Amos v. City of Fond du Lac

• Decision Date: 24 May 1879
• Citation: 1 N.W. 346,46 Wis. 695
• Parties: AMOS and wife v. THE CITY OF FOND DU LAC
• Court: Wisconsin Supreme Court

1 N.W. 346

46 Wis. 695

AMOS and wife v. THE CITY OF FOND DU LAC

Supreme Court of Wisconsin

May 24, 1879

APPEAL from the Circuit Court for Fond du Lac County.

The plaintiffs are husband and wife, and brought this action to recover damages for an injury to the plaintiff wife, alleged in the complaint to have been caused by a defective sidewalk in a public street of the defendant city, in front of and adjoining lot 22 in a certain block therein. The nature of the defect in the sidewalk, the manner in which the injury was inflicted, and the special damages suffered thereby, are particularly stated in the complaint. It is also alleged therein, that the sidewalk had been in such defective condition for more than six months before the injury; that the city carelessly and negligently suffered it to remain so and that Mrs. Amos, when injured, was passing carefully along such sidewalk. The complaint also contains the following averments:

"And the plaintiffs further show, that at the several times hereinbefore stated, and from the twentieth day of May, 1876 up to the present time, one Phila. C. Moore was owner in fee of said lot 22 above described, fronting and adjacent to said portion of said sidewalk, so insufficient, defective and in want of repair as aforesaid, and that, before the commencement of this action, and on or before the twelfth day of January, 1878, the above named plaintiffs made and issued a summons for relief in the usual form, for said injuries and to recover damages therefor, in the circuit court of Fond du Lac county, wherein the above named Thomas Amos and Fidelia Amos were plaintiffs, and said Phila. C. Moore was defendant, and caused said summons to be placed in the hands of the sheriff of Fond du Lac county for service on said Moore; and that on or about the 29th of January, 1878, the said sheriff made return to and upon said summons, that after careful and diligent search, the said Phila. C. Moore could not be found within the state of Wisconsin, that no place of abode of said Moore within the state of Wisconsin could be found by him, and no member of the family could be found by him at the last and usual place of abode of said Moore in said state. And the plaintiffs further show that at the several times hereinbefore stated, and from on or about the twentieth day of May, 1876, up to the present time, the said Phila. C. Moore was not a resident of the state of Wisconsin, but was during all that time, and still is, a resident of the state of Massachusetts, and beyond the jurisdiction of this court. Wherefore the plaintiffs demand judgment against the defendant for five thousand dollars, besides the costs and disbursements of this action."

The defendant demurred to the complaint, on the grounds that it did not state a cause of action, and that there was a defect of parties defendant. The last ground was not pressed in the argument of the appeal, and is not noticed by the court. The demurrer was overruled, and the defendant appealed.

Order affirmed and cause remanded.

For the appellant, there was a brief by F. F. Duffy, and oral argument by Edward P. Vilas. They contended that sec. 1, ch. 14 of the defendant's charter, as amended by ch. 102 of 1876, relieved the defendant from liability for the injury to plaintiff until all legal remedies should be exhausted to collect the damages from Moore, the owner of the lot; and that, the cause of action sounding in tort, and the defendant not being found within this state, but having property here, plaintiff should haave proceeded by publication of summons, and attachment, under ch. 29, Laws of 1868. The complaint cuts off even the inference that the lot in question may have been exempted as a homestead or otherwise, by alleging Moore's actual and long-continued nonresidence. It alleges the defect in the sidewalk to have been patent for six months before the accident, and thus charges the owner with notice. It cannot be contended that his mere nonresidence excused his neglect of duty in the premises, or relieved him from liability.

For the respondents, there were briefs by Gilson & Ware, and oral argument by Mr. Gilson. They contended, 1. That the complaint did not bring the case within the prohibition intended by sec. 1, ch. 14 of the city charter as amended in 1876. (1) The defective condition of the sidewalk is not alleged to have been caused by the wrong, default or negligence of the lot-owner, but by the negligence of the defendant. (2) "Due notice" to the lot-owner is not alleged. If such notice relates to the defective condition of the walk, the averments that such condition had existed for six months before the injury, and that the owner had been absent from the state over a year, repel the presumption of knowledge on his part. But the due notice required is that which the street commissioners must give the lot-owner to rebuild or repair the sidewalk within a certain time, or that the same will be done by the city and charged to the lot. (3) While the latter part of the section, following the common law, makes the owner or occupant of the lot liable over to the city for damages resulting from his neglect to repair after due notice, the former part of the section does not enjoin upon lot-owners the duty of keeping in repair their sidewalks, but only their premises. (4) Even if the lot-owner were shown to be liable, yet, to authorize an attachment under ch. 29 of 1868, there must be shown a "wrongful act sounding in tort committed by defendant or his agent," and not a mere passive neglect to repair a sidewalk which had decayed from lapse of time. Pa. Railroad Co. v. Sinclair, 8 Cent. L. J., 237-8, and cases there cited. Moreover, it does not appear that the lot, which may have been a homestead, was subject to attachment. 2. That the provision of the charter relied upon by defendant, if construed as relieving the city from primary liability for its omission to keep the sidewalks in repair, was invalid. The general liability of cities for injuries arising from defective highways within them, has long been settled in this state. Cuthbert v. Appleton, 22 Wis. 642; Benedict v. Fond du Lac, 44 id., 495. The legislature has no power to exempt one particular corporation from the operation of this general law. Durkee v. Janesville, 28 Wis. 464; State v. Bartlett, 35 id., 287; Rooney v. Supervisors, 40 id., 23; Kimball v. Rosendale, 42 id., 407. The city being liable, upon general principles of law, for injuries arising from neglect of its corporate duty, any statute which clogs or embarrasses the remedy, so as to make it unavailing or worthless, violates sec. 9, art. I of the constitution. Oatman v. Bond, 15 Wis. 20.

OPINION

WILLIAM P. LYON, J.

The charter of the city of Fond du Lac contains the following sections, both of which were in force when the alleged cause of action arose, and when the action was commenced:

"Section 11. Nothing in the preceding sections contained shall be so construed as to relieve the owners or occupants of any real estate from the duty of keeping their respective premises at all times in a safe condition, and in a good and thorough state of repair; but such duty is hereby expressly enjoined and imposed upon all such owners and occupants; and if at any time injury shall be sustained by any individual, or the city shall be subjected to any damages, in consequence of the neglect of any such owner or occupant to repair or keep such sidewalk in a safe condition after due...