loss' Rule.

Appellant also contends that the method of determining damages in a wrongful death action should be modified. Sec. 895.04(4), Stats., provides:

'Judgment for damages for pecuniary injury from wrongful death shall not exceed $35,000. * * *'

When the original statutes permitting wrongful death actions passed the Wisconsin legislature, ⁷ the words 'pecuniary injury' were also included.

This court first referred to the 'pecuniary injury' in Potter v. Chicago & Northwestern Ry. Co. (1867), 21 Wis. 372, 375:

'* * * The statute does not say, in terms, on what principle the damages are to be assessed. But all the authorities are to the effect, that vindictive damages are not to be given; nor are they to be given for loss of society, or as a solatium, or for injury to feelings; but they must be founded on pecuniary loss actual or expected, and should be calculated in reference to a reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of the life.'

Eventually the pecuniary benefit of a minor became his probable wages and the value of services rendered, less the cost of his upkeep, to the time of his majority. In exceptional cases, it was possible to show that the parents would obtain some pecuniary benefit after the child's majority.

Appellant now contends that conditions in society have changed. Children no longer bring home their pay nor are they capable of rendering much assistance at home because of the demands of school. Thus, appellant contends, the wrongful death act as it applies to minors is a nullity. There is no recovery.

Appellant would have this court adopt the decision of Wycko v. Gnodtke (1960), 361 Mich. 331, 337--338, 105 N.W.2d 118, 121, wherein the Supreme Court of Michigan overruled the pecuniary benefit theory on the ground that it was no longer applicable to this day and age:

'* * * there still exists in the law this remote and repulsive backwash of time and civilization, untouched by the onward march of society, where precedents we alone honor tell us that the value of the life of a child must be measured solely by the standards of the day when he peddled the skill of his hands and the strength of his back at the factory gates. * * *'

However, the court in Wycko did not throw out the pecuniary benefit theory as we know it in Wisconsin; they merely added in the element of 'companionship' in arriving at the value of the life. The court there felt compelled to add this element into the definition of 'pecuniary benefit' because the Michigan legislature had failed to act on the matter.

The appellant contends that a proper measure of damages when a minor is the deceased is the total investment that the parents have in the child up to the time of death. The Wycko Case obviously does not support this proposition, nor do the...