Ocampo v. City of Racine

• Court: Wisconsin Supreme Court
• Writing for the Court: WILKIE
• Citation: Ocampo v. City of Racine, 28 Wis.2d 506, 137 N.W.2d 477 (Wis. 1965)
• Decision Date: 02 November 1965
• Parties: Marla Carmen OCAMPO, a minor, by Adrian P. Schoone, her Gdn. ad Litem, Appellant, v. CITY OF RACINE, a Wisconsin municipal corporation, Respondent.

Page 477

137 N.W.2d 477

28 Wis.2d 506

Marla Carmen OCAMPO, a minor, by Adrian P. Schoone, her Gdn ad Litem, Appellant, v. CITY OF RACINE, a Wisconsin municipal corporation, Respondent.

Supreme Court of Wisconsin.

Nov. 2, 1965.

La France, Thompson, Greenquist, Evans & Dye, Racine, Adrian P. Schoone, Racine, of counsel, for appellant.

Jack Harvey, City Atty., Louis J. Roshar, Asst. City Atty., Racine, for respondent.

Julian Bradbury, Madison, for League of Wis. Municipalities, amicus curiae.

WILKIE, Justice.

Three issues are presented on this appeal:

1. Is the notice requirement in sec. 81.15, Stats., a condition precedent to the right to maintain an action, or is it a statute of limitation?

2. Is the notice requirement in sec. 81.15 applicable to a minor?

3. If the notice requirement in sec. 81.15 applies to a minor, is it constitutional?

Giving of Notice is Condition Precedent.

As pertinent here, sec. 81.15, Stats., states:

'* * * No such action shall be maintained unless within 120 days after the happening of the event causing such damages, notice in writing signed by the party, his agent or attorney shall be given to the county clerk of the county, a supervisor of the town, one of the trustees of the village or mayor or city clerk of the city against which damages are claimed, stating the place where such damages occurred, and describing generally the insufficiency or want of repair which occasioned it and that satisfaction therefor is claimed of such county, town, city or village. * * *' ¹

We have held that the notice requirement in sec. 81.15 is a condition precedent to the maintenance of a cause of action. ² Also the Wisconsin court has held that the notice-of-injury requirement in the old sec. 330.19(5), Stats.1955, was a condition precedent and not a statute of limitation. ³ The pertinent section of that statute stated:

'No action to recover damages for an injury to the person shall be maintained unless, whthin 2 years after the happening of the event causing such damages, notice in writing, signed by the party * * * shall be served upon the person or corporation by whom it is claimed such damage was caused, * * *.'

In Hoffmann v. Milwaukee E. R. & L. Co., ⁴ the court had to decide whether the following statute was a statute of limitation:

'No action to recover damages for an injury to the person shall be maintained unless, within one year after the happening of the event causing such damages, notice in writing, * * * shall be served upon the person or corporation by whom it is claimed such damages was caused, * * *.'

The Wisconsin court stated that the above statute was not a statute of limitation and on page 80, 106 N.W. page 809 quoted with approval the test used in Troschansky v. Milwaukee E. R. & L. Co. ⁵ to determine whether a statute is a statute of limitation:

"The statute does not assume to limit the time in which the action is to be commenced. * * * The limitation is not upon the time of the commencement of the action, but upon the time within which a certain prescribed act, necessary to the enforcement of his cause of action, shall be done. If this is not performed within the time so limited, he loses his right to proceed."

All of these holdings are consistent with the general rule as to when giving notice is regarded as a condition precedent rather than a statute of limitation, which rule is stated as follows:

'Notice by one party to another is frequently a condition precedent to the right to bring an action. Such notice may be required by express statutory enactment. * * * Whenever a statute provides that no suit shall be brought unless notice of the injury is given to the person responsible for it, the giving of such notice is a condition precedent to the plaintiff's right to recover.' ⁶

The appellant argues that the notice requirement present in sec. 81.15 is a statute of limitation because of our recent decision in Holytz v. Milwaukee. ⁷

Holytz did not change the effect of the notice requirment in sec. 81.15. Prior to that case, it was a condition precedent to recovery; since Holytz, it still is a condition precedent to recovery. A person has a cause of action against the city provided (or on condition that) he gives notice within the prescribed time. The notice requirement is not a limitation upon the time of commencement of the action. It is a condition precedent upon the right to bring an action against the city.

Required Notice Applies to Minors.

