Van Gilder v. Gugel

• Decision Date: 03 March 1936
• Parties: VAN GILDER v. GUGEL ET AL.
• Court: Wisconsin Supreme Court

220 Wis. 612

265 N.W. 706

VAN GILDER

v.GUGEL ET AL.

Supreme Court of Wisconsin.

March 3, 1936.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Judge.

Affirmed.

Action brought by Corabelle Van Gilder, as the widow of John L. Van Gilder, against the defendants, Frank Meicher, William Gugel, Louis Gugel, the South Park Street Garage, a corporation, and the Casualty Reciprocal Exchange. The action is to recover damages sustained by the plaintiff because of the death of her husband while riding in an automobile which was owned by the South Park Street Garage, and which plaintiff alleged was negligently operated by Meicher in such a manner as to cause Van Gilder's death. The defendant Casualty Reciprocal Exchange was joined as the insurer under an automobile liability insurance policy covering the automobile. The defendants Gugel were charged with causal negligence as the owners of a wagon negligently driven upon the highway after dark without any light or reflector signal. Each of the individual defendants filed answers denying any causal negligence on his part; and Meicher and the South Park Street Garage, and its insurer, by cross-complaint, also sought judgment for contribution from the defendants Gugel. Upon a trial the jury returned a special verdict finding causal negligence on the part of Meicher and Gugels' employee, and assessing plaintiff's damages at $7,500. Judgment was entered for the recovery of that amount and costs by the plaintiff from the defendants. However, because of a covenant not to sue the defendants Meicher, South Park Street Garage and its insurer, which was executed by the plaintiff, in consideration of their paying her $3,500 paid during the course of the trial, with the knowledge of the court, as well as the Gugels, that judgment was immediately satisfied of record to the extent of that $3,500 payment, so that but $4,000 and costs remained owing thereon. The Gugels appealed from that judgment.Gilbert, Ela, Heilman & Raeder, G. Burgess Ela, and Oscar Christianson, all of Madison, for appellants.

Hill, Beckwith & Harrington, of Madison, for respondent.

Schubring, Ryan, Petersen & Sutherland, of Madison, for defendants.

FRITZ, Justice.

The defendants William and Louis Gugel appeal from a judgment holding them and their codefendants liable to the plaintiff, Corabelle Van Gilder, for damages for the pecuniary loss and loss of society and companionship sustained by her by reason of the death of her husband, John L. Van Gilder, as the result of negligence chargeable to the defendants. Van Gilder was killed while riding in an automobile which overturnedwhile it was being operated by the defendant Meicher shortly after dark on November 12, 1934. Meicher was driving eastward on the south half of a tar surfaced highway at a speed of 35 to 50 miles per hour, and with the headlights adjusted so that he could see but 40 to 50 feet ahead. Suddenly he discovered that he was approaching a wagon, which was about 25 feet ahead of his car and also moving eastward on the south half of the highway. To avoid colliding with the wagon, Meicher turned abruptly to the north, and then he discovered that a west-bound automobile was approaching 100 or 150 feet to the east, on the north half of the highway; and, at the same time, his automobile ran on to loose gravel north of the tarred surface and started skidding. He tried to straighten it out, but could not get it to come back. It skidded along until it rolled over on the north shoulder and came to a stop against the approaching westbound automobile. The wagon, on which there was an empty hayrack, belonged to the appellants, and was being driven by their employee, Albert Schroeder. It had no reflector signal at the rear. Schroeder testified that there was a lighted lantern, but other witnesses testified to the contrary.

The jury found that negligence on the part of Meicher in respect to lookout, speed, control, and passing the wagon on his left side of the road, which was not free from oncoming traffic, constituted proximate causes of the accident; that Schroeder was negligent in driving a wagon on the highway unequipped with a light or reflector signal, and that such negligence was also a proximate cause of the accident; that Van Gilder was not negligent as to keeping a lookout, and did not assume the risk of danger by riding with Meicher; that the proportions of the causal negligence were 87 1/2 per cent. on the part of Meicher and 12 1/2 per cent. on the part of Schroeder; and that plaintiff's damages were $5,000 “for pecuniary loss, including burial expenses,” and $2,500 for loss of society and companionship. On that verdict the court entered judgment for the recovery of the assessed damages from the defendants. The defendants Gugel appealed.

