Brown vs. The Chicago & Northwestern R. Co. taxable costs in this court and in the circuit court, to be paid out of the funds in its hands. No costs will be taxed for or against any of the other parties. By the Court.-Judgment reversed, and cause remanded with directions to enter judgment in accordance with this opinion. BROWN, Administrator, Appellant, VS. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY, Respondent. November 28, 1898 — February 21, 1899. Death by wrongful act: For whose benefit action can be maintained: Pleading: Survival of action for injuries to person. 1. The liability created by sec. 4255, Stats. 1898, in case of the death of a person by an actionable injury for which such person could have recovered damages if death had not ensued, is for the benefit of certain relatives of the decedent mentioned in sec. 4256, Stats. 1898, and in default of such relatives there is no liability. 2. In an action for damages under said sections, if the complaint fails to show the then existence of relatives entitled to benefit by the recovery, it is fatally defective. 3. Under sec. 4253, Stats. 1898, actions for injuries to the person survive, though death ensue from the injury. 4. The right of action for an injury to the person which survives under sec. 4253 is separate and distinct from the loss to surviving relatives recoverable under secs. 4255 and 4256. 5. If a person die from the effects of an actionable personal injury, not having received satisfaction for his damages, action therefor for the benefit of his estate may be prosecuted to satisfaction after his death. [Whether such satisfaction in advance of an action under secs. 4255 and 4256, if circumstances exist rendering such latter sections applicable in any event, would be a bar to such action, not decided.] [Syllabus by MARSHALL, J.] APPEAL from an order of the circuit court for Dane county: R. G. SIEBECKER, Circuit Judge. Reversed. Brown vs. The Chicago & Northwestern R. Co. Action to recover damages for a personal injury to August Zilmer, deceased, and also damages for his death. The complaint states all formal matters, and, in substance, that on the 29th day of August, 1895, at the incorporated village of Deerfield in this state, at a crossing of defendant's railroad with a public street in such village, August Zilmer was traveling on the street with due care, riding in a wagon drawn by a horse, and while so circumstanced defendant's servants caused one of its locomotives to approach and go onto and over the crossing at an unlawful rate of speed, to wit, forty miles an hour, without in any manner signaling such approach, whereby, without contributory fault of Zilmer, the locomotive struck his horse and wagon, and threw him with great force and violence on the ground, bruising and wounding him upon his head, body, and limbs, thereby causing him to suffer great mental and physical pain, from the effects of which he on the same day died, to the plaintiff's damage in the sum of $5,000. The complaint further stated that the deceased left no wife or father or mother or children, but left some brothers and sisters, and stated facts showing that a pecuniary loss was sustained by them by reason of his wrongful death, to the extent of $5,000. The defendant demurred generally to the complaint, which demurrer was sustained, and from the order accordingly entered this appeal was taken. For the appellant there were briefs by Bushnell, Rogers & Hall, and oral argument by A. R. Bushnell. For the respondent there was a brief by Fish, Cary, Upham & Black, and oral argument by John T. Fish. The following opinion was filed December 16, 1898: MARSHALL, J. Two questions are presented on this appeal: (1) Can brothers and sisters of one wrongfully killed recover damages from the wrongdoer to compensate them for the pecuniary loss thereby sustained? (2) Does a cause Brown vs. The Chicago & Northwestern R. Co. of action for damages to a person, because of an injury from the effects of which death ensues, survive to his administrator for the benefit of his estate? The decision of either of these questions in favor of the appellant must result in a reversal of the order appealed from. Actions for death losses sustained by surviving relatives are wholly statutory, and therefore, unless clearly thus given, do not exist at all. The subject in this state is covered by secs. 4255, 4256, Stats. 