Bode v. Flynn

• Decision Date: 09 January 1934
• Parties: BODE v. FLYNN ET AL.
• Court: Wisconsin Supreme Court

213 Wis. 509

252 N.W. 284

BODE

v.FLYNN ET AL.

Supreme Court of Wisconsin.

Jan. 9, 1934.

Appeal from a judgment of the Circuit Court for Kenosha County; S. E. Smalley, Circuit Judge.

Action by Mathias N. Bode against Thomas F. Flynn and others. From a judgment for plaintiff for property damage, defendants appeal, and plaintiff moves to review court's ruling denying recovery for personal injuries.--[By Editorial Staff.]

Affirmed.

The action, commenced May 28, 1932, is to recover for injuries to person and property sustained in a collision in this state of plaintiff's automobile with an automobile of nonresident defendants. From a judgment entered March 17, 1933, against the defendants for property damage, the defendants appeal. The plaintiff moves to review the ruling of the court denying recovery for personal injuries. The facts material to the issues raised on the appeal are stated in the opinion.Coleman & Barry, of Milwaukee (James E. Coleman and Donald H. Haider, both of Milwaukee, of counsel), for appellants.

Joseph L. Gottschlich, of Kenosha (Harold Bode, of Kenosha, of counsel), for respondent.

FOWLER, Justice.

The case involves recovery for injuries to person and property sustained in a collision in Wisconsin between an automobile of nonresidents and the automobile of the plaintiff who is a resident of the state, which occurred on November 1, 1925. The action was not begun until May 28, 1932, when a summons and complaint were filed in the office of the secretary of state pursuant to section 85.05 (3), Stats. The only point raised by the appellants is whether the six-year statute of limitation had run prior to the commencement of the action. The respondent by motion to review asks reversal of the ruling of the trial court that the action to recover for personal injuries is barred for failure to serve a notice of injury within two years, as required by section 330.19 (5), Stats.

The appellants claim that section 85.05 (3), Stats., which makes the secretary of state the attorney of a nonresident upon whom summons and complaint may be served in an action growing out of his use of an automobile on the highways of the state, takes the defendants out of section 330.30, Stats., which is to the general effect that, when a person is out of the state when a cause of action accrues against him, the statute of limitation does not commence to run until he comes into or removes to the state, and leaves the limitation statute applicable in his favor. The argument is that the purpose of the limitation statute is to give the claimant six years in which to bring this suit; and the purpose of exempting the period of absence from the state is to give the claimant the full period from the time he may commence his suit; and these purposes are fully effected by the statutory provision for commencing suit by service of process upon the secretary of state. The respondent claims that the decision of this court in State v. National Accident Society of N. Y., 103 Wis. 208, 79 N. W. 220, 223, rules the point against the appellants.

The case relied on by respondent was decided in 1899. The action was brought by the state against a foreign insurance corporation after it had withdrawn from the state to recover the license fees for previous years during which it had been licensed to do business therein. When the action was begun more than six years had elapsed since the first fee involved was payable. When the cause of action for this license fee accrued, the statutes of limitation were as contained in R. S. 1878. The section of those statutes applying to actions to recover for injuries to persons and property, and the statutes applying to persons without the state when the cause of action accrued, so far as here material, except in particulars later mentioned, were the same as the present statutes. Section 4222, subd. 5, Rev. St. 1878, section 330.19 (5) Stats. 1931; section 4231, Rev. St. 1878, section 330.30, Stats. 1931. The latter statutes provide that: “If, when the cause of action shall accrue against any person he shall be out of this state, such action may be commenced within the terms herein respectively limited after such person shall return to or remove to this state.” During the period wherein the license fees sued for were payable, section 1915, subd. 2, Stats. 1898, made the insurance commissioner the attorney of foreign insurance companies licensed to do business in the state upon whom legal process might be served. The court stated that it was “not unmindful of the * * * doctrine, that when a corporation, pursuant to a statutory requirement, maintains an attorney in the state upon whom process can be served * * * it is a resident of the state for all the purposes of litigation and therefore entitled to the benefit of exemption [general limitation] statutes.” But the court held that, notwithstanding the fact that the state might have commenced an action against the insurance company by serving a summons upon the insurance commissioner at any time during the period involved, the statute of limitation did not apply in its favor, because, “by section 4231, Rev. St. [1878], it is excluded from the benefits of exemption [[[general limitation] statutes.” It was considered that the case of Travelers' Ins. Co. v. Fricke, 99 Wis. 367, 74 N. W. 372, 78 N. W. 407, 41 L. R. A. 557, determined that the statute of limitation did not apply in favor of foreign corporations, although the statute as to service upon them was as above stated. The court says that, if this were not otherwise correct, the 1897 amendment of the 1878 statute, not contained in the statute when the Travelers' Ins. Co. Case, supra, was decided, made it so. This amendment provided that the provision that actions might be brought against nonresidents “returning to or removing to” the state, within the statutory period after their return or removal, should not apply to foreign corporations maintaining a manufacturing plant in the state which had appointed a resident of the state upon whom process might be served. The argument in this respect was that the special exclusion of one class of corporations from operation of the statute indicated a legislative intent that no other class of corporations should be excluded. The same reasoning would leave nonresident natural persons within section 330.30, even if they had, as now, by virtue of section 85.05 (3), a person within the state upon whom service of summons and complaint might be made, and thus make the present action maintainable.

To construe the statute as appellants contend we must, as stated in State v. National Accident Society, supra, read into section 330.30 words that are not there. The statute says: “If when a person is out of the state when the cause of action accrues” the statute shall not run until he shall “return to or remove to” the state. The defendants, except Jensen, were out of the state when the cause of action against them accrued. They have not removed to or returned to the state since. As to Jensen, president of the defendant labor union, he was in the state when the action accrued, but he immediately left the state and has not “returned to or removed to” the state since. The Legislature could, had it seen fit, have amended the statute as it did to corporations owning manufacturing plants, etc., so as to cover all persons and all other corporations when a person representing...