Hoffmann v. Milwaukee Elec. Ry. & Light Co.

• Decision Date: 30 January 1906
• Citation: 106 N.W. 808,127 Wis. 76
• Court: Wisconsin Supreme Court
• Parties: HOFFMANN v. MILWAUKEE ELECTRIC RY. & LIGHT CO.

127 Wis. 76

106 N.W. 808

HOFFMANN

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.

Supreme Court of Wisconsin.

Jan. 30, 1906.

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

Action by Annie Hoffmann, a minor, by Adam Hoffmann her guardian ad litem, against the Milwaukee Electric Railway & Light Company. From a judgment of dismissal, plaintiff appeals. Affirmed.

This action was brought by a minor to recover damages for personal injuries sustained in September, 1901. The action was not commenced until more than one year had elapsed after the happening of the event which caused the injury. No notice was served by plaintiff as required by subdivision 5, § 4222, Rev. St. 1898, and this was pleaded in bar to the action by defendant. It was admitted on the trial that the action was not commenced until more than one year after the date of the injury, and that no notice had been served. Defendant admitted in open court that it was guilty of negligence, which was the proximate cause of plaintiff's injury, and that plaintiff was not guilty of contributory negligence. It was further admitted that plaintiff was about 19 years of age when the injury occurred, and about 20 when the action was commenced. It was stipulated upon the trial that the plaintiff had proved damages in the sum of $1,000, and that they should be assessed at that sum if she recovered. The court ordered judgment for plaintiff, which was entered, and afterwards, on motion of defendant, vacated and set aside, and judgment ordered for defendant. Plaintiff's motion for new trial was denied, and judgment entered in favor of defendant dismissing plaintiff's complaint with costs, from which this appeal was taken.Fiebing & Killilea and W. F. Adams, for appellant.

Clarke M. Rosecrantz, for respondent.

KERWIN, J. (after stating the facts).

Two questions are presented for consideration upon this appeal: (1) Whether persons under 21 years of age are required to give the notice provided for in subdivision 5, § 4222, Rev. St. 1898, as amended, within one year after the happening of the event causing the damages, in order to maintain an action commenced after the expiration of such year. (2) If subdivision 5, § 4222, Rev. St. 1898, does require the giving of such notice, is it valid?

1. A brief reference to the statutes respecting limitation of time for the commencement of actions will show that the notice referred to in subdivision 5, § 4222, Rev. St. 1898, is not a limitation upon the time for commencement of actions, but a condition or limitation upon the right to maintain actions, unless the notice shall be served within one year after the happening of the event causing the damages. Section 4206 of chapter 177 provides that civil actions can only be commenced within the periods of time prescribed, except when in special cases a different limitation is provided by statute. Section 4219 of the same chapter provides that the “following actions must be commenced within the periods respectively hereinafter prescribed after the cause of action has accrued.” Then follows, in this chapter, sections 4220, providing a 20-year limitation; 4221, a 10-year limitation; 4222, a 6-year limitation; 4223, a 3-year; 4224, a 2-year; and 4225, a 1-year limitation. Section 4233 provides: “If a person entitled to bring an action mentioned in this chapter, * * * be, at the time the cause of action accrued, * * * within the age of twenty-one years, * * * the time of such disability is not a part of the time limited for the commencement of the action.” Section 4249 of the same chapter, in effect, provides that the periods of limitation, unless otherwise specially prescribed by law, must be computed from the time of the “accruing of the right to relief by action.” These several sections, from 4206 to 4249, inclusive, were passed before chapter 304, p. 678, Laws 1897, and relate exclusively to limitations upon the commencement of actions, while chapter 304, p. 678, Laws 1897, which was added to subdivision 5, § 4222, as rewritten into the Revised Statutes of 1898, is a separate and independent provision imposing a condition to be performed necessary to the maintenance of the action after the expiration of one year from the happening of the event causing the damages. Malloy v. Chi. & N. W. R. Co., 109 Wis. 29, 85 N. W. 130;Relyea v. Tomahawk P. & P. Co., 102 Wis. 301, 78 N. W. 412, 72 Am. St. Rep. 878;Troschansky v. Milwaukee E. R. & L. Co., 110 Wis. 570, 86 N. W. 156. Chapter 304, p. 678, Laws 1897, provides: “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, signed by the party damaged, his agent or attorney, 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.” Chapter 307, p. 540, Laws 1899, dispenses with the above notice, when the action shall be brought and the complaint served within one year after the happening of the event causing the damages. Chapter 304, p. 678, Laws 1897, was in force when the plaintiff's cause of action accrued and imposed a condition, by its terms, upon all persons, without exception, to serve the notice provided for in order to maintain an action after the expiration of one year from the happening of the event causing the damages. No exception is made in favor of minors in this statute, and none can be ingrafted upon it by the courts. Statutes of limitation run against minors in the absence of exemption in their favor. Buswell on Limitations, § 104; Angell on Limitations, § 194.

It is urged, however, that this statute requiring the giving of notice within one year is a statute of limitation upon plaintiff's right of action, and within the protection of section 4233, and a very able and ingenious argument is presented in support of this contention. It is insisted that the law of 1897, in effect, limits the plaintiff's right of action to one year and must, therefore, be regarded a statute of limitation. But a sufficient answer to this is that she would still have the statutory period within which to commence her action, provided she complied with the law of 1897. In Troschansky v. Milwaukee E. R. & L. Co., supra, in considering the question, this court said: “The statute does not assume to limit the time in which the action is to be commenced. * * * The limitation is not upon the time of the commencement of the action, but upon the time within which a certain prescribed act, necessary to the enforcement of his cause of action, shall be done. If this is not performed within the time so limited, he loses his right to proceed.” The same reasoning applies to the argument of counsel that plaintiff is within the protection of the disability statute. Section 4233. That statute plainly and unequivocally contains a saving clause in favor of persons under 21 years of age respecting the commencement of actions, and cannot by any...