Schwartz v. City of Milwaukee

• Decision Date: 03 June 1969
• Docket Number: No. 275,275
• Citation: 168 N.W.2d 107,43 Wis.2d 119
• Parties: Josephine SCHWARTZ et al., Respondents, v. CITY OF MILWAUKEE, Appellant.
• Court: Wisconsin Supreme Court

Page 107

168 N.W.2d 107

43 Wis.2d 119

Josephine SCHWARTZ et al., Respondents, v. CITY OF MILWAUKEE, Appellant.

No. 275.

Supreme Court of Wisconsin.

June 3, 1969.

This is an appeal from an order overruling a demurrer to a complaint seeking damages for personal injuries. The complaint alleges the plaintiff Josephine Schwartz was injured on April 16, 1966, when the automobile which she was driving collided with a partially raised span of a bridge on the Sixteenth Street viaduct in the city of Milwaukee. As a result, Mrs. Schwartz received serious injuries and her husband, the plaintiff Joseph Schwartz, incurred considerable medical expenses. The defendant City of Milwaukee is alleged to be negligent in several respects, including the failure to provide proper warning lights, other warning devices, and to maintain the viaduct, bridge, and equipment in a proper state of repair in violation of s. 81.15, Stats. From the overruling of its demurrer, the city appeals.

John J. Fleming, City Atty., Herbert F. Sonnenberg, Asst. City Atty., Milwaukee, for appellant.

Michael, Best & Friedrich, Milwaukee, Lee J. Geronime, Milwaukee, of counsel, for respondents.

HALLOWS, Chief Justice.

The plaintiffs argue they have alleged four causes of action, two for Mrs. Schwartz, one under s. 81.15, Stats., ¹ relating to highway defects, and the other under s. 895.43, ² relating to general tort liability of a municipality; and similar actions for Mr. Schwartz to recover the medical expenses. The city does not challenge the sufficiency of the allegations under either of these sections but argues s. 81.15 is more specific and applies only to highways and therefore pre-empts the field in that respect and therefore s. 895.43 is not applicable to the facts alleged. Under this theory, only one cause of action is stated for Mrs. Schwartz, which would have a limitation on recovery of $25,000 as provided in these sections. It is also argued by the city that Mr. Schwartz' right to recovery is derivative and does not constitute a separate cause of action and consequently the limit of $25,000 includes his damages as well as those of Mrs. Schwartz.

The city asks us to determine on demurrer whether the complaint states one, two, or four, causes of action, but the answer to that question is not necessarily compelled by the function of a demurrer. If a cause of action is stated in a complaint, although it may be combined with other allegations not constituting a separate cause of action, the demurrer must be overruled. We point out, again, as we did in Dusek v. Pierce County (1969), 42 Wis.2d 498, 167 N.W.2d 246, and in Stippich v. City of Milwaukee (1967), 34 Wis.2d 260, 149 N.W.2d 618, that s. 81.15, Stats., only applies to a small area of negligent conduct by a municipality and in this area does not necessarily cover all the negligence which might relate to highways. One may have negligence on the part of a city in respect to a public highway which does not amount to a defect or a want of repair as those terms have been heretofore construed by this court in considering s. 81.15. Hence, s. 81.15 does not pre-empt all causes of action relating to highways. In Dusek we held the allegations of the failure to erect a road sign constituted negligence although not actionable, and not a defect or want of repair under s. 81.15. In Firkus v. Rombalski (1964), 25 Wis.2d 352, 130 N.W.2d 835, we held the failure to replace an arterial sign was actionable negligence and we did not refer to s. 81.15.

