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

^* Motion for rehearing denied, with $25 costs, on June 7, 1949. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This action was begun on May 10, 1945, by Agnes R. Mueller and Liberty Mutual Insurance Company, plaintiffs, against the Silver Fleet Trucking Company and its insurance carrier, the Preferred Accident Insurance Company of New York, defendants, to recover damages on account of the death of Elmer H. Mueller, husband of the plaintiff Agnes R. Mueller, alleged to be due to the negligence of the Silver Fleet Trucking Company, hereinafter referred to as the "Trucking Company."

The Trucking Company was engaged in hauling coal by truck for the Wisconsin Ice Coal Company, delivering it to the Veterans Administration at Wood, Wisconsin. The coal was to be delivered to the so-called hopper room. The approach to the hopper room consisted of a bituminous, macadam-surfaced road with a gentle incline of two inches in ten feet. The hopper room faced the south and the door to the hopper room was on the south side. The door was ten feet nine inches in width, and was twelve feet and one-quarter inch in height when opened. The room was oblong in shape, eleven feet four inches in width, with a depth of twenty-one feet six inches. The floor of the hopper room was of reinforced concrete and was level. In the concrete floor there was a grating so constructed that the coal would fall into the hopper below. The grate was eight feet by eight feet square. The grate was in four sections, each of which was two feet wide and eight feet long. Each of the four sections weighed approximately four hundred pounds. In the bottom of the grate were three-inch openings through which the coal dumped or shoveled on the grates could drop into the coal hopper below. The practice was to have the coal dumped on the grates so that it would fall by gravity to the hopper below.

The deceased Elmer H. Mueller was employed by the Wisconsin Ice Coal Company, hereinafter referred to as the "Coal Company," for the purpose of seeing that the coal dropped through the grates into the hopper, and to clean up the coal which spilled so that the trucks would not be required to spend too much time at the hopper room.

The truck in question was being driven on January 11, 1944, by one Kagel. He had made two deliveries of coal to the Soldiers' Home on January 10th, and one delivery on January 11th previous to the one in question. The truck weighed eight thousand five hundred fifty pounds and at the time in question the load weighed thirteen thousand nine hundred fifty pounds, a total of eleven and one-quarter tons.

When Kagel arrived for the purpose of unloading the truck he found another truck unloading coal on the grates. Mueller was in the hopper room punching the coal through the grates. After the preceding truck left, Kagel backed his truck to the hopper room very slowly. He was watching his left rear wheels and had the left door of his cab open. Mueller was standing between the guard and the east wall with a piece of four by four in his hand, to be used in blocking the truck.

Kagel testified as follows:

"On my prior deliveries I had been in the room where the coal was delivered and was familiar with the setup. . . . It was my intention to stop before the truck got onto the grate, and I had no intention of backing onto the grate. I was watching the truck carefully for the purpose of stopping it before it hit the grate. . . . There was some play in the differential or rear universal joint at the time of the accident. That condition existed on the day of the accident. I was familiar with the fact that the truck would roll some after the brakes were applied, and I knew that at the time I backed up. I applied my brakes to stop the truck before it got on the grate but it rolled onto the grate."

As the truck rolled onto the grate the grate buckled, the truck tipped to the east, Mueller was caught between the body of the truck and the east wall and fatally injured.

The case was tried to the jury. The jury found, (1) that the driver of the truck was negligent in backing the same onto the grates, (2) that such negligence was an efficient cause of the death of Elmer H. Mueller, (3) that Elmer H. Mueller was negligent in placing himself in the position he was when he was killed, and (4) that such negligence was an efficient cause of his death, attributed ninety per cent of the negligence to the driver of the truck and ten per cent to the deceased Elmer H. Mueller, assessed the damages to the plaintiff because of the death of her husband at $35,000, and for the loss society and companionship at $5,000. Judgment was entered for the sum of $13,680 and costs, in all $13,933.14, from which the defendants appeal. Additional facts will be stated in the opinion. Defendants contend that the evidence is not sufficient to sustain the jury's finding as to the negligence of the driver of the truck. We have carefully reviewed the evidence and are of the opinion that the evidence was sufficient to sustain the jury's findings. Kagel knew that Mueller was on the inside of the hopper room. He knew that the grates were not intended to hold a weight of eleven and a quarter tons; he had carefully avoided backing the truck onto the grates on previous deliveries and was well acquainted with the entire situation. Some attempt is made to excuse Kagel on the ground of play in the differential. There was nothing to indicate to Mueller that Kagel could not stop the truck on this occasion as he had on previous occasions. Kagel, on the other hand, was aware of the defect, if any, and if Mueller was running any risk because of it he should have warned Mueller. We conclude that the jury could properly find from the evidence that Kagel was not in the exercise of ordinary care under the circumstances.

