*1 prejudicial In view of the error utterances in trial, together inadequate course of with the award damages, negligence findings part appear to support record, be without we conclude that except new trial should be ordered on all issues as Zwieg. By Judgment dismissing as Court. — Zwieg judgment defendant affirmed. The in re- spect to all other issues is reversed and the cause re- manded to the circuit court for a new trial. Respondent, Miller, Appellant.

Wurtzler, v.

May 7, 1966. 11 June

315 Bell, appellant by Aberg, For the brief there was a Bloch, Madison, Blake & Metzner and Gerald J. all of and argument by oral Bloch. Mr. respondent by

For the B. there a brief Maurice was Harry Sauthoff, Jr., Madison, Pasch of both and oral argument by Mr. Sauthoff. purpose appeal J. For the of will this we

Hallows, deciding original plaintiff’s assume without that com- plaint, three-year period which was served within the permitted by 330.205, Stats., commencing for the see. action, was defective the because of failure to either allege: (1) dog That defendant’s was mischievous or vicious, (2) specific or part acts of of on the respect dog.2 the keeping defendant with of his assumption, Based on principal presented this the issue by appeal this is whether this statute of limitations bars plaintiff’s cause action because his was not good amended so toas state a cause action until after the statute had run.

We conclude that the statute of limitations not does plaintiff’s bar cause of action. sustaining defendant first contends the de- original to

murrer determined it stated no cause of action and hence the amendment made after expiration period nothing of limitations had to by refer back to and stood alone and barred the statute. sustaining do not think the We of a demurrer or has given be respect should such effect in to amendments argument limitations. This identical made rejected the defendant was advanced and in Fredrick- 2 Concerning point Legault (1), (1914), see v. Malacker 156 Wis. 1081, complaint alleges dog 145 N. W. which holds that if person might lawfully attacked who was where he he and in the ordinary care, unnecessary allege dog exercise it is was vicious or mischievous. (1953), (2d) In

son v. Kabat 59 N. 484. Wis. W. *6 damages plaintiff that case the sued to recover for assault battery. interposed a ore The defendant demurrer tenus. The the demurrer the trial court sustained on basis complaint that the a of did not state cause action and plaintiff complaint. allowed the to amend his complaint in amended was served and the defendants two-year their the answer thereto raised statute of limita (sec. (2)) tions for 330.21 in assault actions which had original complaint. tervened between the and the amended complaint alleged The trial court held the amended original complaint same of action cause as the so that the appeal, statute of limitations did not bar the action. On complaint this court that the concluded amended did not spite state a new in cause action of the fact the de original complaint. murrer sustained was to the argument Under plaintiff the defendant’s unless the pleads good prior expiration a cause of action to the complaint of limitations the cannot be amended; ifor pleaded defective cause of action is may only by voluntary be corrected prop- amendment to erly state the cause of action before a demurrer is sustained. think We this view an is unreasonable inter- pretation of sustaining the effect of a demurrer and of the statement of a purposes cause of action for the of the statute of limitations.

Where is served statutory within the period but fails to state a cause of action because of an supplied by omission which is an amendment made after expiration statutory period, such plaintiff’s cause of action by is not barred the statute. This court so held Chicago in Curtice v. (1916), & N. W. R. Co. 162 Wis. 421, 156 N. W. where it was stated: “The upon cause of action plaintiff sought which the damages to recover defectively original was in stated complaint and the were defects cured the amendment. But one cause of action was stated. The amendment re- original complaint lated back part and became it, hence the statute limitations was no defense.” The test of when an amendment to the made permissible Bar-Mour, is v. stated Johnson Inc. was (1965), (2d) 271, 133 (2d) 27 Wis. N. There the W. 748. court, quoting from Meinshausen v. A. Gettelman Brew ing (1907), Co. 95, 102, 133 Wis. 113 N. that W. said an amendment: up “. . . claim, which sets no of action new cause or demand, simply expands makes no new but or varies allegations support already

the propounded, of the cause of action relates back to the commencement of the action, so running against and the the claim statute pleaded point. at arrested But an amendment *7 action, which a introduces new or different cause of a demand, makes new or different does not relate back beginning to the action, running of stop the to the so as statute, of the equivalent upon but is the of a fresh suit action, a new cause of and the statute continues to run filed; until the applies amendment is and this rule al- though the two causes of action arise out of the same transaction, and, by practice state, the plaintiff of the only required pleading is in his state facts which 4 constitute his cause of action.” principle by

