Rabe v. Outagamie County

• Decision Date: 04 May 1976
• Docket Number: No. 798,798
• Citation: Rabe v. Outagamie County, 72 Wis.2d 492, 241 N.W.2d 428 (Wis. 1976)
• Parties: Laura RABE, Personal Representative of the Estate of Elmer W. Rabe, and Laura Rabe, Individually, Respondent, v. OUTAGAMIE COUNTY and Hartford Accident & Indemnity Company. Appellants. (1974).
• Court: Wisconsin Supreme Court

Page 428

241 N.W.2d 428

72 Wis.2d 492

Laura RABE, Personal Representative of the Estate of Elmer W. Rabe, and Laura Rabe, Individually, Respondent, v. OUTAGAMIE COUNTY and Hartford Accident & Indemnity Company Appellants.

No. 798 (1974).

Supreme Court of Wisconsin.

Argued April 7, 1976.

Decided May 4, 1976.

Peter S. Nelson, Appleton (argued), for appellants; Fulton, Menn & Nehs, Ltd., Appleton, on brief.

Thomas J. Zoesch, Appleton (argued), for respondent; G. L. MacKenzie and Curtis, MacKenzie, Haase & Brown, Oshkosh, Sigman, Shiff, Janssen & Zoesch, Appleton, on brief.

HANLEY, Justice.

Two issues are presented on this appeal:

1. Was the demurrer properly overruled on the basis of compliance with the notice of injury and filing of claims statutes?

2. Was the deceased's sister a proper claimant under the applicable wrongful death statute?

Notice and Filing

The defendants contend that the complaint does not allege either the filing of a notice of injury within 120 days of the occurrence or the possession of actual notice without prejudice by the county. These alternative allegations are deemed necessary by them pursuant to sec. 895.43(1), Stats., which they argue is applicable to this case:

'895.43 Tort actions against political corporations, governmental subdivisions or agencies and officers, agents or employees; notice of injury; limitation of damages and suits. (1) No action founded on tort, except as provided in s. 345.05, shall be maintained against any volunteer fire company organized under ch. 213, political corporation, governmental subdivision or agency thereof nor against any officer, official, agent or employe of such corporation, subdivision or agency for acts done in their official capacity or in the course of their agency or employment unless within 120 days after the happening of the event causing the injury or damage or death complained of, written notice of the time, place and circumstances of the injury or damage signed by the party, his agent or attorney is served on such volunteer fire company, political corporation, governmental subdivision or agency and on the officer, official, agent or employe under s. 262.06. Failure to give the requisite notice shall not bar action on the claim if the fire company, corporation, subdivision or agency had actual notice of the damage or injury and the injured party shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial to the defendant fire company, corporation, subdivision or agency or to the defendant, officer, official, agent or employe.' (emphasis supplied)

Sec. 345.05, Stats., deals with damages proximately arising from the negligent operation of a motor vehicle owned and operated by certain governmental organizations including counties, which damages are occasioned by the operation of such motor vehicle in the performance of governmental business. While one interpretation of this statute might lead to the impression that it applies solely to negligence in the actual physical movement of a vehicle on a highway, see Raube v. Christenson (1955), 270 Wis. 297, 70 N.W.2d 639, such a construction has been distinguished, Schroeder v. Chapman (1958), 4 Wis.2d 285, 293--94, 90 N.W.2d 579; Kanios v. Frederick (1960), 10 Wis.2d 358, 363, 103 N.W.2d 114. In Schroeder, failure to post distant warnings that a maintenance vehicle was obstructing the road was considered intermingled with its physical operation.

If sec. 345.05 extends to loading activity of the vehicle, most of the charged negligences would fall into its claim notice provisions and not under sec. 895.43. The term 'operation' is the crux of the statute. If the statutory and use,' there would be little maintenance and use,' there would be little difficulty in holding that the statute embraced loading activity. See Allstate Insurance Co. v. Truck Insurance Exchange (1974), 63 Wis.2d 148, 216 N.W.2d 205 and Kroske v. Anaconda American Brass Co. (1975), 70 Wis.2d 632, 638, 235 N.W.2d 283. In Kroske, a statute required commercial motor carriers to obtain insurance covering damages arising out of the 'use or operation' of their vehicles. The legislative intent of the regulation, as part of a scheme governing highway use, clearly did not contemplate loading activity which, arguably, may be included in vehicle 'use.' Travelers Insurance Co. v. American Fidelity & Casualty Co. (D.C.Minn.1958), 164 F.Supp. 393. However, the broad additional term 'use' was not even used in sec. 345.05.

