Raube v. Christenson
| Decision Date | 01 June 1955 |
| Citation | 270 Wis. 297,70 N.W.2d 639 |
| Parties | Sharon RAUBE, an Infant, by guardian, Appellant-Respondent, v. L. R. CHRISTENSON et al., Defendants, Fond du Lac County, Respondent, Milwaukee Automobile Ins. Co., a Wisconsin corporation, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
John J. Schneider, Fond du Lac, George J. Laird, Fond du Lac, of counsel, for Sharon Raube.
F. W. Cosgrove, Fond du Lac, S. Richard Heath, Fond du Lac, of counsel, for appellant Milwaukee Auto. Ins. Co. and respondent Fond du Lac County.
It is uncontradicted of record that the injuries were sustained on January 25, 1951, and that on February 24, 1951, on plaintiff's behalf, a verified notice of claim against Fond du Lac county was served on the County Clerk. The complaint was served on October 17, 1951. The named defendants were L. R. Christenson and Fond du Lac county. At a meeting of the Annual Session of the County Board, held November 13, 1951, the County Board disallowed the claim of the plaintiff. On August 26, 1952, the amended summons and complaint were served. It was then that Northwestern National Casualty Company, John H. Bottkol and Milwaukee Automobile Insurance Company were included as additional party defendants. It appears from an affidavit of record filed on behalf of the plaintiff that a meeting of the County Board was held on April 17 and 18, 1951. However it was not established that the County Clerk presented the claim to the Board at that time. In another filed affidavit there is allegation, on information and belief, that the claim was presented by the County Clerk to the County Board on August 23, 1951. In that affidavit there is also a statement that one of the counsel for plaintiff had entered into an agreement with the District Attorney representing Fond du Lac county that the case could be placed on the court's calendar for trial at the November term of court. It was further stated that on the opening day of the court term, November 5, 1951, the District Attorney consented and agreed that the summons and complaint served on October 17, 1951, were to stand as though timely served, and that the case could be calendared for trial.
In determining the motion for summary judgment to dismiss Fond du Lac county as a party defendant, the court held that the service of the summons and complaint on October 17, 1951, was premature: that since the amended summons and complaint had not been served within six months from the date of disallowance of the claim as prescribed by statute, the court was without jurisdiction to entertain the action; that the District Attorney was without power to waive the statutory requirements in regard to instituting and maintaining the action, and that the county is not estopped from challenging the validity of plaintiff's procedure in these respects.
In denying the application for summary judgment of dismissal of the complaint against John H. Bottkol, the court pointed out that an official may be liable for negligent acts even though the municipality employing him cannot be held liable, and that as to the alleged negligence of this defendant, questions of fact are presented which must be determined at a trial. In overruling the motion for summary judgment to dismiss the Milwaukee Automobile Insurance Company as a defendant, the court in its written decision observed that: (a) the insurance company under the terms and conditions of the policy is duty bound to defend the action with reference to the county and its employees, whether the cause of action is valid or not; (b) that the company in its policy contract had agreed that it would set up no defense except as such as would be valid or legal in case the insured were an individual or a private corporation; (c) that under allegations in the amended complaint there are facts which will of necessity have to be determined.
The legislature has prescribed precise procedure for asserting claims against a county and for instituting actions thereon. Sec. 59.76, Stats., provides in part:
'(1) No action shall be brought or maintained against a county upon any account, demand or cause of action when the only relief demandable is a judgment for money, * * * unless the county board shall consent and agree to the institution of such action, or unless such claim shall have been duly presented to such board and they shall have failed to act upon the same within the time fixed by law. * * *' (Italics supplied.)
(Italics supplied.)
Sec. 59.77, Stats., provides in part:
'(1) Every person * * * having any such claim against any county shall:
'(a) Make a statement thereof in writing, setting forth the nature of his claim and the facts upon which it is founded * * *.
'(b) Such statement shall be filed with the county clerk; and the county board may in its discretion require that all or certain types of such statements shall be verified by the affidavit of the claimant, his agent or attorney; and no such claim against any county shall be acted upon or considered by any county board unless such statement is made and filed pursuant to this section.'
Sec. 85.095, Stats., deals with motor vehicle accidents and state and municipal liability arising from such accidents. This section provides in part:
'(1) (a) 'Municipality' means * * * any county * * *.'
'(1) (b) 'Governing body' means * * * county * * * board * * *.'
'(2) Any person, * * * suffering any damage proximately resulting from the negligent operation of a motor vehicle owned and operated by any municipality, and which damage is occasioned by the operation of such motor vehicle in the performance of its business, may file a claim therefor against such municipality and the governing body thereof shall have the right to allow, compromise, settle and pay the same.'
'(3) (b) The manner and form of and the place for filing claims shall be: * * * If against any county, as provided in sections 59.76 and 59.77(1), with the county clerk.'
* * *' (Italics supplied.)
Sec. 59.76, Stats., was in effect before sec. 85.095, Stats., was enacted. With reference to claims arising from the negligent operation of automobiles owned and operated by a county, the procedure prescribed in sec. 85.095, Stats., is applicable. The failure of the County Board to pass upon claims when properly presented, shall within 60 days after presentation constitute a disallowance. Sec. 85.095(4), Stats.
The plaintiff in her complaint alleges that a maintenance crew employed by the county under the supervision of the highway commissioner, John H. Bottkol, negligently covered completely and obliterated with plowed ice and snow the otherwise duly and properly posted stop sign at the intersection in question; that Fond du Lac county and said highway commissioner knew or reasonable should have known, in the performance of their duties, that the stop sign had been so obliterated and covered; that this condition had existed for a period in excess of three weeks prior to January 25, 1951. No other item of negligence is alleged against the county and the highway commissioner in the complaint. It is further asserted that a claim setting forth such cause of action had been properly filed.
Included in the policy of insurance are the following agreements:
(Italics supplied.)
Plaintiff contends that the alleged negligence of the county and its highway commissioner as specified in the complaint constitutes a cause of action 'growing out of the use of automobiles,' and that this cause of action is within the coverage of the insurance policy with respect to the language 'arising out of the use' of the insured's vehicles. The plaintiff maintains further that such cause of action is within the purview of motor vehicle accidents referred to in sec. 85.095, Stats., and that this action was properly and timely commenced in accordance with provisions of that statute. These contentions raise the question as to...
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