176 Wis. 245 | Wis. | 1922
First cause of action.
The first count in the complaint must be regarded as an action brought to recover for personal injury under the federal Employers’ Liability Act. The complaint claims damages for personal injury under that act and alleges facts relied on to estop defendant from pleading the statute of limitations.
The section involved is as follows:
“Sec. 6. That no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued.” 8 Fed. Stats. Ann. (2d ed.) p. 1369.
This section is very brief and perfectly clear in its meaning. The act of Congress giving rights of action to employees gives to them new and important rights and imposes new liabilities upon railroad companies. It creates liabilities where none existed before and takes away defenses for
In American R. Co. v. Coronas, 230 Fed. 545, 546, it is said:
“The right granted exists only by virtue of the statute, and its scope and effect must be determined therefrom. The language of the act makes it plain that the right and correlative liability thereby established are conditional upon the bringing of the suit within two years from the day the cause of action accrued. The bringing of the action, therefore, within the specified time is a condition to the exercise of the right, and, if the condition is not complied with, the parties stand, with respect to the wrongful act, as though tjhe statute had not been enacted. The limitation relates, not merely to the remedy, but to the right.”
In another case Judge Sanborn writing the opinion said:
“A statute which in itself creates a new liability, gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, is not a statute of limitations. It is a statute of creation, and the commencement .of the action within the time it fixes is an indispensable condition of the liability and of the ° action which it permits. Such a statute is an offer of an action on condition that it be commenced within the specified time. If the offer is not accepted in the only way in which it can be accepted, by a commencement of the action within the specified time, the action and the right of action no longer exist, and the defendant is exempt from liability.” Partee v. St. L. & S. F. R. Co. 123 C. C. A. 292, 204 Fed. 970.
The decisions of this court have been in harmony with the federal decisions above cited, and in cases where it has been claimed that ordinary statutes of limitation have been tolled by verbal promises or by conduct it has been held that they cannot be avoided by showing facts that might ordinarily constitute an estoppel in pais. Williams v. J. L. Gates L. Co. 146 Wis. 55, 60, 130 N. W. 880; Boyd v. Mutual Fire Asso. 116 Wis. 155, 90 N. W. 1086, 94 N. W. 171; Pietsch v. Milbrath, 123 Wis. 647, 101 N. W. 388, 102 N. W. 342; Guile v. La Crosse G. & E. Co. 145 Wis. 157, 130 N. W. 234.
Appellant’s counsel cite Guile v. La Crosse G. & E. Co., supra, but that case declares that a person can be estopped in no other way than that prescribed by the statute, and adheres to the rule stated in the cases above cited. Appellant’s counsel also rely on O’Donnell v. State, 126 Wis. 599, 106 N. W. 18, a criminal case, but it was there held that there was no estoppel, and we do not regard the decision as one departing from the rule long ago- established in this court.
It seems clear that no error was committed by sustaining the demurrer to the first cause of action.
Second cause of action.
In this count the plaintiff claims recovery on the ground of fraud and deceit. It is claimed that his cause of action was lost by reason of the false representations of defendant. It is the theory of plaintiff’s counsel that defendant deprived plaintiff of his cause of action by fraudulent representations and thereby furnished a new cause of action, and that the measure of damages would be the value of the claim as it existed when the fraud was practiced.
It might be urged with some force that to sustain causes of action under such circumstances as here appear would
The argument is made in the brief of appellant’s counsel that when defendant’s agent “falsely and fraudulently represented that a debt or obligation existed on defendant’s part and that the same would be settled and paid without the necessity of plaintiff exercising his legal remedies, a fraud was committed for which redress will be granted.”
There is no allegation that ^ny false representation as to defendant’s obligation was made, and if there were, such an allegation would be contrarv to the other allegations of
Plaintiff’s counsel argue that the former strict rule has been so relaxed that false representations as to value and opinions may constitute fraud, citing Miranovitz v. Gee, 163 Wis. 246, 157 N. W. 790, and Ohrmundt v. Spiegelhoff, 175 Wis. 214, 184 N. W. 692. But an examination of these cases will show the peculiar circumstances under which statements of opinion as to value were held actionable and they fall far short of asserting that mere promises to perform acts in the future, although broken, may constitute fraud. Many decisions of this court declare the contrary rule. Sheldon v. Davidson, 85 Wis. 138, 55 N. W. 161; Morrison v. Koch, 32 Wis. 254; Patterson v. Wright, 64 Wis. 289, 25 N. W. 10; James M. Co. v. Bridge, 134 Wis. 510, 114 N. W. 1108; Horton v. Lee, 106 Wis. 439, 442, 82 N. W. 360; Tuffs v. Weinfeld, 88 Wis. 647, 60 N. W. 992.
The trial judge did not err in sustaining the demurrer to the second cause of action.
By the Court. — The order appealed from is affirmed.