Reistad v. Manz

• Decision Date: 04 October 1960
• Citation: 11 Wis.2d 155,105 N.W.2d 324
• Parties: Ruth C. REISTAD, Ex'x of the Estate of Orrin Reistad, Deceased; Appellant, v. W. R. MANZ et al., Respondents.
• Court: Wisconsin Supreme Court

Page 324

105 N.W.2d 324

11 Wis.2d 155

Ruth C. REISTAD, Ex'x of the Estate of Orrin Reistad, Deceased; Appellant, v. W. R. MANZ et al., Respondents.

Supreme Court of Wisconsin.

Oct. 4, 1960.

Crowns, Crowns & Merklein, Wisconsin Rapids, for appellant.

Stafford, Pfiffner & Stafford, Chippewa Falls, for respondents.

BROADFOOT, Justice.

The plaintiff contends that neither the notice-of-injury statute nor the statute of limitations commences to run at the time when a surgeon leaves foreign bodies within the body of a patient but said statutes begin to run from the time that the patient, in the exercise of due diligence, first discovers the presence of such foreign objects in his body. It is contended that this exact question has never been determined in this state. It is argued that the negligence of the defendants which resulted in injury to Orrin Reistad was of a continuing nature.

The plaintiff relies upon cases in other jurisdictions and based upon the statutes of other states. Decisions of the courts of other states involving their statutes and prior decisions are of little value in cases arising in Wisconsin under Wisconsin law. We must look to the Wisconsin statutes and decisions of this court interpreting the same.

Although somewhat in the nature of a statute of limitations, our notice-of-injury statute has been held to be a condition precedent to the commencement of an action and is in addition to our statute of limitations. It has been held many times by this court that our notice-of-injury statute applies to actions to recover damages for injury to the person caused by alleged malpractice. Frechette v. Ravn, 145 Wis. 589, 130 N.W. 453; Lotten v. O'Brien, 146 Wis. 258, 131 N.W. 361; Klingbeil v. Saucerman, 165 Wis. 60, 160 N.W. 1051, 1 A.L.R. 1311; Shovers v. Hahn, 178 Wis. 615, 190 N.W. 432; Voss v. Tittel, 219 Wis. 175, 262 N.W. 579, 101 A.L.R. 722; Suskey v. Davidoff, 2 Wis.2d 503, 87 N.W.2d 306. The legislature has made an exception in cases involving fraud and that has been applied by this court in an action by a patient against his doctor. Krestich v. Stefanez, 243 Wis. 1, 9 N.W.2d 130, 151 A.L.R. 1022. However, the plaintiff states that no claim of fraud is being made in this case.

The plaintiff further calls attention to the provisions of sec. 9, art. I of the Wisconsin constitution, which provides that every person is entitled to a certain remedy for all injuries which he may receive. No citations of cases are given to support this argument. However, this court in the past has passed upon the meaning of this constitutional provision. It has been held that the same must be considered in the light of the common law as it stood at the time of the adoption of the constitution in 1848. Under such an interpretation it has been held that the constitutional provision did not abolish the tort immunity of governmental units. McCoy v. Kenosha County, 195 Wis. 273, 218 N.W. 348, 57 A.L.R. 412; Firemen's Ins. Co. of Newark, New Jersey v. Washburn County, 2 Wis.2d 214, 85 N.W.2d 840. Also, that this provision did not create a cause of action in favor of a minor against his parent...