[1] The appellants' first contention is that no cause of action existed in favor of the plaintiff, Corabelle Van Gilder, as an individual under the provisions of sections 331.03 and 331.04, Stats., for the death of her husband, and that the only cause of action, if any, was in favor of the personal representative of the estate. In that connection appellants claim that plaintiff is not entitled to maintain this action because there was a cause of action in favor of her husband's estate for his funeral expenses. He apparently died without sustaining any pain and suffering. There are no allegations as to pain and suffering in the complaint, and no damages were claimed or assessed on that ground. Likewise there is no reference in the complaint or the prayer thereof in respect to funeral expenses. None of the defendants alleged any facts, or asserted as defense in their answers that the plaintiff was not entitled to maintain the action because of any provision in sections 331.03 and 331.04, Stats. On the trial plaintiff produced and introduced in evidence, without objection, the funeral bill for $385, showing there was a credit of $150, which she testified had been paid; and she also testified that the cemetery lot cost $110, of which one-third was apportionable for her husband's grave. No other proof on that subject was offered. The jury assessed her damages “as to pecuniary loss, including burial expenses,” at $5,000. No question as to plaintiff's right to maintain this action was raised by the appellants until on their motions after verdict. The court, in overruling those motions, said: “On the question of plaintiff's right to bring the action, the court is of the opinion that the action is properly brought; and further that the defendant has waived any right he may have had to object as to proper parties, by waiting until after verdict to raise the question; especially as it cannot be said it would have made any difference in the results to the objecting defendants, and therefore they are not affected prejudicially.”

In considering whether the widow was entitled to maintain this action, it is of controlling significance that, because Van Gilder sustained no conscious pain and suffering, there was no cause of action, and no claim made on that ground in favor of his estate or otherwise; and that there was no proof that his funeral or burial expenses were paid by, or in fact charged to, his estate. On the contrary, the evidence admits of the inference that the plaintiff had assumed the obligations therefor and paid them in part. If she voluntarily incurred that liability personally, she should be entitled to reimbursement therefor, although she would otherwise have been under no legal obligation to incur such liability. That appellants' counsel apparently acquiesced during the trial in the propriety of those inferences and conclusions under the evidence is indicated by the fact that they failed to objectto the court's submittal to the jury of a question which expressly included the item of funeral expenses as one of the elements to be included in assessing plaintiff's pecuniary loss.

As there was no cause of action in favor of Van Gilder's estate for pain and suffering or for obligations incurred by the estate for funeral expenses, the plaintiff, as his widow, was entitled to bring this action under the provisions in section 331.04, Stats., that: “(1) Every such action shall be brought by and in the name of the personal representative of such deceased person, and the amount recovered shall belong and be paid over to the husband or widow of such deceased person; * * * provided, that if there be no cause of action in favor of the estate of such decedent and the person or persons to whom the whole amount sued for and recovered belongs, as above provided, shall be the husband, widow, or parent or parents, lineal descendant or ancestors, brothers or sisters of the deceased, suit may at his or her or their option be brought directly in his or her or their name or names instead of being brought in the name of the personal representative of such deceased person.”

In Secard v. Rhinelander Lighting Company, 147 Wis. 614, 622, 133 N.W. 45, 47, which was an action brought by an administrator to recover damages for the benefit of a father for the death of his minor child, the court said: “Complaint is made because the funeral expenses were allowed to be considered in determining the damages. No error was committed in that regard. It plainly constituted pecuniary loss of the father, for whose benefit the action was brought.”

In Herning v. Holt Lumber Company, 153 Wis. 101, 107, 108, 140 N.W. 1102, 1105, the court said, in respect to that statement: “In Secard v. Rhinelander L. Co., 147 Wis. 614, 133 N.W. 45, it was held that such outlay was recoverable by a father under the death statute. It may in such case be recovered under either cause of action; but, when the suit is brought for death and for the benefit of such relatives as have no duty of interment cast upon them by law, this item of damages should not be included in an award under the death statute.”

Subsequently, the right of...