173 Wis. 477 | Wis. | 1921
The following opinion was filed January 11, 1921:
Twelfth street in the city of Milwaukee runs north and south and intersects Prairie, and Chestnut streets running east and west at ^ right angles, Chestnut street being- one block north of Prairie street. Between 7:30 and 8 o’clock on the evening of December 7, 1917, the defendant was driving1 his automobile south on Twelfth street. It was a clear moonlight night. The headlights on the defendant’s automobile were burning. On Twelfth street there are two car lines, the north-bound cars running upon the easterly tracks and the south-bound cars running upon the westerly tracks. The deceased lived at 1222 Prairie street, between Twelfth and Thirteenth streets and west of Twelfth street. She had alighted from a northbound street car, which had stopped at the usual stopping place on the northeast corner of Twelfth and Prairie streets, and while crossing Twelfth street from east to west to go to her home was struck by defendant’s automobile which
It is the contention of appellant that the court erred in refusing to grant defendant’s motion -to change the answer to the second part of the fifth question relating to the pecuniary damage sustained by the children from $2,250 to nothing. The court ordered that unless the plaintiff should remit from the $2,250, the amount fixed by the jury for pecuniary loss to the children, the sum of $750, there should be a new trial. The plaintiff elected to make the remission and judgment was entered accordingly. The plaintiff complains of this ruling and contends' that it was error for the court to order a new trial unless the plaintiff should make the remission. If the plaintiff desired to raise the question of whether or not. there was an abuse of the trial court’s discretion in ordering a new trial under the
The defendant also contends that there was no showing that the children of the deceased suffered any pecuniary loss. The evidence showed that the deceased had no regular employment. She kept house for herself and her two daughters until the marriage of the elder daughter and then for herself and her younger daughter, Minetta. She went out occasionally to do work by the day. She had no regular fixed employment. There was no evidence showing how many days during the year she worked nor as to the rate of compensation she received when employed. It is the further contention of defendant that from a purely financial standpoint it is not shown that her earnings exceeded the cost of her maintenance and therefore she made no contribution in a financial sense to her children. The showing in this case was very meager. Minetta, the younger daughter, was at the time of her mother’s death seventeen years of age. While there can be no recovery for society and companionship, there is no hard-and-fast rule by which pecuniary damages may be measured in all cases, We adopt the rule laid down by the supreme court of the United States in Mich. Cent. R. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192, to the effect that a minor child “sustains a loss from the death of a parent, and particularly of a mother, of a kind altogether different from that of a wife or husband from the death of the spouse. The loss of society and companionship, and of the acts of kindness which originate in the relation and are not in the nature of services, are not capable of being measured by any material standard. But the duty of the mother to -minor children is that of nurture, and of intellectual, moral, and physical
Upon the trial it was stipulated that the amount expended for hospital, doctor, and funeral expenses was $407.50. In entering judgment, interest on this amount was allowed from the cjate of the accident to the time of entry of judgment. Of this the defendant complains. Necessary reasonable expenditures for physician, hospital, and burial are to be taken into consideration by the jury in determining the amount of damages which the plaintiff is entitled to recover. The damages do not become liquidated and fixed itntil the amount thereof is determined by a verdict. The trial court was in ■ error in allowing interest upon these items. The recovery here is not by way of implied contract to reimburse, but the expenditures are shown .as an element of damage because they are .due to the negligent act of the defendant for which he is liable. Olson v. Laun, 170 Wis. 106, 174 N. W. 473; J. I. Case P. Works v. Niles & Scott Co. 107 Wis. 9, 82 N. W. 568. The judgment is modified by deducting therefrom the sum of $50.94 interest.
By the Court. — The judgment of the circuit court is modified as indicated in the opinion, and as so modified is affirmed, neither party to recover costs in this court. The appellant shall pay the clerk’s fees.
A motion for a rehearing was denied, with $25 costs, on March 8, 1921.