106 Wis. 577 | Wis. | 1900
Lead Opinion
The sole question arising upon this appeal is whether the notice put in evidence was sufficient under sec. 1339, R. S. 1878. .That section provides that, if dam
Plaintiff’s right of action was a creature of the statute; hence the legislature has the right to annex such conditions to its enforcement as they might think proper. Daniels v. Racine, 98 Wis. 649. These conditions are: (1) Notice in writing; (2) it shall be signed by the party, his agent or attorney, and shall be given the mayor or city clerk; (3) the place of the accident shall be stated; (4) the insufficiency complained of shall be described; (5) it shall state that satisfaction for such injury is claimed. Admitting the right of the legislature to prescribe these conditions, the courts .have no right to dispense with their performance. They are in the nature of conditions precedent to the right of the injured party to maintain an action.
Testing the notice in question by the requirements of the statute, we find it wanting in several important particulars. It is not, and does not purport in any respect to be, a notice for or in behalf of the plaintiff. Neither the plaintiff nor ■his alleged cause of action is even remotely. referred to therein. So far as can be ascertained therefrom, it is a notice given by a stranger of a claim in her own right, and for Avhich she was claiming satisfaction. By no possible stretch *)f judicial’construction are we able to say from this notice
We regret to say, however, that there are one or two decisions of this court which give countenance to the result arrived at by the court below. It was in the endeavor to follow in the line of these cases that the trial court was led into error. The first of these cases is Parish v. Eden, 62 Wis. 272. The action was by the father, as administrator’, to recover, for the benefit of himself and wife, for injuries resulting in the death of their minor son. The notice given by the father was in full compliance with the statute, except that the mother did not join therein. It was held that, as the damages went to the father and mother jointly, a notice given by either the administrator or one of the joint beneficiaries was sufficient under the statute. The ease did not attempt to establish a rule applicable to a case where the same accident caused injuries in which the damages, as
By the Court.— The judgment of the circuit courtis reversed, and the cause is remanded for a new trial.
Concurrence Opinion
I concur in the reversal of the judgment in this case. Under our statute the right of action in favor of the plaintiff’s wife was separate from the cause of action in favor of the plaintiff. Shanahan v. Madison, 57 Wis. 276; McLimans v. Lancaster, 63 Wis. 599, 600. That being so, the plaintiff, as well as his wife, was required to serve the requisite notice in order to preserve his right of action. But, to my mind, it does not follow that Parish v. Eden, 62
In the Reed Case the little girl who was injured was less than eight years of age, and, of course, incapable of serving the notice. A month after she was injured her father commenced an action against the city to recover damages for the care and expenses on account of her injury and sickness and for the loss of her services. In that action the complaint alleged all the facts in respect to the defect in the sidewalk and all the facts in respect to her injury which would have been essential to her recovery. This court held that the complaint in that action by the father and natural guardian of the child was sufficient notice to the city to preserve the right of action in the child. As the only objects of the statute requiring such notice were to enable the city to investigate the facts in respect to the alleged defect in the sidewalk, and also to enable the city to settle for and compromise the damages for the injury, such objects wTere satisfied by the service of such complaint by the little girl’s natural guardian. To have held otherwise, it seemed to the court as then constituted, would be the giving of more importance to form than to substance. Such construction of the statute has existed unchallenged for many years, and, presumably, has during that time been acted upon throughout the state. Assuming that such construction was strained and a departure from the strict letter of the statute, still,