Uhlenberg v. Milwaukee Gas Light Co.

138 Wis. 148 | Wis. | 1909

Barnes, J.

The material part of subd. 5, see. 4222, Stats. (1898), in so far as it affects the question before the court,, provides that:

“No action to recover damages for an injury to the person shall be maintained unless, within one year 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.”

The statute further provides that the notice shall not be' deemed insufficient solely because of any inaccuracy or failure in stating (1) the description of the injuries and (2) the manner in which they were received, or the grounds on which claim is made, provided there was no intention to mislead and the party was not in fact misled thereby.

It will be seen that the statute requires that the notice must be served upon the person or corporation by whom it is claimed, such damage was caused and that it must state that “satisfaction thereof is claimed of such person or corporation.” The notice here served recited that the city of Milwaukee caused the damage and likewise stated that satisfaction therefor was claimed from said city. Manifestly, if effect is to be given to the plain provisions of the statute, the notice was insufficient to fix liability upon the defendant. It not only fails to claim satisfaction from the defendant, but negatives the idea that damages are claimed from it by assertr ing that damages are claimed from another corporation. Neither is the notice addressed to the defendant, but to the city of Milwaukee. The statute declares that error or inaccuracy in stating certain things required to be stated in the notice shall not render it insufficient if there was no intention to mislead and the party from whom damages are claimed is not in fact misled. Such provision, however, does not extend to the requirement that the notice must be served upon the party from whom damages are claimed and must state that satisfaction for such damages is claimed of such party. The fact that the statute has provided that certain requirements thereof are not essential to the validity of the notice, where no one is misled and there was no intent to mislead, would indicate that its' other provisions must be substantially complied with.

In Smith v. C., M. & St. P. R. Co. 124 Wis. 121, 123, 102 N. W. 336, this court said that, when the language of a provision of this statute relating to the manner of serving the notice was plain and unambiguous, “such provision is imperative and not permissive.” Again, in Hoffmann v. Milwaukee E. R. & L. Co. 127 Wis. 76, 82, 106 N. W. 808, it was contended that the notice need not be given within one year in the case of a minor. The court rejected the exception sought to be interpolated into the statute, saying:

“The statute in question is clear and unambiguous, and,, if its words be given their plain, obvious, and ordinary meaning, there can be no room for doubt that the legislature in'tended the statute requiring notice to be served within one year after the happening of the event causing the damage should apply to all persons. To give it any other construetion would be to disregard the plain meaning of the statute.”

It is manifest here that a plain and unambiguous provision of this statute has not been complied with. To hold the notice sufficient it would be necessary to eliminate a portion of the law by judicial construction. This court is not concerned with the merits or demerits, or the wisdom or lade of wisdom, in this law. If it is wrong the legislature should repeal it. It is not permissible for the courts to do so by a construction wholly at varianefe with the obvious meaning of the words used in the act. ■.>

The complaint in the action against the city of Milwaukee is not helpful as a notice, inasmuch as it is subject to the same infirmity as is the notice served on the city. The tender of defense made by the city attorney of the city of Milwaukee was not made by the plaintiff or by his agent or attorney, as required by said subd. 5 of sec. 4222, and in any event is barren of essential recitals necessary to constitute notice under the statute.

By the Court. — The order appealed from is affirmed.