McKeague v. City of Green Bay

• Decision Date: 27 April 1900
• Citation: 106 Wis. 577,82 N.W. 708
• Parties: MCKEAGUE v. CITY OF GREEN BAY.
• Court: Wisconsin Supreme Court

106 Wis. 577

82 N.W. 708

MCKEAGUE

v.CITY OF GREEN BAY.

Supreme Court of Wisconsin.

April 27, 1900.

Appeal from circuit court, Brown county; Samuel D. Hastings, Jr., Judge.

Action by Frank McKeague against the city of Green Bay. Judgment for plaintiff. Defendant appeals. Reversed.

Action to recover damages for loss of services of plaintiff's wife. The complaint sets out that plaintiff's wife met with an accident on May 30, 1894, while passing along a sidewalk in the city, caused by its defective condition. A notice, which was set out in full, was served on the city on August 25, 1894. It is with reference to the sufficiency of this notice that the chief controversy arises. The notice was directed to the common council of the city of Green Bay. So far as is necessary to raise the questions here involved, the notice was as follows: “Take notice that Anna McKeague, of the city of Green Bay, was, on the 30th day of May, 1894, injured while walking along and upon the sidewalk.” Here follows a description of the place of the accident, the defects in the sidewalk, and the injuries sustained by her. It concludes as follows: “That said Anna McKeague has, by reason of said injuries, suffered great mental and bodily pain, and still continues to so suffer. That she shall claim satisfaction for such injuries so sustained and occasioned from said city of Green Bay. Wigman & Martin, Attorneys for said Anna McKeague.” A demurrer to the complaint was interposed and overruled. The city then answered by general denial. At the trial the defendant objected to the introduction of any evidence under the complaint on the ground that it did not state facts sufficient to constitute a cause of action, which was overruled. The defendant also objected to the notice in question being offered in evidence, which was also overruled. Plaintiff offered evidence tending to support the cause of action stated in the complaint. A motion for a nonsuit was denied. Defendant offered no testimony. The jury brought in a verdict for $853 damages. A judgment was entered for plaintiff, from which the defendant has appealed.

Sol. P. Huntington, for appellant.

Wigman, Martin & Martin, for respondent.

BARDEEN, J. (after stating the facts).

The sole question arising upon this appeal is whether the notice put in evidence was sufficient under section 1339, Rev. St. 1878. That section provides that, if damage shall happen to any person by reason of the insufficiency or want of repairs of any street, the injured party shall have a cause of action against the municipality charged with the duty of keeping it in repair. It also distinctly provides that: “No such action shall be maintained against any * * * city * * * unless within ninety days after the happening of the event causing such damage, notice in writing, signed by the party, his agent or attorney, shall be given the * * * mayor or city clerk of the city 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 * * * city.” Plaintiff's right of action was a creature of the statute; hence the legislature has the right to annex such conditions to its enforcement as they might think proper. Daniels v. City of Racine, 98 Wis. 649, 74 N. W. 553. These conditions are: (1) Notice in writing; (2) it shall be signed by the party, his agent or attorney, and shall be given the mayor or city clerk; (3) the place of the accident shall be stated. (4) the insufficiency complained of shall be described; (5) it shall state that satisfaction for such injury is claimed. Admitting the right of the legislature to prescribe these conditions, the courts have no right to dispense with their performance. They are in the nature of conditions precedent to the right of the injured party to maintain an action. Testing the notice in question by the requirements of the statute, we find it wanting in several important particulars. It is not, and does not purport in any respect to be, a notice for or in behalf of the plaintiff. Neither the plaintiff nor his alleged cause of action is even remotely referred to therein. So far as can be ascertained therefrom, it is a notice given by a stranger of a claim in her own right, and for which she was claiming satisfaction. By no possible stretch of judicial construction are we able to say from this notice that the claimant was a married woman, that her husband had sustained any damage, or that he was intending to prosecute therefor. The notice expressly limits the claim for satisfaction to such injuries as the claimant herself had sustained. It is quite within the possibilities that, had the city been advised that the claimant was a married woman, and that her husband would also seek compensation for his damages, it might have sought to have settled and compromised both claims. But there is not a syllable or a word in the notice to apprise the city authorities of any such other or additional claim. There is no room for construction or inference. The notice utterly fails to come up to the statutory demands, and the demurrer to the complaint should have been sustained. Sargent v. Town of Gilford, 66 N. H. 543, 27 Atl. 306, is a case quite similar to the one under consideration, in which it was held that the filing of a statement by the wife did not fulfill the statutory requirement as to her husband. In reaching this result we believe we have but recognized the plain and unambiguous terms of the statute, and have only given effect to the clearly expressed will of the legislature. We regret to say, however, that there are one or two decisions of this court which give countenance to the result arrived at by the court below. It was in the endeavor to follow in the line of these cases that the trial court was led into error. The first of these cases is Parish v. Town of Eden, 62 Wis. 272, 22 N. W. 399. The action was by the father, as administrator, to recover, for the benefit of himself and wife, for injuries resulting in the death of their minor son. The notice given by the father was in full compliance with the statute, except that the mother did not join therein. It was held that, as the damages went to the father and mother jointly, a notice given by either the administrator or one of the joint beneficiaries was sufficient under the statute. The case did not attempt to establish a rule applicable to a case where the same accident caused injuries, in which the damages, as in this case, were necessarily...