Klingbeil v. Saucerman

• Decision Date: 16 January 1917
• Parties: KLINGBEIL v. SAUCERMAN.
• Court: Wisconsin Supreme Court

165 Wis. 60

160 N.W. 1051

KLINGBEIL

v.SAUCERMAN.

Supreme Court of Wisconsin.

Jan. 16, 1917.

Appeal from Circuit Court, Jefferson County; George Grimm, Judge.

Action by Emil Klingbeil against Willard T. Saucerman, executor of the estate of N. A. Loofbourow, deceased. Demurrer to answer overruled, and plaintiff appeals. Order affirmed.

The action is for malpractice, based upon the breach of an implied contract on the part of the deceased, to exercise proper skill and care in treating plaintiff's broken leg. The answer pleaded in bar the failure of plaintiff to give the notice provided for by subdivision 5, § 4222, Stats. 1913, to which plea the plaintiff demurred.Lehr & Kiefer, of Milwaukee, for appellant.

J. M. Becker and W. H. McGrath, both of Monroe, for respondent.

VINJE, J.

[1] This appeal raises the question whether the notice provided for by subdivision 5, § 4222, Stats. 1913, must be given in order to maintain an action for malpractice based upon a breach of the implied contract on the part of the physician to exercise proper skill and care in the treatment of plaintiff. In Frechette v. Ravn, 145 Wis. 589, 130 N. W. 453, this court held that in such an action based upon tort the notice must be given, but expressly reserved the question here presented. The Frechette Case was followed in Lotten v. O'Brien, 146 Wis. 258, 131 N. W. 361. The part of the section in question reads as follows:

“No action to recover damages for an injury to the person shall be maintained unless, within two years 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.”

[2] It is to be noticed that the clause in question though in the nature of a statute of limitations differs therefrom in that it requires a preliminary notice to be served within a specified time, instead of fixing the time within which an action shall be begun. Arp v. Allis Chalmers Co., 130 Wis. 454, 110 N. W. 386, 8 L. R. A. (N. S.) 997, 118 Am. St. Rep. 1036;Guile v. Lacrosse Gas & Electric Co., 145 Wis. 157, 130 N. W. 234; also that the notice must be served in every action for injuries to the person, irrespective of the form of such action. It was stated in Frechette v. Ravn, supra, that an action in tort for malpractice was “plainly one to recover damages for injuries to the person.” Why? Because defendant's conduct resulted in an injury to the person of plaintiff. If it did so because of the tort, which consisted in a breach of duty created by law, it is difficult to see why it does not do so when the same identical conduct produces the same identical result, though the complaint charges the breach of a duty created by contract between the parties instead of the breach of a duty created by law. Damages may flow from the breach of both duties, and likewise an injury to the person may result from the breach of a contract as well as from a tort. Where, as in malpractice, there is an option to sue in tort or on contract, each cause of action is grounded upon the same identical acts of the defendant, namely, his failure to exercise the proper skill or care, or both. The very same conduct gives plaintiff his option as to remedies. Hence, if defendant's conduct when sued in tort gives rise to an action for injuries to...