Evans v. Michelson

• Decision Date: 10 November 1942
• Citation: Evans v. Michelson, 241 Wis. 423, 6 N.W.2d 237 (Wis. 1942)
• Parties: EVANS v. MICHELSON et al.
• Court: Wisconsin Supreme Court

241 Wis. 423

6 N.W.2d 237

EVANS

v.MICHELSON et al.

Supreme Court of Wisconsin.

Nov. 10, 1942.

Appeal from an order of the Circuit Court for Dane County; August C. Hoppmann, Judge.

Action by Ralph Evans, as administrator of estate of Winifred J. McPeak, deceased, against Howard Michelson and others, for conscious pain and suffering sustained by plaintiff's intestate as result of injuries received in automobile accident. From a judgment dismissing the action, following sustaining of defendants' demurrers to complaint and plaintiff's refusal to plead over, the plaintiff appeals.-[By Editorial Staff.]

Affirmed.

The plaintiff-appellant commenced this action against the several defendants, on September 12, 18, and 30, 1940. Plaintiff brings the action as the duly qualified and acting administrator of the estate of Winifred J. McPeak, deceased. The deceased sustained injuries in an automobile accident on the 14th day of January, 1938, resulting in her death on January 18, 1938. The action is for damages for conscious pain and suffering. The action was not brought within two years after the death of the plaintiff's intestate. A notice of injury in writing, signed by the attorneys for the plaintiff, was served upon all of the defendants on the 13th day of January, 1940, pursuant to the provisions of sec. 330.19(5), Stats. All of the defendants demurred to the complaint on the ground that it appears upon the face thereof that the action was not commenced within the time limited by sec. 330.21(3), Stats. The trial court sustained the demurrers allowing plaintiff to plead over within fifteen days, upon condition of paying $10 motion costs to each of the counsel for the defendants. Plaintiff did not plead over and judgment dismissing the action was entered on March 10, 1942. The plaintiff appeals from the order sustaining defendants' demurrers and from the judgment.

The sole question on this appeal is whether the cause of action for conscious pain and suffering is barred by the two year statute of limitations (sec. 330.21(3) because it was not commenced within two years after the death of the injured person; or whether the action is governed by sec. 330.19(5), requiring notice to be served within two years after injury.

Hill, Beckwith & Harrington, of Madison, for appellant.

Rieser & Mathys and Wilkie, Toebaas, Hart, Kraege & Jackman, all of Madison, for respondents.

MARTIN, Justice.

It is conceded that this case is ruled in respondent's favor by Staeffler v. Menasha Woodenware Co., 111 Wis. 483, 1901,87 N.W. 480, unless that case is now overruled. A brief reference to the history of the Staeffler case, supra, seems necessary. It was preceded by the case of Schmidt v. Menasha Woodenware Co., 99 Wis. 300, 74 N.W. 797. The Schmidt action was brought by the widow in her capacity as administratrix of her husband's estate. It was an action to recover under the death statute. The widow died and Staeffler was appointed administrator of her estate, also of the estate of Schmidt, and sought to have the action revived as administrator of both estates. The court held that since Mrs. Schmidt, the sole beneficiary under the statutory death action, was dead, the action abated. The application to revive was denied. Then Staeffler as administrator of the Schmidt estate commenced the action which is reported under the title of Staeffler v. Menasha Woodenware Co., supra. The complaint in that action shows that it was brought to recover the expenses for medicine, surgery, nursing, and burial. The complaint alleged damages: “By reason of such expenses and outlays and the pain and suffering the estate has suffered.”

The case and briefs are in Vol. 671 of Cases and Briefs in the state law library. The appellants' brief designated the action as one brought by the plaintiff as...