Donner v. Graap

• Decision Date: 20 February 1908
• Citation: 134 Wis. 523,115 N.W. 125
• Parties: DONNER v. GRAAP.
• Court: Wisconsin Supreme Court

134 Wis. 523

115 N.W. 125

DONNER

v.GRAAP.

Supreme Court of Wisconsin.

Feb. 18, 1908.

Concurring Opinion Feb. 20, 1908.

Appeal from Superior Court, Lincoln County; Almon A. Helms, Judge.

Action by Margaretha Donner by Albert Donner, guardian ad litem, against Richard Graap. From an order of the superior court setting aside a verdict and judgment and granting a new trial, defendant appeals. Reversed, with directions.

This is an appeal from an order entered by the superior court of Lincoln county setting aside a directed verdict and the judgment entered thereon in favor of the defendant and granting the plaintiff a new trial. The complaint of the plaintiff, by her guardian, sets forth, among other things, that she is an infant, and that on the 19th day of June, 1904, the defendant did carelessly and negligently strike her a severe blow in the face with a large, heavy, beer glass, and thereby caused her injury. The defendant demurred to the complaint, on the ground, among others, that the action was not commenced within the time limited by law, and pleaded sections 4219 and 4222, St. 1898, and the amendments thereof. The demurrer was overruled, and the statute of limitations was set up in the answer, and the fact that no notice of the injuries had been given until more than one year had elapsed. The testimony tended to show that the infant plaintiff was injured in the manner alleged in the complaint. At the close of the plaintiff's testimony the defendant moved for nonsuit, and upon the close of the testimony moved for a verdict, stating the same grounds. The court granted the last motion upon the ground that there had been no notice given within a year, as required by law, and that the action had not been commenced and the complaint actually served within one year from the happening of the injury, and ordered the action dismissed, and judgment was entered accordingly. Thereafter, upon motion made by the plaintiff, said order dismissing the action and the judgment rendered in favor of the defendant were vacated, and a new trial granted. The defendant appeals from this order.F. J. Smith, for appellant.

John Van Hecke, for respondent.

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

The trial court in granting the order appealed from states as the reason therefor: “That the complaint is based upon a careless and negligent battery on plaintiff, and that the limitations prescribed by section 4222, St. 1898, and the provisions of subdivision 5 of said section, do not apply; that the statute of limitations fixed by section 4224, St. 1898, does apply.” An application of these statutes to the cause of action stated presents the question to be determined on this appeal. Subdivision 5 of section 4222 prescribes a six-year limitation upon actions to recover damages for an injury to the person, character, or rights of another not arising on contract, “except in case where a different period is expressly prescribed.” It provides that no action to recover damages for an injury to the person shall be maintained, unless within one year after the happening of the event causing such damages notice in writing shall be served upon the person or corporation by whom it is claimed such damage was caused, “stating the time and place where such damage occurred, a brief description of the injuries, the manner in which they were received, and the grounds upon which claim is made, and that satisfaction thereof is claimed of such person or corporation.” The amendment of 1899 (Laws 1899, p. 540, c. 307) provides that, when an action shall be brought and a complaint actually served therein within one year after the happening of the event causing such damages, the notice “herein provided for need not be served.” It is conceded in this case that no notice in writing was served as required by this section, and that the action was not commenced and the complaint actually served within one year after the happening of the event. The action was not therefore brought within the provisions of this section, and it cannot be maintained unless a different period is expressly prescribed elsewhere in the statutes.

It is urged on behalf of the respondent, and as the trial court held, that this is an action for a negligent battery, and the limitation prescribed by section 4224 applies. Subdivision 2 of that section prescribes a two-year limitation upon actions to recover damages for libel, slander, assault, battery, or false imprisonment. Is that provision to be restricted to acts which are unlawful and intentionally willful, or may it include acts committed unintentionally and through want of ordinary care? In Drinkwater v. Andrew, 126 Wis. 241, 105 N. W. 575, it was held that the provisions of subdivision 5, § 4222, were not applicable to an injury inflicted by an assault and battery; that the action was governed by the provisions of section 4224, and consequently that no notice of the injury was required. That was an action to recover damages for an assault and battery inflicted willfully and intentionally, as appears by the printed case. The question here presented as to an unintentional battery was not there considered or decided.

Respondent contends that an action for assault and battery may be maintained where the injury results from the recklessness or negligence of the defendant, or without any criminal intent--citing 11 Am. & Eng. Enc. of Law, p. 989, and Vosburg v. Putney, 80 Wis. 523, 527, 50 N. W. 403, 14 L. R. A. 226, 27 Am. St. Rep. 47. Vosburg v. Putney was an action to recover for an assault, and the court held that the act was unlawful, and that the intention to commit was necessarily unlawful. The court was there considering an unlawful assault. In the opinion it is said “that plaintiff must show that the intention was unlawful, or that the defendant is in fault.” Degenhardt v. Heller, 93 Wis. 662, 68 N. W. 411, 57 Am. St. Rep. 545, was an action to recover for an assault with a revolver; but the proof showed that the weapon was not aimed at the plaintiff, and that it was discharged with the intention of giving him a fright, but without intending to do him bodily harm. In the opinion a number of definitions of assault are given, all embodying the element of criminal intent. Among others, the following (page 664 of 93 Wis., page 412 of 68 N. W. ): “An assault is an intentional attempt, by violence, to do an injury to another.” “If there is no such intention--no present purpose to do such injury--then there is no assault.” “The intention to do harm is of the essence of an assault, and this intent is to be collected by the jury from the circumstances of the case.” “In the case of a mere assault, the quo animo is material, as without an unlawful intention there is no assault.” The court adds; “To the same effect is Vosburg v. Putney, 80 Wis. 527, 50 N. W. 403, 14 L. R. A. 226, 27 Am. St. Rep. 47.” It is clear, therefore, that the definition of assault and battery as adopted by this court implies a wrongful intent. If the common-law definition is as broad as contended for by counsel, and includes acts committed negligently and unintentionally, it would embrace a large class of cases for personal injuries. This may be illustrated by the quotation from 2 Addison on Torts, § 788, as found in respondent's brief, as follows: “Thus, if a man drives against and violently upsets the plaintiff in his carriage, and knocks him down, or overturns the chair in which he is seated, the person thus striking the plaintiff or knocking him down is guilty of an assault, although he had no intention of committing an assault.” Are all personal injury cases which involve the element of negligent battery to be excluded from section 4222 requiring notice to be given, and are they to be barred after two years under section 4224, notwithstanding such notice?

It is considered by the court that the Supreme Court of the state of Minnesota in Ott v. Great Northern Ry. Co., 70 Minn. 50, 72 N. W. 833, passed on the precise question we have here as regards...