109 Wis. 94 | Wis. | 1901
It is so well settled that a complaint to ■enforce the cause of action given by secs. 4255, 4256, Stats. 1898, must contain a statement of the facts showing the survivorship of some one of the persons for whose benefit the statutory right was created, and that such person- was pecuniarily interested in the continuance of the life that was wrongfully terminated, that we deem it unnecessary to discuss the subject.
Counsel for respondent concede the proposition contended for by appellant on this appeal, to the extent indicated, but say that the calls of the statute are satisfied by facts expressly or by necessary implication stated in the complaint. Counsel for appellant say that the damages recoverable are, in their nature, special, and that they must be pleaded with all the particularity required by the rule as to such damages, strictly so called. True, the damages are special in a sense, but they are not such within the general meaning of the term. Many cases are cited to our attention where the term “special” is used in regard to such damages. It is not necessary to refer to and review them in detail. The distinction between general and special damages is that the former are necessarily implied from the wrong, while the latter are only attributable to the wrong by reason of some circumstance or circumstances not generally present in such a situation. For instance, if a person be deprived, by the wrongful act of another, of the capacity to labor and earn money, the general damages that result are considered to be the reasonable value of the services of an ordinary person of his age, at ordinary labor. In order to warrant a
In the case cited, which is appellant’s chief reliance, a complaint, in an action for damages for the negligent killing of a husband and father, was condemned because it did not state any fact indicating pecuniary loss to the widow other than that she was left surviving with a family of several children. It was said that pecuniary loss to a surviving widow under such circumstances is not necessarily to be implied. However, it was said that probably the complaint would have been sufficient if it had shown the age of the deceased and that he was of sufficient ability to contribute to the support of his family. The rule adopted is rather severe and should not be extended; yet, as we have seen, a mere statement indicating ability to earn money, which by reasonable inference’ would be devoted, in part at least, to the support of the family, would have cured the weakness in the complaint, discovered by the court. That field is fully covered here by the allegations that the deceased was intelligent, in good health, and capable of earning considerable sums of money.
The rule laid down in Chicago v. Hesing, 83 Ill. 204, 207, cited by respondent’s counsel, is unquestionably sound, that where the person wrongfully killed is a minor and leaves a 'father who would have been entitled to his services had he lived, the law implies pecuniary loss for which compensation under the statute is given. Of course, the damages so implied are general damages only, such as necessarily ordinarily spring from such a situation, and must be so limited on the trial, if the allegations in the complaint, as in this
What has been said sustains the complaint only as a claim for loss of service of the deceased during the balance of his minority. No fact is pleaded from which loss can be claimed, based on- reasonable anticipation of receiving pecuniary benefits from a continuation of the life' of the deceased subsequent to his minority. As we understand it, respondent concedes that.
By the Court.— The order is affirmed.