Manas v. Hammond

• Court: Wisconsin Supreme Court
• Writing for the Court: FAIRCHILD
• Citation: Manas v. Hammond, 216 Wis. 285, 257 N.W. 139 (Wis. 1934)
• Decision Date: 06 November 1934
• Parties: MANAS ET AL. v. HAMMOND.

216 Wis. 285

257 N.W. 139

MANAS ET AL.

v.HAMMOND.

Supreme Court of Wisconsin.

Nov. 6, 1934.

Appeal from a judgment of the Circuit Court for Kenosha County; E. B. Belden, Circuit Judge. Reversed.

Mike Manas and George Mathos began this action on January 3, 1933, against the administrator of the estate of Jacob Roth, to recover damages for injuries sustained in an automobile collision which happened on July 22, 1928. No notice of injury was served. Roth died shortly after the accident. An administrator of his estate was appointed November 18, 1932, upon the application of the plaintiffs, who began their action within one year from the date of that appointment. The complaint describes the accident and alleges the negligence of Roth. The answer alleges, among other things, the failure of the plaintiffs to give notice of their injury within two years after the happening of the event alleged to have caused the injuries and damages. The cause was tried and a special verdict rendered by the jury upon which judgment was granted plaintiffs. The defendant appeals and assigns as error the trial court's refusal to hold that the plaintiffs' action was barred because of failure to serve notice of injury within two years after the accident.

Bender, Trump & McIntyre, of Milwaukee (Eugene L. McIntyre, of Milwaukee, of counsel), for appellant.

Julius Goldstein, of Kenosha, and William B. Collins, of Sheboygan, for respondents.

FAIRCHILD, Justice.

[1][2] Respondents' cause of action is barred because of their failure to serve notice of injury as required by section 330.19 (5), Stats. The exactness of this rule is not affected by the failure to have an administrator of a deceased tort-feasor appointed within the two-year limit. The requirement of section 330.19 (5) as to the giving of notice is a condition which must be complied with, and a failure in that respect leaves a plaintiff in a position where the courts cannot assist him by permitting the commencement of an action. In the case of Hoffmann v. Milwaukee Electric R. & L. Co., 127 Wis. 76, 106 N. W. 808, the law is expounded and the positiveness of the rule declared. The court in that case recognized the legislative intention to require notice of injury as a condition or limitation upon the right to maintain such an action. It was held in the case of Klingbeil v. Saucerman, 165 Wis. 60, 160 N. W. 1051, 1 A. L. R. 1311, that the requirement of the preliminary notice did not affect the time within which the action could be begun if the notice were properly given. Troschansky v. Milwaukee Electric Railway & Light Co., 110 Wis. 570, 86 N. W. 156.

The respondents seek to avoid the consequence of their failure to give the notice by relying upon the terms of section 330.34, which provides that an action may be begun within one year after the appointment of an administrator. But there are no exceptions to the requirement of notice. Arp v. Allis-Chalmers Co., 130 Wis. 454, 110 N. W. 386, 8 L. R. A. (N. S.) 997, 118 Am. St. Rep. 1036;Malloy v. C. & N. W. R. Co., 109 Wis. 29, 85 N. W. 130;Relyea v. Tomahawk Paper & Pulp Co., 102 Wis. 301, 78 N. W. 412, 72 Am. St. Rep. 878;Gatzow v. Buening, 106 Wis. 1, 11, 81 N. W. 1003, 49 L. R. A. 475, 80 Am. St. Rep. 1;Meisenheimer v. Kellogg, 106 Wis. 30, 33, 81 N. W. 1033.

It will be noticed that many of the Wisconsin decisions have adopted different reasons for their conclusion that notice must be given before the action can be maintained, but in all cases the plain terms of the statute have been recognized and the court has concluded that it is necessary that notice be given or action commenced within the two year limit. This is the rule even though statutes under some circumstances extend time fixed by statutes of...