McCoy v. Kenosha Cnty.

• Decision Date: 08 March 1928
• Citation: 218 N.W. 348,195 Wis. 273
• Parties: MCCOY v. KENOSHA COUNTY (TWO CASES).
• Court: Wisconsin Supreme Court

195 Wis. 273

218 N.W. 348

MCCOY

v.KENOSHA COUNTY (TWO CASES).

Supreme Court of Wisconsin.

March 8, 1928.

Appeal from judgments of the Circuit Court for Racine County; E. T. Fairchild, Circuit Judge, presiding.

Separate actions by Robert McCoy, an infant, by James E. McCoy, his guardian ad litem, against Kenosha County, and by James E. McCoy, individually, against the defendant named. From a judgment for the infant plaintiff for part of amount claimed, and from a judgment dismissing the complaint of James E. McCoy, plaintiffs appeal. Affirmed.--[By Editorial Staff.]

These two actions were commenced December 21, 1923, to recover for injuries to the infant plaintiff by the overturning of a truck on a highway in defendant county on August 19, 1922, and for the consequent financial damage to the plaintiff father.

The two cases were tried and brought here on appeal (188 Wis. 512, 205 N. W. 420) and retried in May, 1926, and judgment entered for the infant plaintiff for $5,000, and the father's complaint dismissed by respective judgments in May, 1927, from which the plaintiffs appeal.

The infant plaintiff was very severely and permanently injured because of a defect in the highway maintained by defendant and his damages were assessed by the jury at $17,000 on the first trial, and $35,000 on the trial now before us.

The damages of the plaintiff father were assessed by direction of the court at the sum of $1,029.35, being the amount of actual expenses incurred by him as parent in the care and treatment of the infant plaintiff.Richard J. Hennessey and Vincent D. Hennessey, both of Milwaukee, for appellants.

Lewis W. Powell, Dist. Atty., and John A. Kennedy, Asst. Dist. Atty., both of Kenosha (Robert V. Baker, of Kenosha, of counsel), for respondent.

ESCHWEILER, J.

[1] It is frankly conceded by appellant's counsel, in the able and interesting brief and argument here presented, that it has been uniformly heretofore held by this court that no liability exists for injuries against a municipality charged with the duty of maintaining its highways except and unless a statute so provides.

Such statute, so far as deemed here material and the one upon which the rulings of the court below was made, reads:

“Section 81.15 (formerly 1339): If any damage shall happen to any person, his team, carriageor other property by reason of the insufficiency or want of repairs of any bridge, sluiceway or road in any town, city or village, the person sustaining such damage shall have a right to sue for and recover the same against any such town, city or village, provided, however, that no action shall be maintained by a husband on account of injuries received by the wife, or by a parent on account of injuries received by a minor child; but if such damage shall happen by reason of the insufficiency or want of repairs of a * * * road which any county shall have adopted as a county road and is by law bound to keep in repair, such county shall be liable therefor and the claim for damages shall be against the county. * * * No such action shall be maintained against any county, town, city or village unless within thirty days in the case of any county, town or village, and fifteen days in the case of any city, after the happening of the event causing such damage, notice in writing * * * shall be given to the county clerk of the county * * * against which damages are claimed, stating the place where such damage occurred, and describing generally the insufficiency or want of repair which occasioned it and that satisfaction therefor is claimed of such county. * * * No notice given hereunder shall be deemed insufficient or invalid solely because of any inaccuracy or failure therein in stating the time, describing the place or the insufficiency or want of repairs which caused the damage for which satisfaction is claimed, provided it shall appear that there was no intention on the part of the person giving such notice to mislead the other party and that such party was not in fact misled thereby; and provided further, that the amount recoverable by any person for any damage or injury so sustained shall in no case exceed five thousand dollars. No action shall be maintained to recover damages for injuries sustained by reason of an accumulation of snow or ice upon any bridge or highway, unless such accumulation shall have existed for three weeks.”

