Johnson v. St. Paul & Western Coal Co.

131 Wis. 627 | Wis. | 1907

Timlin, J.

Tbe appellant assigns as error that tbe trial court bad no jurisdiction of tbe cause, basing that claim upon tbe fact that during tbe pendency of an action by tbe infant against tbe same defendant to recover for tbe same negligent acts tbe parties to this action entered into a written stipulation beaded or entitled, “In tbe Superior Court of Douglas County,” and to tbe effect that all tbe issues in this case except tbe issue as to tbe amount of damages should abide and be determined by tbe final result of tbe said action by tbe infant, and after said judgment in tbe last-mentioned i cause (if in favor of tbe infant) tbe parties to this cause should try and submit, upon tbe pleadings and proceedings as they then stood, tbe question of tbe amount of damages in tbe above-entitled court. Thereafter tbe defendant filed an affidavit of prejudice against tbe judge of tbe superior court, stating therein that tbe affidavit was made for tbe purpose‘of applying for a change of tbe place of trial or calling in some circuit judge as provided by sec. 2625, Stats. (1898). IJpon tbis affidavit and motion of the defendant the judge of the superior court sent this cause for trial to the circuit court for the same county, and at the opening of the trial in the circuit court defendant objected to that court proceeding with the trial upon the ground that it had not jurisdiction to hear, try, or determine this cause on account of the stipulation. But the defendant, when it filed the affidavit of prejudice and moved for the change of venue, itself put a construction on the stipulation in question by which it is bound. We cannot presume that the affidavit and motion for change were not made in good faith under the belief that such proceeding was within the purview of the stipulation, and the defendant cannot now be heard to say that there was error in doing that which it requested to have done. We must hold under the circumstances that according to the construction placed upon the stipulation by the defendant and acquiesced in by the plaintiff it permitted a change of the place of trial.

The action mentioned in the stipulation was determined in favor of the infant, and there was therefore nothing to be tried in this cause but the mere question of the amount of plaintiff’s damages. No special verdict was requested by the appellant within the time prescribed by sec. 2858, Stats. {Supp. 1906; Laws of 1903, ch. 390), but the trial court did submit a special verdict consisting of one question in these general words: “What sum of money will compensate plaintiff for the damage he has sustained by reason of the injury to his son ?” To which the jury answered, “$1,341.”

The defendant asked for the submission of other questions to the jury and assigns error because of their refusal. The first of these questions asked for the fact of injury, which was contrary to the stipulation. The second, third, fifth and sixth, and two unnumbered requests calling for the separation of damages accrued up to the time of trial from prospective loss of-services were properly refused in the discretion of the circuit court. The fourth, calling for the amount of the annual earnings of tbe infant paid oyer to tbe plaintiff prior, to tbe injury, tbe seventh, asking tbe jury to specify tbe injuries wbicb would cause future disability, tbe eigbtb, asking wbat sum tbe plaintiff expended for medical attendance and care, and tbe remaining unnumbered requests, asking tbe division or itemization of tbe damages into items for nursing, medical attendance past and prospective, etc., were all properly refused in tbe discretion of tbe circuit court. Tbe questions to be submitted for a special verdict should, of course, cover tbe issuable facts, but beyond this requirement the form of tbe questions and tbe degree to wbicb they should go into detail are largely in tbe discretion of tbe trial court. McDougall v. Ashland S.-F. Co. 97 Wis. 382, 73 N. W. 327; Schumaker v. Heinemann, 99 Wis. 251, 74 N. W. 785; Hebbe v. Maple Creek, 121 Wis. 668, 99 N. W. 442. As a general rule, no itemization of unliquidated damages by separate questions of tbe verdict is necessary. Blesch v. C. & N. W. R. Co. 48 Wis. 168, 2 N. W. 113.

Tbe complaint averred that a swinging block struck tbe infant on tbe cheek and knocked him down thirty feet into tbe bold of a vessel, where be remained unconscious -for some time. It then enumerates as consequences of this (1) a swelling on bis right cheek; (2) intense pain; (3) confinement to bis bed for six weeks; (4) a concussion of tbe spine. These are followed by a general averment that the injuries to tbe infant were of a permanent nature, etc. It is contended that under tbe stipulation hereinbefore mentioned, and under tbe general rules of pleading as well, tbe plaintiff ought not to have been allowed to recover for loss of services, nursing, dr medical expenses resulting from anything produced by tbe injury in question except concussion of tbe spine. We do not so interpret tbe scope and meaning of this pleading. Tbe gravamen of tbe complaint is tbe wrongful injury to tbe infant causing disability, causing thereby loss of services and expenses. Tbe disability is not averred to flow alone from concussion of the spine, but from all that was done in knocking’ the infant into the vessel’s hold. We therefore perceive no error in the refusal to charge the jury as requested, or in the charge to the jury as given, upon this construction of the complaint. We 'feel it our duty under the law to give the complaint a liberal construction to sustain it as a basis for recovery of all the damages which in law. are consequent upon the breach of duty averred. Hart v. Neillsville, 125 Wis. 546, 104 N. W. 699, and cases in opinion.

Error is assigned because the court refused defendant’s request to instruct the jury that the plaintiff was not entitled to recover for the services of plaintiff’s wife in nursing the infant, and also because the court did charge the jury in such words as to permit the allowance of this item, as well as other items for caring for, nursing, and medical attendance upon the infant made necessary by the injury in question. If the law regards the right of a father to recover for personal injury to his child merely from the viewpoint of his pecuniary loss of the services or wages of such child, it would seem to follow that his expense in restoring or in attempting to restore the child to a condition in which the child would be able to perform services or earn wages would also be part of his loss, and so we find it adjudged in Selleck v. Janesville, 104 Wis. 570, 80 N. W. 944, in the case of a husband suing for loss of services of his wife caused by personal injuries to her, and where the legal right to recover is analogous to that in the case at bar, that the husband may recover the value of his own services in necessary attendance upon his wife, not, however, exceeding the amount for which he could have employed others to do that work. The same rule must apply to the case of a parent seeking to recover his damages for negligent injury to his infant child. His wife’s services are his. There was no error in refusing the request under consideration nor in that part of the charge permitting the jury to consider this element of damage.

Objection is made to tbe use of the words “caring for Lis son during the illness resulting from the injury.” But we regard this word “caring” in this context as a synonym for “nursing.” It must he understood to mean the usual attendance upon sick persons which is quite often spoken of as “caring for the sick.” Indeed, the learned counsel for appellant who now vigorously criticises the use of this word in the charge of the court himself proposed a question to he submitted to the jury asking them what sum of money, if any, did the plaintiff necessarily expend for medical attendance and care of the infant in curing him of said injuries. Here, as in the charge of the court, construing the word with reference to the subject matter of discussion and the context, this meant such care as sick persons require, which is but another way of saying “nursing.”

Allowing for the loss of services and nursing, doctor’s bill, and money paid for medicine, there was evidence to support the amount of damages awarded. The period of the infant’s minority after his injury was four and three-fourths years, and deducting, as counsel for appellant does, $200 for medicine and doctor bill, and deducting $141 for nursing, there would be left $1,000, which divided by four and three-fourths would leave about $210 per year during the period of his minority, which seems not immoderate.

The motion for a new trial was properly denied, and we discover no error in the trial below prejudicial to the appellant.

By the Court. — The judgment of the circuit court is affirmed.