Truesdill v. Roach

• Decision Date: 01 November 1960
• Citation: 105 N.W.2d 871,11 Wis.2d 492
• Parties: Ralph TRUESDILL, Plaintiff-Respondent, v. John E. ROACH and Hartford Accident & Indemnity Company, a foreign corporation, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 871

105 N.W.2d 871

11 Wis.2d 492

Ralph TRUESDILL, Plaintiff-Respondent, v. John E. ROACH and Hartford Accident & Indemnity Company, a foreign corporation, Defendants-Appellants.

Supreme Court of Wisconsin.

Nov. 1, 1960.

Geffs, Geffs, Block & Geffs, Janesville, for appellants.

Berg & Berg, Janesville, for respondent.

HALLOWS, Justice.

The first issue is whether the mother is a necessary party plaintiff with the father in bringing an action for the wrongful death of their son. Sec. 331.04(1), Stats., provides that an action for wrongful death may be brought either by the personal representative of the deceased person or by the person to whom the amount recovered belongs. Under the facts of this case the parents of the deceased are beneficiaries of the recovery for the wrongful death and also for additional damages for loss of society and companionship. Secs. 331.04(2) and (4).

Sec. 260.12, Stats., provides that parties to an action who are united in interest must be joined as plaintiffs or defendants, but if the consent of anyone who should be joined as a plaintiff cannot be obtained, he may be made a defendant and the reasons therefor stated in the complaint. The plaintiff argues that the parents are proper parties but are not united in interest so as to be necessary parties. In support of his argument, the plaintiff relies on several cases from other jurisdictions which are not determinative of the question under our statutes. In Pierce v. Conners, 1894, 20 Colo. 178, 37 P. 721, the statute provided that a wrongful death action could be brought 'by the father and mother who may join in the suit and each shall have an equal interest in the judgment.' Laws Colo.1877, p. 343. The court said the joining by the mother in the action by the father was permissive and not imperative. In Norko v. Rau, 1931, 107 N.J.L. 479, 154 A. 766, the father was allowed to sue alone for the death of his child under the Pennsylvania wrongful-death statute, 12 P.S. § 1602. The question was not raised in the pleadings, but by objection to testimony. Under the prior constructions of the statute the father or the mother could sue alone under some circumstances, and the court assumed that the one parent was suing on behalf of both. Leave was granted, however, that if the assumption was wrong, the mother could apply to be made a party. The court also concluded that unless a suit was allowed to be brought by one parent he would be deprived of his statutory right by the refusal or indifference of the other parent. Such reasoning is not applicable here because of sec. 260.12, allowing a necessary plaintiff who refuses to join the action to be made a defendant.

The plaintiff also relies on several Wisconsin wrongful-death cases which either involved the reduction of the amount of recovery because of the contributory negligence of one of the plaintiffs or barred recovery on other grounds. In Munsert v. Farmers Mut. Automobile Ins. Co., 1939, 229 Wis. 581, 281 N.W. 671, 119 A.L.R. 1390, both parents sued but the father was denied recovery for damages resulting from the death of his minor son caused by the wrongful act of the deceased's minor brother, and the mother's allowance was restricted to one-half of the amount awarded by the jury. The action was against the father's insurance company directly and the decision rests on a clause in his automobile liability policy which excluded recovery by him because he was the named insured. Hansberry v. Dunn, 1939, 230 Wis. 626, 284 N.W. 556, likewise does not support the plaintiff's contention. Both parents sued but the jury assessed 45 per cent of the negligence to the mother who was the driver of one of the cars which collided, killing the infant. The court allowed the father to recover one-half of the damages awarded, but reduced the mother's share 45 per cent. In Reber v. Hanson, 1952, 260 Wis. 632, 51 N.W.2d 505, both parents sued for the wrongful death of their infant son and recovery was defeated because of their contributory negligence.

The diminishing or defeat of the amount of recovery because of contributory negligence of a beneficiary under the wrongful-death statute is provided for in sec. 331.045, Stats. It does not logically follow that because the recovery by one of a class of beneficiaries designated in the wrongful-death statute is diminished or defeated, that each member of the class has a separate and distinct cause of action or their interests are not united. A cause of action may be vested in several persons and their recovery on the cause of action may vary according to the particular damage to the individual members of the class. Neither is it necessary under the wrongful-death statute for the beneficiaries or the owners of the cause of action to bring the action. Such a cause of action may be enforced by the personal representative of the deceased and the same rule of diminishing the amount of recovery because of contributory negligence would apply.

The language in Fiel v. City of Racine, 1930, 203 Wis. 149, 233 N.W. 611, in some respects supports the plaintiff's contention but must be read in connection with the facts. The mother sued alone for the wrongful death of her minor son. She had divorced the boy's father and remarried, and the boy's father whose whereabouts were unknown, had abandoned the son. In disposing of the objection that the father was a necessary party, this court stated that under the circumstances the father was not entitled to share in the recovery because under the statutes the mother had a right to the earnings of the minor when the father abandoned the child. The court then cited 8 Ruling Case Law, p. 770, sec. 54, to the effect that either parent may sue alone. The full statement of the rule is:

'In some jurisdictions it is expressly provided that all parties interested may join as parties plaintiff in a suit for wrongful death, and such joinder is required in some cases.'

The same statement of the rule is found in 16 Am.Jur., Death, p. 190, sec. 273. At the time the plea in abatement was interposed the father-plaintiff was not the only person to whom the amount recovered belonged under the wrongful-death statute. This is recognized by the plaintiff who later obtained an assignment of her interest from the mother.

It has been held many times that the wrongful-death statute creates a new cause of action, not for the injury to the decedent, but for the loss sustained to the beneficiaries because of the death, and such cause of action is distinct from any cause of action that the deceased might have had if he had survived. Brown v. Chicago & Northwestern R. Co., 1899, 102 Wis. 137, 77 N.W. 748, 78 N.W. 771, 44 L.R.A. 579; McMillan v. Spider Lake Saw Mill & Lumber Co., 1902, 115 Wis. 332, 91 N.W. 979, 60 L.R.A. 589; Robertson v. Chicago, St. P., M & O. R. Co., 1904, 122 Wis. 66, 99 N.W. 433, 66 L.R.A. 919. This view is based on the better reasoning of the nature of the wrongful death statutes and is supported by courts generally and by the recent trend of authorities. 16 Am.Jur.,...