Vande Hei v. Vande Hei

• Decision Date: 01 October 1968
• Citation: 40 Wis.2d 57,161 N.W.2d 379
• Parties: Frances VANDE HEI, Plaintiff-Respondent, v. John W. VANDE HEI, Defendant-Respondent, Farmers Mutual Ins. Co., Defendant-Appellant, David Peters et al., Defendants. William VANDE HEI, Respondent, v. Robert VANDE HEI et al., Appellants, David Peters et al., Defendants. John W. VANDE HEI, Respondent, v. David PETERS et al., Defendants, Farmers Mutual Insurance Co., Appellant.
• Court: Wisconsin Supreme Court

Page 379

161 N.W.2d 379

40 Wis.2d 57

Frances VANDE HEI, Plaintiff-Respondent, v. John W. VANDE HEI, Defendant-Respondent, Farmers Mutual Ins. Co., Defendant-Appellant, David Peters et al., Defendants.

William VANDE HEI, Respondent, v. Robert VANDE HEI et al., Appellants, David Peters et al., Defendants.

John W. VANDE HEI, Respondent, v. David PETERS et al., Defendants, Farmers Mutual Insurance Co., Appellant.

Supreme Court of Wisconsin.

Oct. 1, 1968.

Rehearing Denied Nov. 26, 1968.

Everson, Whitney, O'Melia, Everson & Brehm, Green Bay, for appellants.

Kaftan, Kaftan & Kaftan, Green Bay, for plaintiffs, respondents.

Morris, Vanden Heuvel & Hanaway, West De Pere, for John Vande Hei.

CONNOR T. HANSEN, Justice.

Five separate actions were commenced. They were consolidated for trial and trial was had to a jury.

We consider three actions involved in this appeal:

1. A wrongful death action by Frances Vande Hei naming as defendants, John Vande Hei, his insurer Farmers Mutual Insurance Company, and David Peters and his insurer Maryland Casualty Company.

2. A wrongful death action by John Vande Hei against David Peters and Maryland Casualty Company, and a cross-complaint in the Frances Vande Hei action in which John sought contribution from David Peters and his insurer in the event of joint liability.

3. An action for personal injuries by William Vande Hei in which Robert Vande Hei and Farmers Mutual Insurance Company and David Peters and Maryland Casualty Company were named as defendants.

Appellants Farmers Mutual Insurance Company perfected an appeal in the Frances Vande Hei action and the William Vande Hei action, but not in the John Vande Hei action, although the appropriate filing fee was paid after oral argument.

No party has challenged the jurisdiction of this court to hear all three appeals, and all parties have fully argued all questions raised.

In Asen v. Jos. Schlitz Brewing Co. (1960), 11 Wis.2d 594, 106 N.W.2d 269, we construed sec. 274.11(4), Stats., to authorize this court to review an appealable order or portions thereof as to which no notice of appeal has been served, if the parties appear before us and argue the merits without noting any objection to our jurisdiction.

Furthermore, respondents' counsel by participating in the appeal and not moving to dismiss the appeal has waived any defective service of the notice of appeal. See sec. 269.51, Stats., United States v. Klebe Tool & Die Co. (1958), 5 Wis.2d 392, 92 N.W.2d 868; Barnard v. Coates (1965), 28 Wis.2d 1, 135 N.W.2d 809; Richie v. Badger State Mut. Casualty Co. (1963), 22 Wis.2d 133, 125 N.W.2d 381.

It is therefore determined that all three cases are before us on this appeal.

The issues presented on this appeal are complicated and perhaps can be summarized by stating that they relate to two general areas. The first is concerned with the theory of the litigation, pleading, the verdict, and the disposition of motions after verdict. The second is the matter of determination and assessment of damages.

I.

At the time of the verdict John Vande Hei was not a party plaintiff in any action agaisnt Farmers Mutual.

After verdict several motions were made. The pleadings in one of the motions bear the caption of the Frances Vande Hei action and the John Vande Hei action. Both plaintiffs joined in the motion. The moving papers appear to have been drafted by counsel for plaintiff, Frances Vande Hei, and move the court as follows:

'Plaintiff John Vande Hei moves that the complaint be amended to state a cause of action against the defendant Farmers Mutual Insurance Company similar to that stated in the cause of action of Frances Vande Hei.' (Emphasis added.)

The pleadings in another of the motions after verdict bear the caption of the Frances Vande Hei action, the John Vande Hei action, and an action in which Robert Vande Hei and John Vande Hei are named as plaintiffs and David Peters and Maryland Casualty Company are named as defendants. Frances Vande Hei and John Vande Hei also joined in this motion. These motion papers appear to have been drafted by counsel for John Vande Hei and move the court as follows:

'1. * * *

2. Moves the court that the complaint of plaintiff, John Vande Hei, be amended to include in the cause of action against the defendant, Farmers, Mutual Insurance Co., for wrongful death of Jeanne Vande Hei, a claim for recovery of funeral expenses incurred; and further moves the court for judgment on the verdict as rendered pertaining to such funeral expenses, and loss of society and companionship and pecuniary loss.'

