Shockley v. Prier

• Decision Date: 04 February 1975
• Docket Number: No. 310,310
• Citation: 225 N.W.2d 495,66 Wis.2d 394
• Court: Wisconsin Supreme Court
• Parties: Paul SHOCKLEY, a minor, by his guardian ad Litem, Robert L. Habush, Plaintiff, Benjamin Shockley and Marion Shockley, Appellants, v. Thomas A. PRIER, M.D., et al., Defendants-Respondents.

Page 495

225 N.W.2d 495

66 Wis.2d 394

Paul SHOCKLEY, a minor, by his guardian ad Litem, Robert L Habush, Plaintiff Benjamin Shockley and Marion Shockley, Appellants, v. Thomas A. PRIER, M.D., et al., Defendants-Respondents.

No. 310.

Supreme Court of Wisconsin.

Feb. 4, 1975.

Habush, Gillick, Habush, Davis & Murphy, Milwaukee, for appellants; Howard A. Davis, Milwaukee, of counsel.

Irving W. Zirbel, Milwaukee, for defendants-respondents.

DAY, Justice.

The question raised on this appeal is, should a parent be permitted to recover damages for loss of the aid, comfort, society and companionship of a minor child who has been injured by the negligent acts of another?

This is an appeal by Benjamin Shockley and Marion Shockley, his wife (Shockleys), the parents of Paul Shockley, a minor, from an order of the trial court entered on May 30, 1973, sustaining the demurrer of the defendants Thomas A. Prier, M.D., Arthur W. Tacke, M.D., and The Medical Protective Company, their insurer, to that part of the complaint of the Shockleys alleging as a cause of action the loss of their minor son's aid, comfort, society and companionship as a result of injuries sustained by their son due to the negligence of Drs. Prier and Tacke and Milwaukee St. Joseph Hospital of Franciscan Sisters.

The complaint of Paul Shockley and his parents alleges that on July 23, 1971, Mrs. Shockley gave birth prematurely to twins at Milwaukee St. Joseph Hospital of Franciscan Sisters. Only Paul survived and was placed in a premature infant-care unit. The complaint alleges that due to the negligence of the defendants Paul was given excessive amounts of oxygen which caused retrolental fibroplasia, resulting in total and permanent blindness and disfigurement. The complaint sets forth a cause of action for damages sustained by the infant Paul. That portion of the complaint is not involved in this appeal. The complaint also sets forth as a cause of action by Paul's father that 'he was deprived of his minor son's aid, comfort, society and companionship, and will in the future continue to be deprived of the same, to which he is entitled . . .' A similar cause of action is set forth for Paul's mother.

It is that part of the complaint alleging damages for loss of aid, comfort, society and companionship to which Drs. Prier and Tacke and their insurer The Medical Protective Company demur on the ground the facts alleged do not state a cause of action.

The hospital and its insurer answered the complaint but did not demur and are not included in this appeal.

It is from the order sustaining the demurrer and dismissing those causes of action that plaintiffs Benjamin Shockley and Marion Shockley appeal.

Counsel for the plaintiffs stated at the time of oral argument that the complaint prayed for damages only for loss of Paul's aid, comfort, society and companionship during his minority. In his argument, counsel emphasized that it is only for the period of minority that the plaintiffs are seeking damages in this action. We therefore confine this opinion to the question of whether such damages are allowable to a parent during the minority of an injured child.

At the present time, by statute, a parent can recover for loss of society and companionship of a child in the case of wrongful death but only if there is no surviving spouse or unemancipated or dependent children of the deceased. ¹

There is no statute defining what damages may be recovered by a parent for injuries to a child. The law in that area is common law and was enunciated 50 years ago in the case of Callies v. Reliance Laundry Co. (1925), 188 Wis. 376, 380, 206 N.W. 198, 200. In that case, this court said:

'But when a minor child is injured by the negligence of another . . . the parent can recover (1) for loss of the minor's earning capacity during minority and (2) for reasonable medical and nursing expenses during minority.'

The plaintiffs argue that the common law is a developing body of law which changes with the changing times and that the rule limiting recovery to the monetary loss sustained by a parent for an injured child harks back to the days when children were regarded as economic assets and no longer applies.

The defendants-respondents argue that if such a change is to be made, it should be made by the legislature and not by the court. This is an area where either this court or the legislature may act.

