Lundquist v. Coddington Bros., Inc., Civ. A. No. 3420.

Citation202 F. Supp. 19
Decision Date26 February 1962
Docket NumberCiv. A. No. 3420.
PartiesJeanette LUNDQUIST, Plaintiff, v. CODDINGTON BROS., INC., a Wisconsin corporation, Defendant.
CourtUnited States District Courts. 7th Circuit. Western District of Wisconsin

D. V. W. Beckwith, Madison, Wis., for plaintiff.

Frank A. Ross, Jr., Spohn, Ross, Stevens & Pick, Madison, Wis., for defendant.

STONE, District Judge.

Defendant has moved for a summary judgment dismissing the complaint.

It is undisputed that plaintiff's intestate, Harry A. Lundquist, died on December 3, 1958, as a result of an accident; that the summons in this action was issued by this Court on February 28, 1961, and was served on defendant March 2, 1961. Section 330.21 of the Wisconsin Statutes, being a part of Chapter 330 of the statutes entitled "Limitations of Actions" was then in force and provided as follows:

Sec. 330.21 "Within two years: * * * "(3) An action brought to recover damages for death caused by the wrongful act, neglect or default of another."

After the commencement of this action, An Act to repeal 330.21(3) was enacted by the Wisconsin Legislature; the date of publication of this Act was January 30, 1962. It provided in part as follows:

"Section 2. 330.205(2) of the statutes is created to read:
"330.205(2) An action brought to recover damages for death caused by the wrongful act, neglect or default of another where death resulted on or after July 1, 1955.
"Section 330.21(3) of the statutes is repealed."

This Act extended the Statute of Limitations beyond the two year period fixed by Section 330.21(3).

The question before this Court is: Can the Wisconsin Legislature lawfully revive a cause of action against which the Statute of Limitations had run prior to the effective date of the Act, purporting to extend the Statute of Limitations.

For more than a century past the Supreme Court of this State has consistently held that when the Statute of Limitations has run upon a cause of action, the right of action has been extinguished, and there is vested in the person against whom liability could be asserted a right of defense which is beyond the power of the Legislature to take away or impair.

In Maryland Casualty Company v. Beleznay, 245 Wis. 390, 14 N.W.2d 177, Justice Rosenberry speaking for the State Supreme Court of Wisconsin, said:

"It appears therefore that at the time this action was begun on August 26, 1942, any action which the plaintiff or the assured might have had against the defendant for conversion or for money had and received was barred by the statute of limitations. In Wisconsin the running of the statute of limitations absolutely extinguishes the cause of action for in Wisconsin limitations are not treated as statutes of repose. The limitation of actions is a right as well as a remedy, extinguishing the right on one side and creating a right on the other, which is as of high dignity as regards judicial remedies as any other right and it is a right which enjoys constitutional protection."

Maryland Casualty Co. v. Beleznay, 245 Wis. 390, 393, 14 N.W.2d 177, 178.

In Pereles v. Leiser, 119 Wis. 347, 96 N.W. 799, the Court said:

"* * * this court approves the doctrine as stated in Woodman v. Fulton, 47 Miss. 682, `that the bar created by the statute of limitation is as effectual as payment or any other defense, and when once vested cannot be taken away by legislative action without the defendant's consent.'"

Pereles v. Leiser, 119 Wis. 347, 351, 352, 96 N.W. 799, 800.

In State v. Chicago & N. W. R. Co., 132 Wis. 345, 112 N.W. 515, the Court said:

"At this time all causes of action which had accrued six years before were barred, and were as effectually extinguished as if they had been satisfied by actual payment. Under such circumstances, the right, so created, constitutes property, and the state cannot deprive the party of it by legislative action which enlarges the period of limitation or by creating a new remedy for the collection of such claims. The authorities of this court on this proposition are numerous and clearly settle the law for this state."

State v. Chicago & N. W. R. Co., 132 Wis. 345, 361, 362, 112 N.W. 515, 521.

The Supreme Court of Wisconsin has consistently adhered to the Wisconsin doctrine that the running of the Statute of Limitations absolutely extinguishes the cause of action, for in Wisconsin limitations are not treated as a "statute of repose." The limitation of actions is a right as well as a remedy, extinguishing the right on one side and creating a right on the other, and it is a right which enjoys constitutional protection. Maryland Casualty Co. v. Beleznay, 245 Wis. 390, 14 N.W.2d 177; Laffitte v. City of Superior, 142 Wis. 73, 125 N.W. 105; First National Bank of Madison v. Kolbeck, 247 Wis. 462, 19 N.W.2d 908, 161 A.L.R. 882.

The rule of law almost universally supported by the authorities, is that retrospective laws are unconstitutional if they disturb or destroy existing or vested rights, as by arbitrarily recreating a right or liability already extinguished by operation of law. 16A C.J.S. Constitutional Law § 417, pp. 99-103.

It was held in Estate of Riley's, 6 Wis. 2d 29, at 37, 94 N.W.2d 233, at 237:

"A statute dealing with substantive rights cannot affect rights vested on its effective date."

The case of Schultz v. Vick, 10 Wis.2d 171, 102 N.W.2d 272, strongly relied on by plaintiff does not alter the Wisconsin rule of law heretofore referred to.

In the Schultz v. Vick case the action was brought within two years from the date of the accident. In the instant case it was not.

The legal issue prescribed and decided in the Schultz v. Vick case was not the "Bar of the Statute of Limitations" but the effect of the removal of a second requirement of maintaining an action for wrongful death; namely, the giving of a notice of injury, or in the alternative, serving a complaint within the two-year period. No notice was given in the Schultz v. Vick case, or in this action. In the Schultz v. Vick case the Statute of Limitations was not involved. The opinion in Schultz v. Vick starts with this sentence:

"The issue in this case is whether defendants had a vested constitutional right in the statutory notice requirement under the provisions of sec. 330.19(5), Stats. 1955, which provides:
"`* * * No action to recover damages for an injury to the person shall be maintained unless, within 2 years after the happening of the event causing such damages, notice in writing, signed by the party damaged, * * * shall be served upon the person or corporation by whom it is claimed such damage was caused, * * *.'"

Schultz v. Vick, 10 Wis.2d 171, 173, 102 N.W.2d 272.

The Court held the...

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3 cases
  • State of Minn. ex rel. Hove v. Doese, 17838
    • United States
    • Supreme Court of South Dakota
    • October 7, 1992
    ...See Waller v. Pittsburgh Corning Corp., 742 F.Supp. 581 (D.Kan.1990), aff'd, 946 F.2d 1514 (10th Cir.1991); Lundquist v. Coddington Bros., Inc., 202 F.Supp. 19 (W.D.Wis.1962); Wasson v. State ex rel. Jackson, 187 Ark. 537, 60 S.W.2d 1020 (1933); Cheswold Volunteer Fire Co. v. Lambertson Con......
  • Haase v. Sawicki
    • United States
    • United States State Supreme Court of Wisconsin
    • June 4, 1963
    ...of sec. 330.205(2), Stats., was held unconstitutional in an able opinion by the late Judge Patrick T. STONE in Lundquist v. Coddington Bros., Inc. (D.C.Wis.1962), 202 F.Supp. 19. There the wrongful death action was commenced in 1961 more than two years, but less than three years, after the ......
  • United States v. Palakow
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • April 8, 1969
    ...were to be regarded as a statute of limitations, it would, under Wisconsin law, create a property right. Lundquist v. Coddington Bros. Inc., 202 F.Supp. 19 (W.D. Wis.1962). It would then be doubtful whether the sovereign could enjoy an immunity from such statute of limitation and thereby de......

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