During the course of his examination Kagel was asked the following questions:

"Q. Now, in the backing-up process you alone control the truck, don't you? A. I did.

"Q. Nobody else had control of your truck. You had full control? A. This man Mueller told me he would place the block."

He had testified in response to a previous question that Mueller had blocked the truck at the time of a former delivery after the truck had stopped. The trial court sustained an objection to a question by which the defendants sought to bring out the entire conversation between Kagel and Mueller. There was no offer of proof and there is nothing to indicate whether the evidence excluded would have been material. It is considered that in sustaining the objection no prejudicial error was committed.

It is next contended that the jury was not properly instructed. The following instruction is complained of:

"In determining your answer to this question you will consider the nature and construction of the grates over the coal hopper, the weight of the truck, together with the load of coal contained in it; the condition and position of the grates as the driver backed his truck upon the grates; the fact that the truck driver intended to back his truck only up to the grates and not on them; and the further fact as to whether or not he ought to have anticipated in the exercise of ordinary care that by backing his truck upon the grates there was any danger of disturbing the position of the grates and also the position of the truck if the position of the grates should be disturbed."

The language complained of is as follows: "the fact that the truck driver intended to back his truck only up to the grates and not on them.

The fact that Kagel on previous occasions had not backed the truck onto the grates and did not intend to do so this time was certainly a fact to be considered in determining whether he was negligent. It is considered that the instruction, taken as an entirety, was proper.

On behalf of defendants it is further contended that the jury assessed a grossly disproportionate amount of negligence against the defendants. The jury found the deceased negligent in placing himself in the position he was when he was killed, and found that his negligence was ten per cent of the negligence which caused his death. The position of the deceased before the accident and the place where his body was found after the accident establishes the fact that he was in a safe place and not in a place of danger had the truck stopped where the driver intended to stop it and where trucks had been stopped on prior occasions.

The place where Mueller was standing became a place of danger due solely to the negligence of the truck driver. It does not appear from the record that the deceased consciously placed himself in a place known to be dangerous. We hold the proportion of negligence attributable to Mueller, as found by the jury, cannot be disturbed.

On a motion to review, the plaintiffs seek to have the judgment modified by changing the words and figures "thirteen thousand six hundred eighty ($13,680) dollars" therein to "fifteen thousand two hundred ($15,200) dollars," and by changing the figures "$13,933.14" to "$15,453.14." This motion raises a question which is, so far as we are aware, one of first impression. The jury apportioned the negligence ninety per cent to the driver of the truck and ten per cent to the deceased, Elmer H. Mueller, and assessed damages as follows:

(a) For burial expenses of the deceased Elmer H. Mueller, by the court, $200.

(b) For the pecuniary loss sustained by the plaintiff because of the death of her husband, $35,000.

(c) For the loss of the society and companionship of her husband, $5,000.

The jury did not complete the verdict as required by sec. 331.045, Stats., which provides:

"Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished by the jury in the proportionto the amount of negligence attributable to the person recovering."

The court did not instruct the jury to diminish the amount found as the plaintiff's damages by the proportion of negligence attributable to the person recovering, and from observation of many records brought to this court in comparative-negligence cases it is apparent that this is the common practice of trial courts.

Trial courts do not instruct the jury with respect to the amount which the damages allowed the plaintiff shall be diminished in proportion to the amount of negligence attributable to the plaintiff, or in death cases with respect to the limitation provided for in sec. 331.04, Stats., because it would inform the jury with respect to the result of their verdict and therefore, under the rulings of this court, might be erroneous.Schulz v. General Casualty Co. (1939),233 Wis. 118, 288 N.W. 803.

In the trial courts give no instruction with regard to the completion of the verdict, and upon the basis of the facts found by the jury make the necessary mathematical computation, the result is nevertheless the verdict of the jury.

The statute provides that the damages allowed shall be diminished by the jury in proportion to the amount of negligence attributable to the person recovering. "Damages allowed" are clearly the total amount found by the jury to be the damage sustained by the plaintiff. This is the amount to be diminished by the jury in proportion to the amount of negligence attributable to the plaintiff. Here the jury allowed the plaintiff damages in the total amount of $40,200. This amount under the finding of the jury should be diminished by ten per cent. This leaves a remainder of $36,180, which is the amount which the plaintiff would be entitled to recover if it were not for the provisions of sec. 331.04, Stats. In accordance with the provisions of that section the plaintiff cannot have judgment for damages in an amount in excess of $15,000. Therefore the judgment must be for that amount plus the costs.

In this case the jury found that the pecuniary loss of the plaintiff was $35,000, loss for society and companionship, $5,000, plus $200 funeral expenses. The trial court reduced this amount to $15,200 and then applied the proportion of the amount of negligence attributable to the plaintiff, which was ten per cent, leaving the net amount of damages recoverable by the plaintiff as $13,680.

