Whiton v. Chicago & North-Western Railway Co.

21 Wis. 305

• Court: Wisconsin Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinion

Dixon, C. J.

The action is purely statutory, and the statute requires it to be brought in the name of the personal representative of the deceased. “ Every such action shall be brought by and in the name of the personal representative of such deceased person.” R. S., ch. 135, sec. 13. This is decisive of the objection that there is a defect of parties plaintiff; or that the action should have been brought in the name of Henry K. Whiton as the real party in interest.

Whatever doubts may arise upon the construction of section 12, as to a right of action being given in case of the death of married women, such doubts are wholly removed by section 13, the terms of which are very clear and strong. “ The amount recovered shall belong and be paid over to the husband or widow of such deceased person, if such relative survive him or her.” Why provide that the amount recovered shall belong and be paid over to the husband of the deceased person, if there can be no recovery for causing the death of the wife ? The intention of the legislature to give a right of action in such case, could hardly have been more clearly manifested ; and such intention is not to be defeated because it was not expressed with strict legal accuracy in the enacting clause of the preceding section. The last section may rather be said to have cured the defect, and removed the uncertainty growing out of the first. To this view the cases in New York under the same-same statute, though not directly in point, add very considerable weight. This disposes of the third and, with it, the first ground of demurrer, which is substantially the same, and shows that instead of being sustained, the demurrer ought to have been overruled.

By the Court — Order reversed, and cause remanded for further proceedings according to law.