Mueller v. Silver Fleet Trucking Co. , 254 Wis. 458 ( 1949 )

I concur in Mr. Justice FAIRCHILD'S dissenting opinion and in addition note the following:

In my opinion the court's conclusion that, in an action for the death of a person caused by negligence of a defendant, the damages, — which sec. 331.04, Stats., provides shall not exceed $12,500 for pecuniary injury and $2,500 for loss of society and companionship, — shall not be diminished as prescribed in sec. 331.045, Stats., in proportion to the amount of the causal negligence attributable to the deceased, is not in accord with the provisions in relation to such damages in secs. 331.045 and 331.04 (1) (a) and (2,), Stats. The words in the provisions in sec. 331.04 (1) and (2), that, —

"`. . . in every such action the jury may give such damages,not exceeding $12,500, as they may deem fair and just in reference to the pecuniary injury, resulting from such death . . ." and ". . . not exceeding $2,500 for loss of society and companionship."

are so plain, unambiguous, and clear that there is no need or occasion because of which those provisions can be construed or applied as if they read (as stated in the court's opinion): "the amount recoverable in every such action shall not exceed the sum of $12,500." That sum and $2,500 for loss of society, etc., are the highest amounts at which a jury's assessment ofdamages for pecuniary injury and for loss of society, etc., can be sustained. But there is no provision whatever in sec. 331.04 (1) (a) and (2), Stats., as to what amount of such assessed damages is "recoverable" if there was also contributory negligence on the part of the deceased person. If there was such negligence there is applicable and controlling as to the amount which is recoverable the provision in sec. 331.045, Stats., that if such contributory negligence resulting in death, —

". . . was not as great as the negligence of the person against whom recovery is sought . . . any damages allowed shall be diminished by the jury in the proportion to the amount of negligence attributable to the person recovering."

Consequently, in order to determine what amount is recoverable in such an action, there is applicable to "such damages," as "the jury may give, " — not exceeding $12,500 for pecuniary injury and $2,500 for loss of society, etc., — said provision in sec. 331.045, Stats., that "any damages allowed shall be diminished by the jury in the proportion to the amount negligence attributable to" the injured person. In endeavoring to proceed in accordance with this provision, since its enactment in 1931, the trial courts could not, — in view of the rule that juries should not be informed by the court or counsel as to the effect or consequence of findings in a special verdict, (Schulzv. General Casualty Co. 233 Wis. 118,288 N.W. 803; Hupfer v. National Distilling Co.127 Wis. 306, 313, 106 N.W. 831; Jacoby v. Chicago, M. St. P. R. Co.165 Wis. 610, 622, 161 N.W. 751, 164 N.W. 88), — literally follow the provision that "any damages allowed shall be diminished by the jury in the proportion to the amount of negligence attributable to the persons recovering." Instead, in order to achieve the obviously intended purpose of that provision, it has been simpler, more practical, and unobjectionable to have the jury determine the percentages of causal negligence attributable to the respective parties; and then in accordance with such determination have the court diminish the damages assessed by the jury in so far as, in a death case, the amount assessed does not exceed the limitations prescribed in sec. 331.04, Stats. So, by reason of said limitations and in accordance therewith, thejury's assessment of damages in this action should be reduced to the permissible amounts. And then by reason of the provisions in sec. 331.045, Stats., in order to determine what amount is recoverable from defendants, the maximum permissible assessment of $15,000 for pecuniary damages and loss of society, etc., should be diminished by ten per cent because of the jury's finding that ten per cent of the total causal negligence was attributable to the deceased.

MARTIN, J., concurs in the dissents.