Malloy v. Chi. & N. W. Ry. Co.

• Decision Date: 01 February 1901
• Citation: 109 Wis. 29,85 N.W. 130
• Court: Wisconsin Supreme Court
• Parties: MALLOY v. CHICAGO & N. W. RY. CO.

109 Wis. 29

85 N.W. 130

MALLOY

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Feb. 1, 1901.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Henry Malloy against the Chicago & Northwestern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This action was begun April 6, 1898, to recover damages for injuries received by the plaintiff November 14, 1897, while operating a switch in defendant's yard, alleged to have been defective and out of repair. The complaint alleged the giving of a notice of injury on April 4, 1898. The defendant answered this allegation by a general denial. At the trial the plaintiff made proof of the accident, and introduced the notice of injury in evidence. This notice is conceded to be insufficient under Rev. St. 1898, § 4222. A motion for nonsuit was denied. The defendant then asked permission to amend its answer by setting up the statute of limitations, which was also denied. The jury returned a special verdict assessing plaintiff's damages at $1,000, for which amount judgment was duly entered, and from which defendant takes this appeal.Edward M. Hyzer, for appellant.

Timlin, Glicksman & Conway, for respondent.

BARDEEN, J.

Section 4219, Rev. St. 1898, provides that “the following actions must be commenced within the periods respectively hereinafter prescribed after the cause of action has accrued.” Section 4222 limits the time for the commencement of an action to recover damages for an injury to the person to six years. It also contains a provision as follows: “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 damage notice in writing, signed by the party damaged, his agent or attorney, shall be served * * * stating the time and place where such damage occurred * * * and that satisfaction therefor is claimed of such person or corporation.” This statute was under consideration in the recent case of Meisenheimer v. Kellogg, 106 Wis. 30, 81 N. W. 1033. Among the grounds urged against the sufficiency of the complaint was that the notice of injury set forth therein was not sufficient, and that such notice was a condition precedent to the cause of action. This contention was distinctly overruled on the ground that the cause of action was one that existed at common law, existing independent of statute, and that the requirement of notice simply set a new limit within which a certain step necessary to enforce the right of action must be exercised. In other words, the statute was one of limitation, and not a condition precedent to the right to sue. Gatzow v. Buening, 106 Wis. 1, 81 N. W. 1003. It necessarily follows therefrom that an allegation of notice to the party who caused the injury was not essential to the cause of action stated. Neither allegation nor proof of service of such notice being necessary to the plaintiff's right to maintain his action, a statement in the complaint of the giving of such notice, and a denial in the answer, presented no issue fatal to the plaintiff's recovery. The cause of action was complete without such allegation, and a mere denial of it did not put the defendant in position to rely upon the limitation as a bar to the action. It has long been the rule of pleading that a party relying on the statute of limitations must plead it, or he cannot avail himself of that defense. Either the statute must be referred to, or the facts showing the limitation has run must be set out, in the pleading, or it is waived. Lockhart v. Fessenich, 58 Wis. 588, 17 N. W. 302. See, also, Orton v. Noonan, 25 Wis. 672.

There is, however, another reason why this judgment must stand. The accident occurred November 14, 1897. The action was begun April 6, 1898. If the statute is considered to apply to actions begun within one year after the accident, we have the absurd result of a limitation running against a cause of action after suit has been commenced to enforce it....