The rule against such recovery was created by the courts and not by the legislature and it is as much our responsibility, as the legislature's, to make changes in the law, if the common-law rule no longer fits the social realities of the present day. This court in recent years has made changes in the common law affecting personal injury actions as a result of changing concepts as to the relationship of members of the family to each other. Historically, the common law did not recognize the cause of action of a wife for loss of the consortium of her husband when caused by the negligent acts of a third party. The common law did recognize that a husband had a cause of action for the loss of consortium of his wife. This court in Moran v. Quality Aluminum Casting Co. (1967), 34 Wis.2d 542, 551, 552, 150 N.W.2d 137, declared for the first time that a woman could maintain an action for loss of her husband's consortium.

In Moran this court stated, p. 547, 150 N.W.2d p. 138:

'As explained in Montgomery v. Stephan . . . ((1960), 359 Mich. 33, 40, 101 N.W.2d 227) a recent decision by the Michigan supreme court:

'This, then, is the soil in which the doctrine took root; the abject subservience of wife to husband, her legal nonexistence, her degraded position as a combination vessel, chattel and household drudge whose obedience might be enforced by personal chastisement.'

Obviously the historical milieu in which the doctrine originated has changed completely. Nevertheless, despite obvious changes in the social, economic and legal status of women, the common law doctrine allowing the husband a right of action for loss of consortium, but denying the wife a reciprocal action, was uniformly adhered to by the courts until 1950.'

Our court then went on to say, pp. 551, 552, 150 N.W.2d p. 141:

'The genius of the common law is its ability to adapt itself to the changing needs of society. Because the bases on which the old common law rule which denied to the wife the right of recovery for loss of her husband's consortium rest on historical concepts which long ago disappeared, we deem the rule of Nickel v. Hardware Mut. Casualty Co. (269 Wis. 647, 70 N.W.2d 205) should be overruled . . ..'

In 1963 this court abrogated the parentalimmunity rule in negligence cases (except in two limited situations) and thereby changed what had been the common-law rule until then that a child could not sue a parent for damages resulting from the negligent acts of the parent. This court in Goller v. White (1963), 20 Wis.2d 402, 412, 413, 122 N.W.2d 193, 198, stated:

'This court seriously considered the advisability of abrogating the parental-immunity rule in negligence actions when Schwenkhoff v. Farmers Mut. Automobile Ins. Co., . . . ((1960), 11 Wis.2d 97, 104 N.W.2d 154) was before us. We then concluded that the legislature's recent action in rejecting legislation that would have abolished the immunity foreclosed this court from so doing. In so concluding we adhered to the long-established judicial policy of not overruling our past decisions where the legislature had acted in the matter. This included the situation where the legislature had defeated a bill that had proposed changes in a rule of law laid down by court decision. Subsequently, this policy was completely overturned in Holytz v. Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618. We there held that it was our responsibility to change a court-made rule of law when we deemed the change necessary in the interests of justice even though the legislature had refused to make the change. Thus the reason advanced in the Schwenkhoff Case for not changing the parental-immunity rule no longer applies.'

In the majority of family situations, children are no longer an economic asset but on the contrary are usually sources of great expenditure on the part of parents. Wisconsin's lowering of the age of majority from 21 to 18 years has made the possibility of a parent acquiring the earnings of a minor child even more remote.

In an article in the Washington Law Review, Vol. 43, p. 654 (1967), entitled 'Wrongful Death of a Minor Child: The Changing Parental Injury,' the author points out, pp. 655, 656, 668:

'Honest application of a pecuniary standard does not, in today's world, allow adequate recovery for child-death. The cost-accounting technique for measuring damages--value of services less cost of support--is archaic in a society which is not structured on child labor and the family chore framework of an agricultural community. . . .

Tort law seeks to compensate injuries as those injuries are understood in light of changing social and economic conditions. . . .

. . . both court and legislature have recognized that today the injury sustained by a parent on the death of his child is not primarily economic. The law recognizes in interest in emotional and mental well-being. If this is the primary interest invaded when a parent loses his minor child, tort law should look to that injury, and fashion an appropriate remedy.'

What is said with respect to parental loss in the event of death of a child is equally true in the case of injury. Our wrongful death statute already recognizes the loss of society and companionship as an element of damages in the case of death. It seems reasonable to recognize this same type loss where there has been injury to a minor child.

In Family Law Quarterly, Vol. 7 (1973) 211, published by the American Bar Association, Professor Sanford N. Katz and Messrs. William A. Schroeder and Lawrence R. Sidman, in an article entitled 'Emancipating Our...