Schnabl v. Ford Motor Co., 19
| Decision Date | 12 June 1972 |
| Docket Number | No. 19,19 |
| Citation | 198 N.W.2d 161,54 Wis.2d 345 |
| Parties | Margaret M. SCHNABL, Admnx. of the Estate of Barbara M. Austin, Decd., etc., Appellant, v. FORD MOTOR CO., a foreign corp., et al., Respondents. |
| Court | Wisconsin Supreme Court |
Ford Motor Company presents two viable points on this motion for rehearing: (1) Must the cause of action stated in terms of breach of warranty be dismissed; and (2) does the fact that two cases cited in the decision have been overruled affect the judgment of this court in any way?
Ford asserts that appellant's failure to plead that notice of the alleged breach of warranty was given should result in the dismissal of that portion of the complaint charging Ford with breach of warranty. The giving of such notice within a reasonable time is a condition precedent to recovery. Mack Trucks, Inc. v. Sunde (1963), 19 Wis.2d 129, 136, 137, 119 N.W.2d 321. A complaint is defective if it does not allege that such notice was given. 77 C.J.S. Sales § 362e, p. 1276. The failure to plead such notice must be raised by demurrer. Hellenbrand v. Bowar (1962), 16 Wis.2d 264, 268, 114 N.W.2d 418, 115 N.W.2d 533. In the instant case, Ford demurred to the complaint on the grounds that it failed to state facts sufficient to constitute a cause of action, and that demurrer was overruled by the trial court. No appeal was ever taken from the order overruling the demurrer. The question of lack of notice was not presented in Ford's motion for summary judgment. Therefore, the question of notice is not properly before this court. As noted in the decision, Ford's answer alleges lack of notice, and the issue was properly preserved as an issue of fact.
Ford notes that the decision in this case cites two cases from New Hampshire which have been overruled by Kelley v. Volkswagenwerk Aktiengesellschaft (1970), 110 N.H. 369, 268 A.2d 837. The overruled cases were cited as illustrations of the views of various courts of the common law rule with respect to the propriety of maintaining a wrongful death action based on breach of warranty. In New Hampshire, statutes were enacted to change the common law rule, which prompted the court in Kelley to overrule the two cases cited in the opinion. New Hampshire now permits a wrongful death action to be brought where breach of warranty is alleged, and now...
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