Relyea v. Tomahawk Pulp & Paper Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: MARSHALL
• Citation: Relyea v. Tomahawk Pulp & Paper Co., 102 Wis. 301, 78 N.W. 412 (Wis. 1899)
• Decision Date: 21 February 1899
• Parties: RELYEA v. TOMAHAWK PULP & PAPER CO.

102 Wis. 301

78 N.W. 412

RELYEA

v.TOMAHAWK PULP & PAPER CO.

Supreme Court of Wisconsin.

Feb. 21, 1899.

Appeal from circuit court, Lincoln county; Charles V. Bardeen, Judge.

Action by Charles Relyea against the Tomahawk Pulp & Paper Company to recover compensation for a bodily injury received by plaintiff while in the employ of the defendant, alleged to have been caused by actionable negligence for which defendant is responsible. The facts stated in the complaint were sufficient to constitute a cause of action, unless Laws 1897, c. 304, applies. It contains the following: “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 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.” Plaintiff received his injury in 1896, leaving only 61 days after the act of 1897 to serve a notice as required thereby. He did not attain his majority or commence his action or serve the notice till the expiration of the year after the injury occurred. He was 21 years of age July 3, 1897, and the injury occurred June 28, 1896. All the facts stated appear by the complaint. Defendant demurred to the complaint for want of facts disclosed thereby sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff appealed. Reversed.J. C. Kerwin, for appellant.

A. H. Woodworth, for respondent.

MARSHALL, J. (after stating the facts).

The sole question presented here is, was plaintiff's cause of action extinguished by the failure to serve a notice under Laws 1897, c. 304? The learned trial court decided that in the affirmative, basing his conclusion, probably, on Plum v. City of Fond du Lac, 51 Wis. 393, 8 N. W. 283;Reed v. City of Madison, 83 Wis. 171, 53 N. W. 547. They were cases involving the applicability of acts of the legislature adding new conditions precedent to the statutory right to compensation for personal injuries received on public highways on account of the insufficiency thereof. In the Plum Case the time left after the passage of the act, for the performance of the new condition, was 80 days, and in the Reed Case 40 days. The acts were rightly held applicable because the rights affected were purely statutory. While the rule is inflexible that rights not dependent on statute are guarantied by the national constitution against impairment, either by laws affecting existing contracts or taking property without due process of law, mere statutory rights may be conferred upon such conditions as in the wisdom of the legislature may seem best, and the conditions may be changed from time to time, even as to existing rights, or such rights may be taken away entirely, at the legislative will. Such rights do not come within the constitutional provision. If the conditions requisite to their existence be once satisfied, a new one may be added as in the two cases cited, and whether the time given in which to comply with it be long or short is a matter exclusively of legislative discretion. True, there is language in opinions, treating of a new condition respecting existing statutory rights, indicating an idea in the judicial mind that, a law imposing such conditions takes effect as to such rights if a reasonable length of time be left for the claimant to comply with it; but the real ground upon which the decisions rest is that, the rights being statutory, they are entirely the subject of legislative discretion.

The difference between a statute requiring notice to be served, as for example Rev. St. § 1339, as a condition of a right to damages for an injury through failure of duty on the part of a municipality to keep its highways in a proper state of repair, and a statute requiring such a notice to be served as a condition of recovery for injuries to an employé through actionable negligence of his employer, is that the former is a condition of the right to damages and the remedy to recover the same as well, while the latter is a condition acting on the remedy alone, the right not being dependent on the statute at all. Such difference is well defined in the books and universally recognized. In Smith v. Cleveland, 17 Wis. 556, it is said, in effect, that the difference between laws that the legislature may change at will and those which the constitution protects from interference to the prejudice of vested rights, is that under the former the right is dependent on the law, and under the latter the right itself is independent of the law. The subject was recently discussed in Schaefer v. City of Fond du Lac, 99 Wis. 333, 74 N. W. 810;Daniels v. City of Racine, 98 Wis. 649, 74 N. W. 553, where it is said that a right given by statute may be changed by adding new conditions, or wholly taken away by statute. There, as in most cases of the kind, the right of action was spoken of as synonymous with the right itself, and properly so. If the distinction be not kept in mind, between statutory and common-law rights, where the court...