35 N.W.2d 301 | Wis. | 1948
L. C. Brown, a resident of Ridgeland, Wisconsin, was killed May 10, 1946, when he was struck by a truck driven by Rudolph Luer. Luer was also a resident of Ridgeland. He was employed as a truck driver by Knute Berg of Dallas, Wisconsin. At the time of the accident Luer had an epileptic seizure, became unconscious, and lost control of the truck. The truck ran over the street curb and struck Brown who was working on the construction of a building on that side of the street. Brown died in a few minutes without regaining consciousness. His wife, Grace M. Brown, died about two and a half hours later from the shock caused by her husband's death.
Luer evidently had epileptic seizures a number of times before but did not know what they were. It was generally known in the village that he had such spells. He had a driver's license and except for the seizures seemed to be a good driver. He did not remember if he had been asked whether he was subject to epilepsy when he received his driver's license.
The General Accident Fire Life Assurance Corporation was the workmen's compensation insurance carrier on the employer of L. C. Brown. It paid $6,405.12 because of the death of Brown. Evelyn Eleason, administratrix of the estates of L. C. Brown and of Grace M. Brown, and the General Accident Fire Life Assurance Corporation brought an action against Western Casualty Surety Company, the casualty insurer of the truck, for the wrongful death of L. C. Brown caused by Luer's alleged negligence. The trial court found that Luer was not negligent; that the epileptic seizure was an "act of *137 God" and the collision an unavoidable accident; that Berg, the employer, was not guilty of negligence in hiring Luer. The court dismissed plaintiffs' complaint. Plaintiffs appeal. There are three questions to be determined on this appeal: (1) Was Luer negligent in operating a truck when he was subject to epileptic seizures? (2) Does a cause of action for wrongful death survive the death of the widow of L. C. Brown? (3) For whose benefit does a cause of action exist?
(1) Was Luer negligent in operating a truck when he was subject to epileptic seizures? The trial court held that he was not. The court regarded the running down of deceased as having enough of the elements of an unavoidable accident to excuse Luer from all liability for the death of Brown. In the memorandum opinion the belief is expressed "that the epileptic seizure suffered by Luer may properly be classified as an `act of God,' and that the injury to L. C. Brown which followed was an unavoidable accident." This conclusion lacks support because under sec.
Luer knew he was subject to spells or seizures. This appears from his testimony. After telling of the last he could remember before he lost control over his machine he said that he had been subject to fits of epilepsy before — he did not know how long, but he had those spells off and on before that. "I never saw any doctor about these spells before the accident. I was right behind the wheel when I had this spell. I lost consciousness completely. . . . I do not think they call it epilepsy. These spells when I lose consciousness last about fifteen minutes. During that fifteen minutes I am completely unconscious. I do not know what is going on at all. After I come out of them I am awfully weak. I do not think I can guide a car when I am coming out of a spell. When these spells come on me I am just about done for a half a day." He had suffered these seizures for approximately six years. It was generally known in the village that he was subject to such spells.
The trial court evidently based its ruling on the fact that Luer did not know that he had epilepsy. However, the undisputed evidence is that Luer did know that he was subject to spells which would render him unconscious for a quarter of an hour and very weak for some hours after. The problem then becomes a question of whether it is negligence for a man to drive a car when he knows that he is subject to such spells. It is considered that, as a matter of law, this is negligence. The fact that Luer did not know the technical name of his malady is not controlling. What is important is that he knew that *139 he might be unable to control the car which he was driving. He also must have known that if he lost control of the car there was danger of someone being injured. Driving a car where people are to be met with on highways today is dangerous enough if one has complete control of his powers. When a driver knows that he may become unconscious and lose that control at any moment, he must be held negligent in attempting to drive. This is in keeping with previous decisions and the statutes. The evidence warrants no other finding than that Luer knew he was likely at any time to become incapacitated to control a motor vehicle; that in itself is sufficient to make driving a car negligence.
As to the question of the negligence of Berg, Luer's employer, the evidence concerning his part in the hiring of Luer is such as to sustain the court's holding that he was free from negligence in that respect. He made a reasonable investigation of Luer's ability to drive and did not know of the epilepsy or the spells of unconsciousness.
(2) Does a cause of action for wrongful death in the widow of L. C. Brown survive her death? Appellants in their reply brief rely on the rule recognized in Milwaukee v. Boynton CabCo.
Under sec.
"An employer or compensation insurer who shall have paid a lawful claim under this chapter for the injury or death of an employee shall have a right to maintain an action in tort against any other party responsible for such injury or death. . . . If recovery shall be had against such other party, by suit or otherwise, the compensation beneficiary shall be entitled to any amount received over and above the amount that the employer or insurer have paid or are liable for in compensation, . . . and in no event shall the compensation beneficiary be entitled to less than one third of the amount recovered from the third party. . . ."
Therefore a cause of action existed with an interest therein in the lineal descendants of the deceased and the compensation carrier. Either one or both could sue for the damages caused to the descendants by the negligence of the third party.
(3) The question, for whose benefit does a cause of action for the wrongful death exist, is settled by statute. We are not presently concerned with the amount which any owner of an interest in the claim may be able to recover. That is to be measured by the pecuniary loss to the descendants. Sec. 331.04, Stats.
Both the descendants of the deceased and the compensation insurer had an interest in the recovery. The statutes referred to provide how those interests should be apportioned. This court has held that there is no separate cause of action created in the compensation carrier by sec.
By the Court. — Judgment dismissing the complaint of the administratrix of the estates of L. C. Brown and Grace M. Brown and holding Berg not negligent is affirmed. It is reversed as to the other plaintiffs. Cause remanded with directions to reinstate the complaints of the descendants of L. C. Brown and of the insurance carrier and for further proceedings according to law.