Counsel for Farmers Mutual Insurance Company opposed the granting of the foregoing motions. However, the trial court granted the motion to amend and entered the following order:

'That as to the motions of John Vande Hei, that his motion to amend his complaint * * * is granted.' (Emphasis added.)

Counsel for plaintiff, Frances Vande Hei, contend that the motion as granted was one to amend the complaint of Frances Vande Hei to include her husband John as a party plaintiff in her wrongful death action. The specific language of the trial judge in granting the motion leads us to conclude that the order amended John's complaint and not that of Frances.

Subsequent to the granting of this motion and consideration of other motions, the court entered judgment for plaintiff, Frances Vande Hei and defendant, John Vande Hei, to recover of the defendant Farmers Mutual for the wrongful death of Jeanne. In view of the fact that the trial court permitted plaintiff John Vande Hei to amend his complaint to state a cause of action against Farmers Mutual, we modify the judgment. Judgment should have been entered for plaintiff, Frances Vande Hei and plaintiff, John Vande Hei.

Appellant Farmers Mutual contends that the allowance of these amendments was prejudicial error which amounted to permitting John Vande Hei to take judgment against his own insurer, a nonparty to the suit brought by John Vande Hei, on the basis of claims which John Vande Hei never made against Farmers Mutual. In essence appellant claims that since plaintiff John Vande Hei's original complaint was not directed at Farmers Mutual, counsel for appellant was 'surprised' by the amendment after verdict allowing Vande Hei to state a cause of action for wrongful death against Farmers Mutual because no opportunity was afforded them to meet such claims.

We determine that the trial court did not abuse its discretion in granting the after verdict amendment to John's complaint.

It is clear that a trial judge has much discretion in granting amendments to pleadings. Sec. 269.44, Stats., states:

'The court may, at any stage of any action or special proceeding before or after judgment, in furtherance of justice and upon such terms as may be just, amend any process, pleading or proceeding * * * provided, the amended pleading states a cause of action arising out of the contract, transaction or occurrence or is connected with the subject of the action upon which the original pleading is based.'

There can be no question that John's after verdict amendment states a cause of action arising out of the transaction or occurrence upon which the original pleading is based. All the actions consolidated at the trial arose out of one accident.

In Wipfli v. Martin (1967), 34 Wis.2d 169, 148 N.W.2d 674, we considered the matter of the discretion of the trial court in granting amendments to pleadings. We concluded at 174, 148 N.W.2d at 677:

'* * * sec. 269.44, Stats., should be liberally construed to permit the amendment of the pleadings so as to present the entire controversy providing the amendment does not unfairly deprive the opposing party of timely opportunity to meet the issue created by the amendment.'

It appears that Farmers Mutual was not surprised and would not be prejudiced by the amendment. We decided in Truesdill v. Roach (1960), 11 Wis.2d 492, 105 N.W.2d 871, that a wrongful death action, such as this, where a husband and wife are beneficiaries, is a single cause of action and that a husband and wife are united in interest as to be necessary parties. In Truesdill, at 498, 105 N.W.2d at 872, we further stated that an action for wrongful death cannot be commenced by a person to whom only part of the recovery belongs. ¹ Since Truesdill holds that a husband and wife are necessary parties in an action for wrongful death of their child, the appellant could hardly be surprised by John's after verdict amendment. At no time prior to motions after verdict did appellant object to a misjoinder of party plaintiffs.

In addition, the separate elements of damages to John in this single cause of action for wrongful death were introduced at the trial. During the trial witnesses testified not only as to the pecuniary losses and losses of society and companionship to Frances, but also as to the losses suffered by John. John also testified as to the amount of funeral expenses incurred due to the death of Jeanne. In short, all the elements of damages of both John and Frances were fully tried, and Farmers Mutual fully participated.

Furthermore, appellant never objected to the verdict question which asked 'What sum of money will reasonably compensate the plaintiffs, John Vande Hei and Frances Vande Hei, * * * for their' loss of society and companionship and for their pecuniary loss. (Emphasis added.) Clearly the jury was asked to find the damages of both John and Frances. Such lack of objection to the verdict question and subsequent jury instructions reflects that Farmers Mutual was well aware that recovery by John Vande Hei was also sought for the wrongful death of Jeanne.

The granting of the after verdict amendments did not unfairly deprive Farmers Mutual of timely opportunity to meet the issues created by the amendments. Such issues were part of a single cause of action which had already been introduced during the course of the trial at which time counsel for appellant was a full...