The Wisconsin court has applied the present notice requirement in sec. 81.15, Stats., to minors, ⁸ and this seems to be the majority position among the courts in the nation. ⁹

The purpose of the notice requirement in sec. 81.15 is to protect the municipality from the expense of needless litigation by settling just claims without suit and to allow the city an opportunity for investigation of the claims filed. ¹⁰ The exemption of minors from compliance with the notice requirement of sec. 81.15 would defeat the purpose of this requirement. Under sec. 990.01(20), Stats., a minor is considered to by any person who has not attained the age of twenty-one years. Therefore, the minor in our case would have over 14 years in which to bring an action against the city. With such a delay the city could not conduct a proper investigation and as a result is could not fairly decide whether the claim was just or adequately prepare its defense.

When Applied to Minors, Notice Requirement is Constitutional.

If no exception for minors can be read into the notice requirement of sec. 81.15, Stats., appellant contends that the section is unconstitutional because it violates the due process clause of the Fourteenth amendment, U.S.Const., and sec. 9, art. I, Wis.Const. ¹¹

In Hoffmann v. Milwaukee E. R. & L.Co. ¹² the court appllied the notice requirement present in a statute to a nineteen-year-old minor, and held that the statute was not unconstitutional because the one-year-notice requirement was not unreasonable or obnoxious to any constitutional provision. The test applied by the court was stated 127 Wis. on page 82, 106 N.W. on page 810:

'It is further contended that if the statute requiring notice within one year applies to persons under 21 years of age, it is unconstitutional and void as repugnant to the first section of the fourteenth amendment to the Constitution of the United States, and section 9 of article I of the Constitution of the state of Wisconsin. But it is sufficient to say, in reply to this contention, that the Legislature has the right to impose conditions and pass limitation statutes running against minors as well as adults, and the question for consideration is whether a reasonable length of time be given after the right accures within which to enforce it.'

In Will v. Jessen ¹³ the court was asked to decide whether the notice requirement present in sec. 330.19(5), Stats. 1955, applied to a five-year-old minor and whether it was constitutional if it applied to the minor. The court did not answer these questions but stated on page 501, on page 908 of 78 N.W.2d.

'While the applicability of the statute to a nineteen year old minor, and its constitutionality as so applied, was sustained by this court in Hoffmann v. Milwaukee Electric R. & L. Co., 127 Wis. 76, 106 N.W. 808, decided in 1906, we are urged to limit that decision to cases where the minor is old enough to act for himself in fact if not in law. The questions thus raised are serious and important, but we do not decide them on the present record.'

Two conflicting policies are present here. A city which faces a claim of liability is entitled to notice within a reasonable period of time both as to the way in which the accident happened and the nature ane extent of the injuries. On the other hand a child of such tender years as here is limited in her capability of giving such notice. The legislature has the right to resolve this conflict in policies and to impose conditions on the individual's right to recovery and these conditions will be upheld unless they are unreasonable. A condition is unreasonable when compliance with it is almost impossible and in essence the individual is given no right of recovery.

The 120-day-notice requirement is not unreasonable or unjust if the purpose of this requirement is taken into consideration. ¹⁴ In some situations a minor may not be able to act for himself but his parent or guardian can act for him and preserve his right of recovery. It is not impossible to comply with this notice requirement.

Judgment affirmed.

1 Sec. 81.15, Stats., as amended by ch. 435, Laws of 1963.

2 Hogan v. City of Beloit (1921), 175 Wis. 199, 184 N.W. 687; Calvert v. City of Appleton (1928), 196 Wis. 235, 219 N.W. 102. In Lang v. City of Cumberland (1962), 18 Wis.2d 157, 118 N.W.2d 114, the court refers to sec. 81.15, Stats., as a notice-of-injury statute and treats it as a notice-of-injury statute, which places a condition precedent upon the right to recover; see also 1941 Wisconsin Law Review, 540, 564.

3 Martin v. Lindner (1950), 258 Wis. 29, 44 N.W.2d 558. In Gerke v. Johnson (1951), 258 Wis. 583, 46 N.W.2d 829, this court referred to the notice requirement present in sec. 330.19(5), Stats. 1955, as a statute of limitation, but in Joosten v. Robinson (1960), 9 Wis.2d 1, 100 N.W.2d 327, this court again dealt with the notice requirement set down in sec. 330.19(5), and stated on page 6, 100 N.W.2d pp. 330, 331: 'In the Gerke Case we inadvertently referred to the two-year-notice statute in personal injury cases as a 'statute of limitations.' It should have been referred to as a 'condition precedent." See also: Voss v. Tittel (1935), 219 Wis. 175, 262 N.W. 579, 101 A.L.R. 722; Reistad v. Manz (1960), 11 Wis.2d 155, 105 N.W.2d 324.

4 (1906), 127 Wis. 76, 79, 106 N.W. 808, 809.

5 (1901), 110 Wis. 570, 571, 86 N.W. 156.

6 1 Am.Jur.2d Actions, p. 610, sec. 81.

7 (1962), 17 Wis.2d 26,...