Cantwell v. City of Appleton

• Decision Date: 17 April 1888
• Parties: CANTWELL v. CITY OF APPLETON.
• Court: Wisconsin Supreme Court

71 Wis. 463

37 N.W. 813

CANTWELL

v.CITY OF APPLETON.

Supreme Court of Wisconsin.

April 17, 1888.

Appeal from circuit court, Outagamie county; GEORGE H. MYERS, Judge.

During the forenoon of June 18, 1885, as the plaintiff was walking east on the north side of College avenue, which is one of the principal streets in the defendant city, she fell into an excavation extending across the sidewalk, and was injured. On the 20th of the same month, she filed with the city clerk a notice of such injury, specifying the place where it occurred, and the nature of the defect in the sidewalk which occasioned it. On July 22, 1885, she also filed in the office of such city clerk a claim for $2,000 damages for such injuries. This claim contained all the essential requisites of a complaint in an action to recover such damages. On the same day the common council referred such claim to a committee. After the expiration of 60 days from the presentation of such claim, the council having failed to take any further action thereon, the plaintiff duly appealed to the circuit court pursuant to the provisions of the city charter. Laws 1876, c. 47, subc. 5, §§ 25-27. The cause being called for trial in the circuit court, a motion was made on behalf of the defendant that the plaintiff be ordered to file and serve a complaint in the action. This motion was denied, and the cause was tried without further pleadings. It appeared on the trial that the excavation was made by the Appleton Water-Works Company, on the morning of the day on which the plaintiff was injured, for the purpose of making connections in a store abutting the sidewalk at the place of the injury. It was about two and one-half feet wide, and six feet deep, and extended across the walk, which was about twelve feet in width. The water-works company had authority, under an ordinance of the city, to make the excavation for that purpose. No barrier was placed on either side of the excavation to prevent persons passing along the walk from falling into it. An objection to the admission of any evidence under the complaint was overruled, and a motion for a nonsuit denied. No exceptions were taken to the instructions given by the court to the jury, and no instructions were proposed on behalf of the defendant. The jury found for the plaintiff, and assessed her damages at $600. A motion for a new trial was denied, and judgment entered pursuant to the verdict. The defendant city appeals from the judgment.Samuel Boyd, for appellant.

Leopold Hammel, for respondent.

LYON, J., ( after stating the facts as above.)

1. The refusal of the court to order the plaintiff to file a formal complaint is assigned for error. The court might have done so in its discretion; but we are aware of no rule of law which requires, in a case like this, that formal pleadings shall be interposed. The claim for damages filed with the city clerk contains all the essential elements of a good complaint. It alleges the corporate character of the defendant city, gives the location of the excavation and its dimensions, sufficiently describes the injuries the plaintiff received, charges the city with negligence in respect to the excavation, and alleges the giving of the notice of the injury required by law. Had a complaint been ordered to be filed, it would have been but a mere repetition of the contents of such claim for damages. Hence, further pleadings on behalf of the plaintiff were entirely unnecessary. The papers returned by the city clerk on the appeal to the circuit court gave the defendant all necessary information of the nature and amount of plaintiff's claim. We think the alleged error is not...