Maynard v. De Vries

• Decision Date: 09 March 1937
• Parties: MAYNARD v. DE VRIES et al.
• Court: Wisconsin Supreme Court

224 Wis. 224

272 N.W. 27

MAYNARD

v.DE VRIES et al.

Supreme Court of Wisconsin.

March 9, 1937.

Appeal from a judgment of the Circuit Court for Columbia County; C. F. Van Pelt, Judge.

Reversed.

This action was begun on December 27, 1935, by the plaintiff, Ida Maynard, against the defendants, Charles De Vries, county of Columbia, town of Wyocena, and town of Marcellon, to recover damages for injuries alleged to have been caused by a defective highway and the concurring negligence of the defendant Charles De Vries. The defendant De Vries cross-complained against the defendant Columbia county. There was a trial. The jury found De Vries negligent with respect to parking his car, in his line of travel and lookout; found that his negligence with respect to parking his car was not a cause of the plaintiff's injuries but that his negligence with respect to his line of travel and lookout was a cause; found the plaintiff negligent with respect to lookout; that her negligence in that respect was a cause of her injuries; assessed the damages, found that of the whole negligence 20 per cent. was attributable to De Vries, 60 per cent. to Columbia county, and 20 per cent. to the plaintiff. Judgment was entered in favor of the plaintiff against the defendant county, and in favor of the defendant De Vries against the defendant county on his cross-complaint. The complaint of the plaintiff was dismissed as against De Vries and from judgment entered accordingly on June 11, 1936, the county of Columbia appeals.

Arno J. Miller, of Portage (Grady, Farnsworth & Walker, of Portage, of counsel), for appellant.

Bogue, Sanderson & Kammholz, of Portage, for respondents.

ROSENBERRY, Chief Justice.

The injuries complained of were due to an accident which occurred on June 25, 1935. On the 8th day of July, 1935, plaintiff served notice of injury upon Columbia county and filed the same with the clerk. The county board treated this notice of injury as if it were a notice of claim, although it was not verified, and on November 19, 1935, disallowed it. The action was begun by the service of a summons and complaint on December 26, 1935. On February 18, 1936, the plaintiff filed a verified claim which the county board disallowed on the same day. The answer of the defendant county was served March 21, 1936. In the notice of injury filed July 8, 1935, the damages were alleged to be $2,050. In the claim filed February 18, 1936, the damages were alleged to be $4,000. In the complaint plaintiff prayed judgment for $4,000. Upon the trial the county clerk of Columbia county testified that the notice of injury was filed in his office July 16, 1935; that a claim for a larger sum was filed on February 18, 1936, being the verified claim known as Exhibit 11. On the introduction of this testimony counsel for the defendant county objected on the ground that the claim so filed was not a compliance with the statute and that the board was without authority under the statute to act upon the claim. After some colloquy the court stated: “As to the objection, let the record show that I will overrule it.” The county clerk then testified to the report of the committee on judiciary both as to the first and second claim.

Thereupon counsel for the plaintiff said: “We offer in evidence the combined claim, the claim for injury, and we offer in evidence the exhibits, 1 to-only two of which have been offered before.”

The court: “Received.”

The attorney for the county then said: “We move to dismiss for the reason that plaintiff failed to comply with the statutory requirements before commencing suit.”

The court: “Motion denied.”

[1] We state the procedure somewhat in detail, as counsel for the plaintiff claims there was no objection to the testimony. Certainly the objection made is sufficient in view of the statement by the court that it would overrule it-and the motion to dismiss the action on the ground that the claim was not properly verified and filed raised the precise question.

“59.76 Claims against counties; actions on; disallowance. (1) No action shall be brought or maintained against a county upon any account, demand or cause of action *** unless such claim shall have been duly presented to such board and they shall have failed to act upon the same within the time fixed by law.”

Section 59.77 provides for the filing of a statement and that “such statement shall be verified by the affidavit of the claimant, his agent or attorney, and filed with the county clerk; and no such claim against any county shall be acted upon or considered by any county board unless such statement is so made and filed.”

[2][3] We see no escape from the conclusion that this action was prematurely brought and cannot be maintained. Under the provisions of these sections, when the instant action was begun on December 26, 1935, there was no cause of action in existence in favor of the plaintiff against Columbia county. Furthermore, the statute prohibited the commencement of any action or its maintenance after it was commenced without first filing a claim. Unless we ignore the plain letter of these statutory provisions, the contention of the defendant county must be sustained. Nor can the contention of the plaintiff that there was no proper objection be sustained. The allegation of the complaint was “That notice of said injury and demand for compensation for the same was timely and duly and properly made as required by the statutes of the State of Wisconsin, such notice and demand for compensation being served upon and made notifying the County of Columbia and the Towns of Marcellon and Wyocena and demanding compensation from each of said towns and said county for the said injuries received.”

These allegations of the plaintiff's complaint were denied and it...