Staszczuk v. Gilman Manufacturing Co.

159 Wis. 615 | Wis. | 1915

EeewiN, J.

It is undisputed that no notice of injury was served, unless an instrument in the nature of a release of damages operated as a sufficient notice. The following is the so-called release:

“In consideration of the payment of fifty and no/100 dollars to me in hand paid by Gilman Manufacturing Company, I do hereby release and forever discharge said Gilman Manufacturing Company from any and all actions, causes of actions, claims and demands for, upon or by reason of any damage, loss or injury, which heretofore have been or which hereafter may be sustained by me in consequence of an accident which happened to me on or about the 22d day of March, 1910, wherein I sustained injuries to both my right and left foot and various other external and internal injuries while in the employ of the said Gilman Manufacturing Co. It is also understood and agreed that I am twenty-one years of age.

“It being further agreed and understood, that the payment of said fifty and no/100 dollars is not to be construed as an admission on the part of said Gilman Manufacturing Company of any liability whatever in consequence of said accident.

“In witness whereof I have hereunto set my hand and seal this 12th day of May, 1910.

“Signed and sealed in Joseph StasczecK. (Seal.) the presence of “Anson ITeagle.

“Tony Ileagle.”

It is insisted by counsel for appellant that the foregoing contains all the elements which the statute requires, therefore was a sufficient notice. Sub. 5 of sec. 4222, Stats., provides:

“. . . No action to recover damages for an injury to the person shall be maintained unless, within two years after the happening of the event causing such damages, notice in writing, signed by the party damaged, his agent or attorney, shall be served upon the person or corporation by whom it is claimed such damage was caused, stating the time and place where such damage occurred, a brief description of the injuries, the manner in which they were received and the grounds upon which claim is made and that satisfaction thereof is claimed of such person or'corporation. Such notice shall be given in the manner required for the service of summons in courts of record. No such notice shall be deemed insufficient or invalid solely because of any inaccuracy or failure therein in stating the description of the injuries, the manner in which they were received or the grounds on which the claim is made, provided it shall appear that there was no intention on the part of the person giving the notice to mislead the other party and that such party was not in fact misled thereby; provided, that the provision herein requiring notice of two years shall not apply to any event causing damage which happened before the passage and publication of this act. When an action shall be brought and a complaint actually served within two years after the happening of the event causing such damages, the notice herein provided for need not he served.”

This section contains no exception in favor of minors. Hoffmann v. Milwaukee E. R. & L. Co. 121 Wis. 76, 106 N. W. 808. The release above set forth does not comply with the statute even if treated as a notice served,.which it was not intended -to be. It fails to state one at least of the essential requirements of the statute, namely, that the plaintiff claims satisfaction of the defendant for the injuries. It not only fails to state this material element of the notice required by the statute, but the clear implication of the release is to the effect that no claim would be made for damages. The release may be said to be some evidence of the fact that plaintiff made a claim before the release was signed, but it is also evidence of his intention that none would- be made after the execution of the release.' There is nothing whatever in the instrument of release showing that plaintiff continues to make claim against the defendant, but on the contrary any claim he had or claimed to have is released. The object of the notice is to inform defendant that a claim for damages is made and thus enable the defendant to make investigation seasonably. If an instrument which not only fails to state that claim for damages will be made but imports on its face that no claim will be made be held to comply with the statute, the purpose of the statute is defeated. Malloy v. C. & N. W. R. Co. 109 Wis. 29, 85 N. W. 130; Maurer v. Northwestern I. Co. 151 Wis. 172, 138 N. W. 636.

Counsel for appellant relies upon Odegard v. North Wis. L. Co. 130 Wis. 659, 110 N. W. 809, and Wawrzyniakowski v. Hoffman & B. M. Co. 146 Wis. 153, 131 N. W. 429. These bases do not reach the question here. They are cases where suit was commenced and complaint served before expiration of two years from the time of injury, and the statute expressly provides that in such case no notice other than the complaint is necessary. Sub. 5, sec. 4222, Stats.

Some contention is made to the effect that the defendant waived notice or is estopped from asserting that none was served. We find no warrant for such contention in the record. On this question of waiver and estoppel counsel relies upon Guile v. La Crosse G. & E. Co. 145 Wis. 157, 130 N. W. 234. The principal question in that case was whether the defendant could estop itself from invoking the bar of the statute as to giving notice under sub. 5, sec. 4222, and it was held that it could, and there was evidence that the officers of defendant told the daughter of plaintiff that it was not necessary to serve any papers, and other evidence tending to show that defendant should be estopped. There is no evidence in the present case that any act of the defendant induced the failure of service of notice and no evidence of waiver.

In our view of the case it becomes unnecessary to consider other questions discussed.

By the Court. — The judgment is affirmed.