1898, which provide that if the death of a person be caused by the wrongful act of another under such circumstances that if death had not ensued such person could have recovered of such other damages for his injury, such other shall be liable to an action for damages notwithstanding the death, such action to be brought and prosecuted in the name of the personal representative of the deceased person for the benefit of the husband or widow of such person if there be such surviving, otherwise for the benefit of such person's lineal descendants, or, in default of such descendants, such person's lineal ancestors. We are asked to hold that by such statutes the right of action for the wrongful death of a person is conditional only upon the circumstances being such that if death had not ensued the decedent could have proceeded against the wrongdoer for damages. If the statute were susceptible of that construction, in any reasonable view of the language used, and we think it is not, the contrary view has been too long established as its true meaning to leave the matter open to question at this time. In Woodward v. C. & N. W. R. Co. 23 Wis. 400, decided thirty years ago, it was held that unless a person named in the statute as entitled to the benefit of a recovery when obtained be shown to be in being by the allegations of the complaint, the calls of the statute are not satisfied and the action for damages for the death cannot be sustained. That is in line with the numerous decisions in this country and England where similar statutes exist, as abun Brown vs. The Chicago & Northwestern R. Co. dantly appears in the opinion of the learned chief justice in the case cited, and the numerous authorities cited there by counsel. It has never been since questioned successfully in this court, but on the contrary has been repeatedly affirmed. Topping v. St. Lawrence, 86 Wis. 526; Regan v. C., M. & St. P. R. Co. 51 Wis. 599; Gores v. Graff, 77 Wis. 174; Schmidt v. Menasha W. W. Co. 99 Wis. 300. The reasonableness of that construction is fully realized when one considers, as the fact is, that the action for a death loss to a surviving relative is not a right by survivorship to the claim which existed in favor of the injured person in his lifetime. If that right of action exist at all, it is for the benefit of the estate under the statute, to be hereafter considered under the second point made by appellant. The death loss act of the English statute (9 & 10 Vict. 93), commonly called "Lord Campbell's Act," and the various laws of a similar kind that have been modeled after it, gave a new cause of action unknown to the common law, for the benefit of certain designated classes of surviving relatives. Such relatives do not take the cause of action for damages to the deceased by transfer to them by operation of law, or otherwise, but are enabled by statute to recover the pecuniary loss to themselves caused by the wrongful taking off of the decedent, the continuation of whose life would have been beneficial to them. As was said by Mr. Justice ORTON in Topping v. St. Lawrence, 86 Wis. 526, the action accrues to the surviving beneficiary mentioned in the statute by reason of the death of the injured person caused by the wrongful act of another. It is strictly not proper to say that it is a cause of action which survives; it is rather a new action by secs. 4255 and 4256, which can be brought, not for the benefit of the estate, but solely for the benefit of the beneficiaries named in the statute. Counsel's contention is that the liability is made absolute by sec. 4255, and therefore is not limited by the following Brown vs. The Chicago & Northwestern R. Co. section which designates who shall be the beneficiaries. As before indicated, that question has long been foreclosed in this court, contrary to counsel's contention; nevertheless, if the question were now presented for the first time, in view of the fact that the section giving the right is coupled with the section for its enforcement, it would appear to be a very plain proposition that such remedy is exclusive and necessarily limits the right to those for whose benefit it may be enforced, i. e. to the particular beneficiaries named and in their order, that is, husband or widow, if there be such, otherwise lineal descendants, and, in default of such, lineal ancestors. On the question of whether a cause of action for injury to the person survive to his personal representative in case death. ensue therefrom, this court held in the affirmative in Lehmann v. Farwell, 95 Wis. 185, construing what is now sec. 4253, Stats. 1898, which provides generally that actions for the recovery of damages to the person shall survive. The subject there received most careful consideration, and no reason is perceived now for changing the ruling there made. The learned counsel for respondent contend, with much learning, that the section last referred to, and secs. 4255 and 4256 of the statutes, giving a right of action to relatives in certain circumstances specified, should be construed together, so as to limit actions that survive under sec. 4253 to cases where death does not ensue from the injury. That claim has the merit of being supported by decisions elsewhere under similar laws, but, looking only to the language of the statutes, no good reason is perceived for resorting to construction at all to determine their meaning. The language seems too plain to allow that. We have not even good reason for saying, as some courts have, that the statutes were enacted at the same time, or went into effect at the same time, and it is therefore unreasonable to hold that the legislature intended to give two rights of action at the same time. |