It is undisputed and as alleged in the complaint that timely and proper notices in writing of the respective claims of the plaintiffs were given to defendant county. Appellants now contend that a proper construction of that statute, considering its specific language, grammatical construction and the history of its various changes since its first appearance as section 103, c. 16, R. S. 1849, requires a holding that the $5,000 limitation upon the amount to be recovered is applicable only to the class of cases in which a defective or inaccurate notice of the injury has been served and not to a case, such as here, where a complete, statutory notice was given--in other words, that, as a sort of penalty to those whose notice of injury is defective, such injured persons are limited in recovery to $5,000; and that those who give proper notice are entitled to recover the full amount of their assessed damages; those who give no notice cannot recover anything.

[2] We shall not discuss in detail the arguments upon which such contention is made, but content ourselves with saying that we cannot accept such suggested construction and feel that the statute as it now stands is to be treated as a whole and that it plainly provides that $5,000 is the maximum recovery that may be thereunder received.

[3] The main contention, however, upon which this appeal is brought, is, in substance, that there is secured by our state Constitution to persons such as the plaintiff infant and the plaintiff parent absolute rights to recover against any one causing by negligence such respective injuries. This argument is based fundamentally upon section 9, art. 1, Const., which reads:

“Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.”

This, it is now asserted was a gift of, a creation of, or a recognition of rights to a certain remedy for all injuries or wrongs to one's person, property, or character, instead of being a solemn assurance that, conformably to the laws a person should have his remedy for such wrongs or injuries as were, at the time of its adoption, recognized by the common law or should thereafter be recognized, as permitting recovery in actions at law or proceedings in equity, and this assertion is made even in view of the provision in the Constitution (section 13, art. 14), for continuing the common law as in force at that time.

To hold, as now argued by appellants, that there is shown the desire by the founders of this commonwealth, through the adoption of its Constitution, to sweep away all the old doctrines and previously recognized limitation upon the so-called natural rights of the individual, as such limitations had been found in the old world and in this country, prior to its adoption, would indeed effect quite a revolution in our present concepts of the rights and obligations of individuals to each other, and of the state and its agencies towards the individual. If appellant's position is sound--namely, that it was intended thereby to put it beyond the power of the Legislature to deprive individuals, situated as were the two plaintiffs here, of rights to recover against municipal corporations when acting as agents or arms of the state--then the result of much legislative strife and a long unbroken line of solemn judicial decisions would all have to be thrown into the discard.

[4] We cannot overlook the words, “conformably to the laws,” in this very provision of the Constitution so relied upon by appellants. That phrase, like the one, “due process of law,” must mean, as the latter phrase has repeatedly been held to mean, to relate to a recognized, long-established system of laws existing in the several states adopting the Constitution as well as in the prior organizations from which the states were organized. Hurtado v. California, 110 U. S. 516, 530, 537, 4 S. Ct. 111, 292, 28 L. Ed. 232;Holden v. Hardy, 169 U. S. 366, 390, 18 S. Ct. 383, 42 L. Ed. 780.

We can find no historical support for appellants' contention. This section 9, art 1, does not seem to have been presented in any form to, or to have been considered by, our first constitutional convention in 1846. It was presented in substantially the identical language in which it is now found and as a part of the then, so-called “Bill of Rights,” by a committee in the second convention which framed the Constitution adopted in March, 1848. Such provision, or the subject-matter thereof, does not appear to have been spoken of or debated anywhere through the proceedings of that convention or to have attracted comment or attention in the numerous newspaper articles with which the state was flooded during the time such Constitution was before the people for consideration.

We started off in our legislative and judicial history with a very definite attitude that neither this particular article nor any other of our Constitution had any such a sweeping away of and radical departure from many common-law principles and rules, many important ones of which, though growing up under the reigns of sovereigns, nevertheless had no connection with the rights of the sovereign, and yet were more or less denials of or limitations upon what would be within the broad and general field embraced in the term “natural and proclaimed rights of the individual to life, liberty, and security in person, property, and character.” Such, for...