Under enunciated sentence second above-quoted extract, of the defendant contends that the purported second cause of action of the amended com- plaint by is barred the statute of limitations. This is grounded misinterpretation on a our Nelson decision (1960), v. Hansen (2d) 107, 10 (2d) 251, Wis. 102 N. W. grounded that an action 174.02, Stats., sep- on sec. ais apart arate alleging negligence cause of action from one 3 page Dairyland Id. 424. Also see Perlson v. Ins. Mut. Co. (1964), (2d) 391, 398, Jur., (2d) 69; 23 Wis. 127 N. W. 34 Am. p. Actions, 263; S., Limitation of sec. 54 C. J. Limitations Actions, p. 328, sec. 280. 4 Bar-Mour, Inc., supra, page Johnson v. at This is in ac 273. general rule, S., Actions, cord with the see 54 J. Limitations of C. p. 320, 279; Jur., p. see. Actions, 34 Am. Limitation of sec. 260.

against dog plaintiff. the owner of a who has bitten We thought we had made it clear in the Nelson Case that a grounded negli- cause of action on is sec. 174.02 one gence, subject comparative-negligence to the is stat- contributory negligence ute where the defense plaintiff grounded is established.6 Where the action is on negligence dog sec. 174.02 the of the defendant owner is proved kept established when it is he or mischievous dog proving vicious dog without that he knew the had propensities. such On the other hand can be independently 174.02, established example, by of sec. for proving keep dog failure to on a leash or confined to pen required when ordinance to Therefore, do so. plaintiff’s complaint amended but one states cause of although action purports to state two.

By the Court. —Order affirmed. (concurring). Appellant C. J. defendant’s

CURRIE, principal contention is that the circuit court’s order sus- taining the original demurrer complaint served three-year within the period limitation constitutes the law conclusively case and establishes that such com- plaint failed to state a cause of action. hypoth- From this argues esis he that such a defective equivalent of no and therefore cannot be running amended after the the limitation so as to state a cause of fallacy action. argument of this *8 5 331.045,- Sec. Stats. 6 The opinion sentence in the probably Nelson which caused the misinterpretation appears page at reads, 120 and “Because this court has committed itself to contributory the rule negligence that in the ordinary sense of lack of care a liability is bar to the of the dog owner of a in an 174.02, action Stats., under sec. such contribu tory negligence subject application should be to the of the com parative-negligence statute when the of the owner is proven.” speaking In contributory so negligence as a bar we referring were holdings prior to our adoption of sec. 331.045 in 1931. erroneously prevent is that that assumes order to running good complaint of the a statute of limitations statutory period. must be within the served , question of when an action is commenced as so running to arrest of the statute of limitations is usually dependent express upon statutory provisions.1 many jurisdictions Wisconsin is one of the which has specified by statute how an action tois be commenced running so as to arrest of the statute limitations by enacting 330.39, Stats., provides: sec. which

“Action, when commenced. An action shall be deemed commenced, meaning any provision within the of law which action, limits the time for the commencement of an defendant, as to each when the is on him summons served joint or on a codefendant who a contractor or otherwise united in interest with him.” an meaning

Thus action is commenced within the (Limitations ch. Actions), Stats. service of a complaint. Accordingly plaintiff summons without a a who serves defective within the limitation period, permitted but which he is to amend after the run- ning period good of such action, so as to state a cause of position should be in no only worse than if he had served period a summons within such and thereafter serves complaint which does state cause of action.

A running is first served after limitation relates back to the summons that was period. served within the It thus establishes once and all for the nature of the cause of action for which the served, summons was and cannot thereafter be amended so as state a different cause of action.

I am authorized to state joins that Mr. Justice Beilfuss concurring opinion. this Jur., Actions, p. 34 Am. Limitation of sec. 254. See also (2d), Actions, p. 615, 1 Am. Jur. see. 86.