This holding was clearly erroneous. Sec. 331.045, Stats., explicitly provides that any "damages allowed" shall be diminished by the jury in the proportion to the amount of negligence attributable to the person recovering. There is nowhere in the statutes any authority for diminishing the amount specified in sec. 331.04 (1) and (2).

Sec. 331.04 (1) (a), (2), Stats., provides:

". . . and 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 to the relatives of the deceased specified in this section; . . .

"(2) In addition to the benefits provided for in subsection (1), a sum not exceeding $2,500 for loss of society and companionship shall accrue to the parent or parents or husband or wife of the deceased."

It is argued that this provision requires the trial court to reduce the amount of damages found by the jury to $15,000 before it is diminished in proportion to the amount of negligence attributable to the plaintiff.

This provision has been dealt with by the court in a number of cases. In Cameron v. Union Automobile Ins. Co. (1933),210 Wis. 659, 668, 246 N.W. 420, 247 N.W. 453, which was a case which involved comparative negligence in which a widow was suing to recover damages for the death of her husband, the court said:

"The amount named in the statute [sec. 331.04 (2)] is not to be considered as indicating that $2,500 is adequate compensation for every or any loss of the kind that may be suffered, but as merely limiting the amount recoverable. The statute formerly made $5,000 the limit of recovery in any case of death by wrongful act. Sec. 4256, R.S. 1878. It is manifest that this amount was not considered by the legislature as adequate compensation for the pecuniary loss sustained through the death of a young husband whose annual earnings were many times that amount. The statute here involved like that of 1878 is considered, not a measure of compensation,but a limit to recovery." Cited with approval inErikson v. Wisconsin Hydro-Electric Co. (1934),214 Wis. 614, 254 N.W. 106.

In Potter v. Potter (1937), 224 Wis. 251, 259,272 N.W. 34, a case involving comparative negligence, the court said:

"We do not regard the foregoing as a circumstance reasonably tending to show that the award was excessive. As heretofore held in Cameron v. Union Automobile Ins. Co. [supra], the statute, (sec. 331.04 (2)) places a limit uponrecovery, but does not constitute a measure of adequate compensation."

In Schulz v. General Casualty Co., supra, referring to sec. 331.04, Stats., the court said (p. 127):

"The statute does not measure the amount of compensation,it only limits it. [Citing Cameron v. Union Automobile Ins.Co., supra, and Potter v. Potter, supra.] If a jury exceeds the limit, the court can reduce the allowance to the statutory limit. Courts of other states are cited as holding mention of the statutory limit in death cases proper. [Citing cases.] If they do so hold, we are not bound by their holdings. We do not so consider it, although it is not prejudicial if the assessment of the jury is proper, measured by the correct standard." See also 25 C.J.S., Death, p. 1262, sec. 112.

Under the doctrine of these cases the provision in sec. 331.04 (1) (a), Stats., already set out should be applied as if it read: "The amount recoverable in every such action shall not exceed the sum of $12,500." Sec. 331.04 (2) should also be so construed. The language found in the statute is almost identical with that found in Lord Campbell's Act, enacted August 26, 1846. (9 10 Vict. p. 531.)

The practice which has been followed by the trial courts in submitting comparative-negligence questions need not be disturbed by reason of our holding in this case. The initial error in this case was in the assumption that the provision of secs. 331.04 (1) (a), and 331.04 (2), Stats., was a measure of compensation instead of being as it is, a limit upon the amount recoverable in death actions, aided also by the second assumption that the limit of recovery under the statute should be diminished in proportion to the amount of negligence attributable to the plaintiff. It is to be remembered, as already stated, that the jury's verdict is not complete under the forms ordinarily submitted until the necessary mathematical computation has been made. When that is done the statutory limits contained in sec. 331.04 are to be applied to that amount.

While funeral expenses are recoverable in a proper case they are within, not in addition to, the amounts specified in sec. 331.04, Stats. In Cochrane v. C. HenneckeCo. (1925), 186 Wis. 149, 153, 202 N.W. 199, the court said:

"But the amount of such expenses must be included within the limit fixed by the statute, namely, $10,000. To hold otherwise were to hold that a plaintiff might recover the statutory limit and then something in addition. The statutory limit is intended to include all the possible loss that one entitled to recover under the death statute has sustained by reason of the death of the deceased. As a part of such loss funeral expenses are included."

The trial court therefore was in error in adding $200 funeral expenses to $15,000.

By the Court. — It is ordered and adjudged that the damages allowed by the jury be reduced to $15,000 and that the judgment be modified by increasing the amount of recovery to $15,000, plus the costs amounting to $253.14, and that as so modified the judgment is affirmed.