Nelson v. American Emp. Ins. Co.

• Citation: 55 N.W.2d 13,262 Wis. 271
• Parties: NELSON, v. AMERICAN EMPLOYERS' INS. CO. et al.
• Decision Date: 07 October 1952
• Court: United States State Supreme Court of Wisconsin

Page 13

55 N.W.2d 13

262 Wis. 271

NELSON, v. AMERICAN EMPLOYERS' INS. CO. et al.

Supreme Court of Wisconsin.

Oct. 7, 1952.

On September 11, 1948, the plaintiff was injured while a passenger in an automobile driven by her husband in the state of New Mexico. On September 9, 1949, she brought an action in Wisconsin to recover damages for her injuries by serving a summons and complaint on her husband and his insurer, the defendant American Employers' Insurance Company. The complaint alleged that her injuries were caused by certain specified negligences in her husband's operation of the automobile. The defendants demurred to the complaint on the grounds (1) that there was a defect in parties plaintiff, and (2) that the complaint did not state facts sufficient to constitute a cause of action. It was submitted that the plaintiff had no right of action under the law of New Mexico and, therefore, none in Wisconsin. The demurrer was overruled by order of Roland J. Steinle, circuit judge, and upon defendants' appeal to this court the order was affirmed. That proceeding is reported as Nelson v. American Employers' Ins. Co., 1951, 258 Wis. 252, 45 N.W.2d 681, 22 A.L.R.2d 1244. Subsequent facts are stated in the opinion.

Wallace Reiss, Milwaukee, Richard V. Reiss, Milwaukee, of counsel, for appellants.

Whyte, Hirschboeck & Minahan, Milwaukee, Victor M. Harding and John G. Vergeront, Milwaukee, of counsel, for respondent.

BROWN, Justice.

Appeal from order No. 1

After we returned the record to the trial court the defendants found reasons involving New Mexican law which might have been, but were not, submitted when they were here on the question of the alleged insufficiency of the complaint to state a cause of action. Thereupon they again demurred to the complaint on the same ground. The learned trial court, William J. Shaughnessy, circuit judge, overruled the demurrer by order dated March 12, 1951. Defendants appealed from this on February 8, 1952.

The learned trial court's order was clearly correct. Successive demurrers on the same ground to the same pleading can not be permitted if pending actions are to be disposed of. When we held on the former appeal that plaintiff had pleaded a cause of action under the law of New Mexico that become the law of the case. The defendants had their day in court and it was incumbent upon them then to submit their complete argument in support of their position. The case can not be heard again because counsels' subsequent research convinces them that more might be said.

Appeal from order No. 2

The plaintiff applied to the trial court for permission to amend her complaint and an order giving permission was granted by William J. Shaughnessy, circuit judge, May 8, 1951. Conformably thereto, plaintiff's allegations which originally charged the defendant driver with ordinary negligence were changed to charge him with gross negligence. On February 8, 1952, the defendants appealed from this order.

Defendants submit that in Wisconsin ordinary negligence and gross negligence are considered separate causes of action,--a proposition which may be conceded. Hafemann v. Seymer, 1926, 191 Wis. 174, 210 N.W. 373; Astin v. Chicago, M. & St. P. R. Co., 1910, 143 Wis. 477, 128 N.W. 265, 31 L.R.A.,N.S., 158. They are not, however, inconsistent in the sense that a choice of one absolutely waives the other; both causes may be pleaded in the same complaint, Astin v. Chicago, M. & St. P. R. Co., supra, 143 Wis. at page 493, 128 N.W. 265, but if plaintiff pleads only one she can not recover upon the other without amending the complaint. Idem.

Defendants here apparently believe that in some way plaintiff is estopped to amend her complaint so as to charge gross negligence because she first alleged only ordinary negligence. If this is one of the contentions of defendants we can find no merit in it. However, their principal contention on this part of the appeal relates to the fact that the amendment was permitted more than two years after plaintiff's injuries were sustained. They say that May 8, 1951, the date of the amendment, is more than two years after the accident and that this is the first time the plaintiff 'gave notice of a claim for gross negligence', and therefore an action arising out of the gross negligence of the defendant Nelson is barred by the statute of limitations. They rely on sec. 330.19(5), Wis.Stats., which declares that an action for damages for an injury to the person must be brought within six years. Then the portion of the statute material to the question now before us provides:

'(5) * * * No action to recover damages for an injury to the person shall be maintained unless, within two years after the happening of the event causing such damages, notice in writing, signed by the party damaged, his agent or attorney, shall be served upon the person or corporation by whom it is claimed such damage was caused, stating the time and place where such damage occurred, a brief description of the injuries, the manner in which they were received and the grounds upon which claim is made and that satisfaction thereof is claimed of such person or corporation. Such notice shall be given in the manner required for the service of summons in courts of record. No such notice shall be deemed insufficient or invalid solely because of any inaccuracy or failure therein in stating the description of the injuries, the manner in which they were received or the grounds on which the claim is made, provided it shall appear that there was no intention on the part of the person giving the notice to mislead the other party and that such party was not in fact misled thereby; provided, that the provision herein requiring notice of two years shall not apply to any event causing damage which happened before the passage and publication of this act. When an action shall be brought and a complaint actually served within two years after the happening of the event causing such damages, the notice herein provided for need not be served.'

The portion of the statute just quoted is not a statute of limitation but imposes a condition precedent to the right to maintain an action. Hoffmann v. Milwaukee Electric R. & L. Co., 1907, 127 Wis. 76, 106 N.W. 808; Manas v. Hammond, 1934, 216 Wis. 285, 257 N.W. 139; Siebert v. Jacob Dudenhoefer Co., 1922, 178 Wis. 191, 188 N.W. 610. When the condition is satisfied, the injured party has six years from the date of accident before the statute of limitations deprives him of his remedy. Bringing an action and actually serving a complaint within two years after the accident satisfies the condition and when that is done the statute expressly provides that the otherwise indispensable notice need not be served.

Defendants submit that this is a claim or an action 'for gross negligence' and no notice for that was given or action commenced within the two years. Neither the words nor the intent of the statute fit their argument. The statute shows no interest in forms of action or the details of pleading. Not actions for this or that kind of negligence are specified in sec. 330.19(5),...