Arp v. Allis Chalmers Co.

• Decision Date: 29 January 1907
• Citation: 130 Wis. 454,110 N.W. 386
• Parties: ARP v. ALLIS CHALMERS CO.
• Court: Wisconsin Supreme Court

130 Wis. 454

110 N.W. 386

ARP

v.ALLIS CHALMERS CO.

Supreme Court of Wisconsin.

Jan. 29. 1907.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Action by Sherman H. Arp against the Allis Chalmers Company. From a judgment for defendant, plaintiff appeals. Affirmed.Robert N. McMynn and C. H. Van Alstine (Darrow, Masters & Wilson, of counsel), for appellant.

Vilas, Vilas & Freeman, for respondent.

WINSLOW, J.

This action was commenced August 10, 1904, and was brought by the plaintiff to recover damages for personal injuries suffered by the plaintiff while in the employ of the defendant as the result of an accident which happened at the defendant's shop in the city of Chicago, March 31, 1903. The defendant is a foreign corporation operating a manufacturing plant in Wisconsin, and on the 17th of September, 1901, had duly filed with the Secretary of State an instrument appointing a resident attorney in this state as required by section 4231, Rev. St. Wis. 1898. The defendant by answer pleaded as a defense that part of subdivision 5 of section 4222, Rev. St. Wis. 1898, which provides that no action to recover damages for personal injuries shall be maintained unless a written notice thereof containing certain prescribed statements shall be served on the person responsibile for the injury within one year after the happening of the event. It was admitted on trial that no notice as required by said subdivision had been served, a verdict for the defendant was directed, and, from judgment thereon, the plaintiff appeals.

The controlling question presented is whether that part of section 4222 above referred to applies to a cause of action arising in another state when a resident of that state brings suit thereon against a resident of Wisconsin in a Wisconsin court. A few well-established principles seem to answer this question in the affirmative. The clause in question is a statute of limitations. Relyea v. Tomahawk P. & P. Co., 102 Wis. 301, 78 N. W. 412, 72 Am. St. Rep. 878;O'Donnell v. New London, 113 Wis. 292, 89 N. W. 511;Meisenheimer v. Kellogg, 106 Wis. 30, 81 N. W. 1033;Lawton v. Waite, 103 Wis. 244, 79 N. W. 321, 45 L. R. A. 616;Gatzow v. Buening, 106 Wis. 1, 81 N. W. 1003, 49 L. R. A. 475, 80 Am. St. Rep. 1. True, its operation is somewhat different from the operation of other statutes of limitations in that it acts upon the time within which a preliminary notice shall be served instead of the time within which the summons shall be served, but it is none the less a limitation upon the right to maintain the action. Troschansky v. M. E. R. & L. Co., 110 Wis. 570, 86 N. W. 156. It is the long-settled doctrine of this court that, when a statute of limitations has completely operated it extinguishes the right of action by taking away the remedy. Eingartner v. Illinois Steel Co., 103 Wis. 373, 79 N. W. 433, 74 Am. St. Rep. 871. In the absence of any saving clause our statutes of limitation operate against...