Wasicek v. M. Carpenter Baking Co.

• Decision Date: 09 January 1923
• Citation: 191 N.W. 503,179 Wis. 274
• Parties: WASICEK v. M. CARPENTER BAKING CO.
• Court: Wisconsin Supreme Court

179 Wis. 274

191 N.W. 503

WASICEK

v.M. CARPENTER BAKING CO.

Supreme Court of Wisconsin.

Jan. 9, 1923.

Appeal from Circuit Court, Milwaukee County; Walter Schinz, Judge.

Action by Clara Wasicek, administratrix, against the M. Carpenter Baking Company. Judgment for plaintiff, and defendant appeals. Modified and affirmed.

Action by administratrix, widow of Wenzel Wasicek, deceased, who was a fireman of the city of Milwaukee, at the time of his death 35 years of age. He left the plaintiff, his widow, 32 years of age, and four children, aged 10, 7, 6 and 4 years, respectively. The second child is a defective, and will be a permanent charge upon the mother. Deceased had little means, and left his family dependent. His wages were $155 per month, with some expectancy of promotion and wage increase. His income was devoted very largely to the support of his family. He was industrious, economical, and attentive to his family.

The deceased's expectancy of life was 31.78 years. The widow's expectancy of life was 33.92 years. The widow, since the death of her husband, receives $35 per month from the Milwaukee firemen's pension fund, and each child receives $5 per month until age 18.

Upon the trial of the action defendant's liability for damages was admitted, and the sole questions submitted to the jury related to assessment of damages. The deceased came to his death through collision of defendant's automobile and a fire truck on which he was riding, resulting in hurling the deceased some 15 feet and in a crushing of his chest and other injuries. He lived only a short time, being conscious some three hours, and his physical suffering was somewhat deadened by morphine.

The jury assessed damages as follows:

+----------------------------------------------------------+
                ¦For the estate, exclusive of pain and suffering ¦$ 600 75 ¦
                +------------------------------------------------+---------¦
                ¦For pain and suffering                          ¦2,625 00 ¦
                +------------------------------------------------+---------¦
                ¦For compensation of the widow for pecuniary loss¦15,000 00¦
                +----------------------------------------------------------+
                

The latter sum was reduced by the court to $10,000, in compliance with the statutory limitation, and judgment was entered for $13,468.60.

The defendant assigns as errors that the second and third items of the verdict are excessive, and show prejudice and passion of the jury. Defendant demands a new trial.

John J. Maher, of Milwaukee (Freeman & Bendinger, of Milwaukee, of counsel), for appellant.

Rubin, Wurster & Rouiller, of Milwaukee (W. B. Rubin, of Milwaukee, of counsel), for respondent.

CROWNHART, J. (after stating the facts as above).

[1] There is no yardstick by which either the jury or the court can accurately measure the damages in a case of this kind. The Legislature has said that the jury shall assess such sum as they deem fair and just. Courts, while recognizing the primary right of the jury to fix the damages as in their judgment seems fair, have laid down some tests of reasonableness within the limits of which the jury may be confined. These tests are not and cannot be the same in all cases. The jury is confined by law to consider pecuniary loss only. That includes, of course, all valuable considerations. Counsel for both parties have furnished us with interesting tabulations and figures which are more or less speculative. But there are some very definite circumstances in this case that tend strongly to support the verdict for pecuniary loss to the widow. The salary, permanency of position, and probable promotion are definitely before us. The deceased was a faithful husband and father, industrious and saving. His income was largely devoted to his family....