Schwartz v. City of Milwaukee, 25

• Decision Date: 28 March 1972
• Docket Number: No. 25,25
• Citation: 54 Wis.2d 286,195 N.W.2d 480
• Parties: Josephine and Joseph SCHWARTZ, Respondents, v. CITY OF MILWAUKEE, Appellant.
• Court: Wisconsin Supreme Court

Page 480

195 N.W.2d 480

54 Wis.2d 286

Josephine and Joseph SCHWARTZ, Respondents, v. CITY OF MILWAUKEE, Appellant.

No. 25.

Supreme Court of Wisconsin.

March 28, 1972.

This suit was commenced for a declaratory judgment of the rights of Joseph Schwartz arising out of an accident which occurred on April 16, 1966, when a vehicle operated by Josephine Schwartz, his wife, collided with a partially raised bridge span of the 16th street viaduct in the city of Milwaukee. Mrs. Josephine Schwartz sustained serious personal injuries and her claim for damages was the subject of a suit and was finally settled by the defendant City of Milwaukee for some $22,000. Her damages included pain and suffering and the loss of wages. Joseph Schwartz' claim for damages for loss of consortium and medical expenses was stipulated to for settlement in the sum of $8,000, but the payment thereof was made contingent upon the determination of the issue presented on this appeal. From the judgment, the city appeals.

John J. Fleming, City Atty., Herbert F. Sonnenberg, Asst. City Atty., Milwaukee, for appellant.

Michael, Best & Friedrich, Lee J. Geronime, Milwaukee, of counsel, for respondents.

HALLOWS, Chief Justice.

The issue presented to the lower court and on this appeal is whether a husband's claim for damages for loss of consortium and for medical expenses is barred by the statutory limitation of $25,000 in secs. 81.15 and 895.43(2), Stats., because his wife's claim for her damages has exhausted that amount. The trial court held the husband's claim was a separate and distinct cause of action and carried its own statutory limit of $25,000 and thus a husband could recover the stipulated $8,000 damages.

The issue of whether the statutory limit of $25,000 in secs. 81.15 and 895.43(2) covers both the damages of the wife and of the husband was before this court in Schwartz v. Milwaukee (1968), 43 Wis.2d 119, 168 N.W.2d 107, but the court refused to rule on the issue.

The question resolves itself into an interpretation of the language of sec. 81.15 ¹ which provides, 'If damages happen to any person . . ., the person sustaining such damages shall have a right to recover the same . . . The amount recoverable by any person for any damages so sustained shall in no case exceed $25,000.' This broad language applies to damages 'happening to any person.' The language in sec. 895.43(2), Stats., is comparable in that it states, 'The amount recoverable by any person for any damages . . . in any action . . . shall not exceed $25,000.' Sec. 895.43 covers some of the same ground covered by sec. 81.15, and we pointed out in Schwartz v. Milwaukee, supra, sec. 81.15 might as well be repealed by the legislature since its purported language creating a cause of action has been supplanted by Holytz v. Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618. The section exists only to provide the procedure to prosecute a claim for negligence and as a limitation upon the amount of recovery for negligence relating to the sufficiency or want of repair of a highway.

The broad language of the section is historical. As early as Hunt v. Town of Winfield in 1874, 36 Wis. 154, the statute was construed to allow consequential damages to a husband for loss of services and his medical expense for his injured spouse. However, by ch. 305, Laws of 1899, the legislature amended the predecessor section to sec. 81.15, i.e., sec. 1339, Stats.1898, to add the language, 'provided, however, that no action shall be maintained by a husband on account of injuries received by a wife, or by a parent on account of injuries received by a minor child.' The statute thus stood until 1963 when by ch. 435, Laws of 1963, this language was removed and once again the cause of action of a spouse and of a parent was recognized by sec. 81.15 with its limitation on the amount of recovery. During this period of time, no question was raised whether the limitation on the amount of recovery applied separately to each spouse's cause of action or whether one limitation applied to both.

