Opinion
May 7, 1953 —
June 2, 1953.
APPEAL from a judgment of the circuit court for Pierce county: KENNETH S. WHITE, Circuit Judge. Affirmed.
For the appellant there was a brief by Wilcox Sullivan of Eau Claire, and oral argument by Francis J. Wilcox.
For the respondent there was a brief by Doar Knowles of New Richmond, and oral argument by Warren P. Knowles III.
Action by plaintiff Kenneth L. Swanson, administrator of the estate of Anton J. Hanson, deceased, to recover damages arising out of the death of plaintiff's decedent after being struck by the automobile of Fred Thom, defendant's assured. From a judgment entered on the verdict of a jury, defendant appeals.
The accident occurred on December 3, 1950, a Sunday morning. It was not snowing, but some snow was blowing. Anton Hanson, age seventy-six years, was walking on the left side of a country road, going down a steep grade with a high bank on his left and a sharp ravine on the right side of the road. The graveled roadway was icy and covered with three to four inches of snow and there was a single car track.
Joseph Falteisek came around the curve at the top of the hill and started down. He testified that he had been traveling about 30 miles per hour; that as he came over the hill he did not see anything but after he started down he noticed a man in the road about 150 feet from the crest of the hill. He pumped his brakes so he could stop in time, and blew his horn. Hanson was then in the left wheel track, but he was well out of the traveled track when Falteisek stopped his car about 25 feet beyond Hanson to give him a ride. He stopped his car with the left wheels in the right track, making no observation whether there was anyone behind him. He saw Hanson start at an angle across the road; he did not notice him make any observation before starting to come across to the car; he had his head down. When Falteisek stopped his car he noticed the tires lifted the snow and created a kind of cloud of snow behind, the wind blowing it across the road. The Falteisek car was then struck from behind, the damage being at the left rear.
At the time of the accident the Thom car was being driven by Roland Thom, son of the assured, Fred Thom, who sat in the front seat beside him. Fred testified that the road was somewhat slippery but they had no trouble going up the steep hill on their way to church about an hour before. As the car came around the curve and down the hill he judged it was traveling about 30 miles an hour. He noticed the stopped car first. His own car did not slue; it was out of the traveled tracks from the start, on the right-hand side. As Roland swung to the left to go around the other car, Fred noticed Hanson in the center of the road. Hanson's head was not turned toward the Thom car. When Roland applied the brakes he turned the wheel to the right but the car went straight ahead and struck Hanson. Fred judged that the snow turned up by the stopping of the Falteisek car obscured Hanson. There is no evidence that Roland blew his horn at any time. The driver of the Thom car was not a witness at the trial.
There was also testimony by one Earl Johnson who was driving up from the bottom of the hill. He stated that he saw the Falteisek car pull over to the right and stop and that Hanson had started "right across the road" when he saw the Thom car coming over the hill; that Hanson had probably walked about 12 feet, disappearing behind the Falteisek car, and the Thom car turned to its left and tried to turn right, and then it hit Hanson, throwing him up and out onto the road.
The jury found Falteisek causally negligent as to the position in which he stopped his car on the highway; it found Thom causally negligent as to lookout and management and control; it found Hanson negligent as to his own safety in failing to maintain a proper lookout and in failing to yield the right of way. It attributed 30 per cent of the total negligence to Falteisek, 50 per cent to Thom, and 20 per cent to Hanson. It then awarded $200 for pain and suffering and $4,000 for pecuniary loss suffered by Hanson's children as the result of his death. judgment was entered on the verdict.
Further facts will be stated in the opinion.
Three questions are raised on this appeal: (1) Whether under sec. 331.04, Stats., the personal representative may bring an action in behalf of the relatives for damages due to wrongful death; (2) whether the negligence of the deceased was, as a matter of law, at least as great as that of the two drivers; (3) whether the evidence supports the finding of pecuniary loss to the children of the deceased.
We do not consider that the plaintiff's action is barred by sec. 331.04, Stats., which provides in part:
"(1) An action for wrongful death may be brought by the personal representative of the deceased person or by the person to whom the amount recovered belongs. . . .
"(3) If separate actions are brought for the same wrongful death, they shall be consolidated on motion of any party. Unless such consolidation is so effected that a single judgment within the limits hereinafter provided may be entered protecting the defendant or defendants and so that satisfaction of such judgment shall extinguish all liability for the wrongful death, no action shall be permitted to proceed except that of the personal representative."
For many years the right to prosecute wrongful-death actions was vested only in the personal representative, except where no survival action existed in favor of the estate, in which case the action could be maintained by the beneficiaries. After amendment the statute now provides that such an action may be commenced by either the personal representative or the beneficiaries, or both, but that separate actions for the same death shall be consolidated so that satisfaction of a single judgment shall extinguish all liability therefor. The purpose of the amendment is plain. It alleviates the hardships that were frequently suffered by beneficiaries under the old procedure and it avoids a multiplicity of suits which might be brought. Defendant contends, however, that where only an estate action is commenced there is no protection for the defendant against actions by beneficiaries and that the judgment will not be binding upon them since they are not parties.
