51 Wis. 393 | Wis. | 1881
This is an action to recover damages for personal injury occasioned by a defective sidewalk. The injury happened October 20, 1878, and the action was commenced about the 28th of December following. Section 1339, R. S., provides that “ no such action shall be maintained . . . unless, within ninety days after the happening of the event causing such damage, notice in writing, signed by the party, his agent or attorney, shall be given to . . . or mayor or city clerk of the city against which damages are claimed, stating the place where such damage occurred, and describing generally the insufficiency or want of repair which occasioned it, and that satisfaction therefor is claimed of 'such . . . city.” The Revised Statutes, containing this new provision in relation to suits against cities for such cause, were approved June 7, and took effect November 1, 1878; so that, in respect to this injury, there were eighty days of the ninety mentioned in the statute, after the injury, in which such notice could have been given. There was no proof that such notice was given in this case, and this was one of the grounds of a motion for a nonsuit after the plaintiffs had concluded their evidence. This motion was overruled, and the defendant excepted, and the learned circuit judge finally instructed the jury that no such notice was required to be given, holding that this provision of the statute was not applicable to cases of such injury happening before the statute took effect.
This question being the most important of any presented in the record, and, as we shall decide it, probably fatal to the action itself, we shall consider no other. The language of the statute, requiring such notice “ within ninety days after the happening of the event,” is peculiar. It does not require notice to be given for any length of time, but that it shall be given
Many statutes far more questionable in their application to past or pending remedial proceedings, and which have imposed new conditions upon the remedy, such as requiring notice to be given or some other things to be done, when there is reasonable time or opportunity for the substantial performance of such conditions, within their spirit and intent, after they have taken effect, have been upheld by this court, as in Parker v. Kane, 4 Wis., 1; State ex rel. Knox v. Hundhausen, 24 Wis., 196; Curtis v. Morrow, id., 664; and in numerous other cases.
The learned counsel of the respondent insists that the language in some parts of this section makes this particular provision apply only to cases of future injury. The section begins, “ If any damage shall happen,” and further on, “ If such damages shall happen,” and in the clause requiring such notice to be given, “ such damage.” This form of the future tense of the verb is very common in statutes which clearly relate to the past as well as the future, and has no particular significance in determining their effect as future or retroactive. By the statute rule of construction, the words “ shall have been” include past and future .cases (section 4972, R. S.); and in Klaus v. City of Green Bay, 34 Wis., 628, it was argued by counsel that the words “ who shall have done work ” jdainly referred to the future and not to the past, and the present chief justice said, in his opinion: “But there is nothing in the language, when considered with reference to the object of the law, which requires that they should have this restricted application. This and similar language is frequently
By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial therein.