The city contends a cause of action by a spouse for medical expenses and loss of consortium and a cause of action of a parent arising out of an injury to a child are derivative actions and in fact are a part of the original cause of action which was assigned to a spouse or a parent by operation of law and therefore are subject to all the defenses which may be asserted against the original cause of action. It is thus argued here the limitation of $25,000 in secs. 81.15 and 895.43(2) applies to all the damages to the wife and the husband which arise out of the accident which caused the primary injury to the wife. The city relies on Callies v. Reliance Laundry Co. (1925), 188 Wis. 376, 206 N.W. 198, and Stuart v. Winnie (1935), 217 Wis. 298, 258 N.W. 611, for its theory of derivative action and of the nature of the spouse's cause of action as a partial assignment of the primary cause of action.

In the Callies Case a parent of a minor sought to recover damages for medical expenses incurred for loss of services of the minor suffered because of an injury negligently inflicted upon the minor by the defendant. The minor was contributorily negligent and as this case was decided prior to the comparative negligence law and while contributory negligence at common law was a complete bar to recovery, it was important to determine whether the parent's cause of action was of such a nature as to be barred by the negligence of the infant. In holding the parent's cause of action was so barred, the court reasoned a parent by law is required to support and care for his child and in return the law gave the parent the right to a part of the child's cause of action in case he was negligently injured by another. This reasoning was also analogized to a husband's obligation to support his wife and the law likewise giving him a part of the wife's cause of action in case she was negligently injured by another. The court based this splitting of the cause of action solely on the parental or marital relationship existing between the parties and said but for such relationship and obligation, the entire damage would belong to the child or to the wife. The court reasoned that since the parent takes by operation of law a part of the child's cause of action, he must take it as the child leaves it and that it subject to any defenses which might be urged against the child 'in whom the whole cause of action, but for the law, would vest.' This result was also justified on the ground it was the legislative policy of the state and cited the result of the operation of the wrongfuldeath statute, sec. 331.03, Stats.1925. This section provides for a survival of a cause of action in the case of the death of a person caused by the wrongful act of another, but it expressly provides that a survival action can be maintained only when the party injured, if he had lived, would have been entitled to recover.

A few years later, Stuart v. Winnie, supra, was decided. This case arose after the comparative negligence statute was adopted and involved a husband suing for loss of services and medical expenses occasioned by injury to his wife inflicted by the negligent act of another. Although sec. 331.045, Stats., now sec. 895.045, ² provides any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering, the court held the negligence of the wife was applicable to reduce the damages of the husband. Although the husband was not negligent, nevertheless, on the theory his cause of action was originally part of his wife's cause of action and he obtained it by operation of law, his cause of action was subject to the same defense applicable to the wife's cause of action. This doctrine of assignment by law was followed in Haase v. Employers Mut. Liability Ins. Co. (1947), 250 Wis. 422, 27 N.W.2d 468 (a wrongful death case), which cited and followed the reasoning of the Callies Case. Also in Schwandt v. Milwaukee E. R. & T. Co. (1943), 244 Wis. 251, 12 N.W.2d 18, the comparative negligence law, on the basis of the Callies Case, was applied to a father's cause of action and his recovery was reduced 40 percent because of the negligence of his daughter. See also 41 Am.Jur.2d, Husband and Wife, p. 380, sec. 452.

However, none of these cases recognized or cited Selleck v. City of Janesville (1899) 104 Wis. 570, 80 N.W. 944, which was an action brought by a husband to recover damages arising out of personal injury suffered by his wife. In a previous suit (Selleck v. City of Janesville (1899), 100 Wis. 157, 75 N.W. 975), the wife had recovered her damages for her injuries and this judgment was pleaded as res judicata. This court held the wife's judgment was not res judicata of the cause of action for damages suffered by the husband and his 'cause of action is not one which once belonged to her and has been transferred or transmitted to him.'

Thus we find a conflict in the rationale of our prior decisions. It is quite clear that at common law a husband had a right to recover for medical expenses and loss of consortium occasioned by tortious injury to his wife. Kavanaugh and wife v....