Sec. 331.04, Stats., further provides:
"(6) Where the wrongful death of a person creates a cause of action in favor of the decedent's estate and also a cause of action in favor of a spouse or relatives as provided in this section, such spouse or relatives may waive and satisfy the estate's cause of action in connection with or as part of a settlement and discharge of the cause of action of the spouse or relatives."
The plaintiff here testified that before bringing the action he was authorized to do so by all of the children except one. Since that one had filed no claim against defendant by the time of trial, which was in April of 1952, he is now barred from starting an action. The question is therefore moot.
Defendant also contends that the deceased should be found, as a matter of law, guilty of negligence at least equal to that of the two drivers. We are of the opinion that on the basis of the entire record, from which we have set out the testimony in some detail above, the comparison of negligence was for the jury. Grohusky v. Ferry (1947), 251 Wis. 569, 30 N.W.2d 205; Johnson v. Viebrock (1953), 263 Wis. 284, 57 N.W.2d 337. There was testimony from which the jury could conclude that Hanson had cleared at least half of the roadway and was behind the Falteisek car when he was struck.
The third contention of the defendant is that decedent's children have suffered no pecuniary loss by reason of the death. It is true that Hanson was an elderly man, retired, and living with his children. The evidence shows that when any of the children were ill or otherwise in need of financial help, he loaned money to them; he was a kind man and looked after all his children when they were in trouble or need. While there was no evidence of the reasonable value of his earning power, it was shown that he was a healthy, robust man who actively participated in the operations on his son's farm every day. He wanted no pay except room and board. From the evidence the jury could well have concluded that as an experienced farmer, actively engaged in helping his son with the work, and interested in the welfare of the owner of the farm, his services were of a greater value to his son than those of a hired hand.
"`The personal services of a skilled farmer are worth more than the mere manual labor he may perform. His judgment, skill, and experience, gained by a long life of successful toil, should be also considered, and none are better qualified to give such an estimate than those who know him, and are themselves farmers of character and experience.' . . . It has been held that it is not essential to a recovery that evidence be offered of the pecuniary value of the services performed by the deceased or of the profits which he derived from his business, the other facts enumerated being shown, and, in addition, the age, sex, circumstances, and condition in life of the next of kin. But in the absence of proof showing the earning power or habits of industry of the deceased it is error to charge that the pecuniary loss may be estimated from his age, health, and habits. . . .
"The evidence of pecuniary injury need not be very strong in order that the case may go to the jury except as to damages made up of actual disbursements; . . . A reasonable probability of pecuniary benefit is all that is required." 5 Sutherland, Damages (4th ed.), pp. 4910, 4911, sec. 1268.
In Boyle v. Larzelere (1944), 245 Wis. 152, 155, 13 N.W.2d 528, this court said:
"These cases are clearly cases in which a verdict by the jury upon the amount of pecuniary loss of the parents must be sustained if there is credible evidence to sustain it; even though the finding of the jury on the matter of pecuniary damages was against the great weight and clear preponderance of the evidence, that does not warrant the trial court in setting it aside for any purpose other than granting a new trial. There are numerous cases holding that where there is credible evidence to sustain the verdict of the jury, it must stand."
This rule was already well established in 1886 where, in Schrier v. Milwaukee, Lake Shore Western R. Co. (1886), 65 Wis. 457, 462, 27 N.W. 167, this court considered a verdict of $2,000 for the death of the plaintiff's eighteen-month-old son:
"As this court has often said, the statute gives the jury a wide scope in awarding damages within a specified limit. The jury may give such damages `as they shall deem fair and just' with reference to the pecuniary injury resulting to the relatives named from the death of the person killed. Under our decisions upon this statute, we do not feel justified in granting a new trial in this case because of excessive damages. We shall not go over our decisions upon this subject. Suffice it to say that intelligent and honest jurors will reach different results in this class of cases; and, unless the damages given are so large as to indicate some bias or perversion of judgment on the part of the jury, we are unwilling to grant new trials on that ground."
The determination of the amount of damages was for the jury upon the evidence presented; and while the amount awarded may appear generous, it is not so excessive as to indicate that the verdict is the result of passion and prejudice on the part of the jury.
Defendant further asserts that the trial court erred in allowing the eyewitness Johnson to testify as to his opinion of Thom's speed; in instructing the jury with regard to Thom's duty as to speed in connection with the question of his management and control; and in refusing to give an instruction with respect to the emergency doctrine. No question was submitted as to speed and the admission of Johnson's testimony was in no way prejudicial.
We cannot agree that the court should have instructed the jury on the emergency doctrine. The evidence showed that Falteisek had traveled the same way as Thom and had stopped without apparent difficulty. Thom had driven up the hill earlier that morning and had no trouble going up the hill. Fred Thom saw the Falteisek car when it was stopped approximately 150 feet ahead; he said his own car did not slue. Under these circumstances, since the driver of the Thom car did not testify, it would be pure speculation to assume that he was presented with an emergency.
In our opinion the case was fully and fairly tried and the verdict appears to be the result of careful weighing of the evidence and impartial judgment on the part of the jury.
By the Court. — Judgment affirmed.