Interpretations that may be put on such language when used in an insurance policy is, of course, not controlling on a statutory usage not directly pertinent to such policies. Kroske acknowledged that where a statute concerning motor vehicles has an established purpose that requires broad and flexible interpretation, courts have discerned the legislative purpose and included loading activity. A review of the notice of injury procedures indicates that loading activity was not intended to be an 'operation' under sec. 345.05.

Where employees of a county or other governmental agency commit injury through negligence, a claimant must generally either undertake a timely notice procedure of such fact or establish that the governmental unit had actual notice and was not prejudiced by the lack of the formal notice. Sec. 895.43, Stats. This procedure gives the unit an opportunity to timely investigate the occurrence and perhaps reduce specious claims. It may also help prevent similar occurrences. Thereafter, the claimant must file a notice of claim as a step in recovery. See e.g., secs. 62.25 and 59.76, Stats. When the injury arises from direct operation of a vehicle the injured party need only file the notice of claim, Sec. 345.05(3), Stats. Certainly, actual and timely notice to the government unit cannot be disputed and is unnecessary on occasions when government employees cause damages in the direct course of operation of government vehicles. We think sec. 345.05 is applicable when the injury can be traced to incidents of vehicle operation on the highway rather than any collateral use such as loading.

Parts of the complaint indicates a perverse effect of accepting the plaintiff's implicit assumption that sec. 345.05 applies to loading activity. Negligence is asserted against county employees, apparently not present at the scene of the accident, who supplied the equipment used in the loading. If the evidence should ultimately show that this was the only occasion of negligence, the purpose behind the notice of injury exception for vehicle accidents would certainly be strained. A review of negligence cases involving loading and unloading activity demonstrates that damage occurrences often result without the presence of agents who are directly operating a vehicle. Negligence involved in uses of the vehicle other than in its operation on a highway are governed by sec. 895.43.

There was no allegation in the complaint of compliance with their alternative of sec. 895.43. The defendants contend that this deficiency renders the complaint demurrable. The mechanical necessity of pleading compliance with sec. 895.43 has already been decided adversely to the defendants in Majerus v. Milwaukee County (1968), 39 Wis.2d 311, 316--17, 159 N.W.2d 86. There is was held that compliance with sec. 895.43 is a 'condition in fact requisite to liability,' but is not a condition required for stating a cause of action. Lack of compliance is to be pleaded as a defense by the governmental agency or the insurer of its employees. The demurrer here is no more effective on the issue of sec. 895.43 than it was in Majerus.

Defendants are correct, however, in citing the case of Pattermann v. Whitewater (1966), 32 Wis.2d 350, 358, 145 N.W.2d 705, for the proposition that there must ultimately be compliance with both the notice and claim statutes. Secs. 59.76 and 59.77, Stats., and claim statutes for counties, are appropriate to this case. In Schwartz v. Milwaukee (1969), 43 Wis.2d 119, 168 N.W.2d 107, where the city claims statute, sec. 62.25, read 'No action shall be maintained' without a claim being filed and disallowed, this court held that suit could be commenced without such compliance but it would be dismissed when the issue of noncompliance was raised. The rationale of Schwartz was that a claimant may institute a suit before compliance with sec. 62.25 is complete, and this noncompliance is no grounds for dismissal if conformance is achieved before the question of compliance is raised.

Schwartz, however, clearly distinguished this procedure from the mechanics of conformance with sec. 59.76. The county claims statute reads 'No action shall be brought or maintained' without a claim being filed and disallowed. In Marynard v. DeVries (1937), 224 Wis. 224, 227, 272 N.W. 27, the failure to comply with sec. 59.76 before commencement of the action was fatal, notwithstanding compliance attempts afterwards. Schwartz acknowledged that if the language of a statute such as in Maynard, deals with commencement of an action, then the failure to comply with its provisions before the suit is brought requires that the complaint be dismissed. Schwartz, supra, 43 Wis.2d at 126--27, 168 N.W.2d 107.

Plaintiff acknowledges that Schwartz case but apparently overlooked the clear distinction it maintained between the different claim statutes for cities and counties. This is so because plaintiff implicitly acknowledges that compliance was not had with sec. 59.76. The...