Neither s. 81.15 nor s. 895.43 create liability but rather provide the procedure to prosecute a claim for negligence. If the city is negligent, one or the other of the sections must be followed depending upon the type of negligence involved. It may be in a case some of the acts of negligence may result in a defect or want of repair of a highway and other acts constitute general negligence, but the acts taken together constitute only one cause of action. In any event, acts of negligence cannot be fragmentized into two recoverable causes of action in negligence for the same injury, although it might be necessary to comply with both sections to avoid the risk of making a choice. See Caygill v. Ipsen (1965), 27 Wis.2d 578, 135 N.W.2d 284. Apparently a material difference in these sections is the fact that s. 895.43 makes provision for actual notice while s. 81.15 does not. This point, however, is not involved in the instant case. A lot of confusion in the practice would be avoided if the legislature would repeal s. 81.15, which is no longer needed since our decision in Holytz v. City of Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618, and the amendment to s. 895.43.

The complaint states a cause of action if the plaintiffs have complied with s. 62.25, Stats., ³ requiring the making of a claim against the city. The city argues no claim was filed and if what was filed constitutes a claim it was not timely in reference to the commencement of this action. On April 27th, 1966, what was designated a 'Notice of Claim.' presumably under s. 895.43, was served on the city. This document did not constitute a notice of claim but rather a notice of injury. On July 20th, 1966, another 'Notice of Claim,' but in fact a notice of injury under s. 81.15, was served upon the city. Both of these notices were rejected by the city and neither could be considered a notice of claim because they stated no amount for the injuries. While this suit was pending, the plaintiffs filed notices of claim with the city in order to comply with s. 62.25, demanding $50,150 for Mrs. Schwartz and $25,000 for Mr. Schwartz. These claims were based on the four causes of action claimed to be vested in the plaintiffs. The claims were denied by the city and an amended complaint was then filed in this action which alleged the serving of the claims and the denials. The amended complaint was substituted for the original complaint by court order.

In Colburn v. Ozaukee County (1968), 39 Wis.2d 231, 159 N.W.2d 33, we explained that both ss. 81.15 and 895.43, Stats., required a notice of injury. Both sections now require notice be given within 120 days of the alleged accident and limit liability to $25,000. In addition, other statutes require a notice of claim, i.e., s. 62.25, Stats., in respect to cities. Judging from the cases which come before this court, it is not generally understood that both a notice of injury and a notice of claim must be given. If a notice of claim is used to serve both purposes, then all the requirements including the time limit of both sections must be complied with.

The city argues the notices of claim were invalid and did not constitute a notice of claim within the meaning of s. 62.25 because they were in excess of the $25,000 limit. There is no merit in this argument. The city misconstrues Pattermann v. City of Whitewater (1966), 32 Wis.2d 350, 145 N.W.2d 705, wherein this court held a claim which 'would not exceed the $25,000 statutory limit(ation)' was not a claim but a notice of injury under s. 895.43. While a notice of claim must claim a definite amount, the fact that amount exceeds the maximum the city may allow under the statute does not render the claim invalid. In s. 81.15 it is provided 'the amount recoverable * * * shall not exceed $25,000,' and is s. 895.43 it is provided 'the amount recoverable * * * in no case (shall) exceed $25,000.' These statutes do not provide that a claim in excess of $25,000 must be stated at that limit or be void. It is the duty of the claimant to honestly state the amount of his claim whatever it is and it is the duty of the city to verify this amount and, if there is liability, to allow it not in excess of $25,000.

The city further contends this action was commenced prior to the filing of the claim under s. 62.25 and therefore was premature and such defect cannot be cured by the filing of a claim during the pendency of the suit and then amending the complaint. Thus a question is presented whether s. 62.25 is a condition precedent to the commencement of the action or only to its continuance so that recovery cannot be granted if the defect is brought to light by some pleading. If the language 'No action shall be maintained against a city * * *' in s. 62.25 means 'commenced,' then this complaint must fail.

A case on all fours with the instant case but which does not refer to s. 62.25, Stats., is Welch v. City of Oconomowoc (1928), 197 Wis. 173, 221 N.W. 750, where an action was commenced against the city to recover money paid under an assessment without first filing a claim for a refund. While the action was pending the claim for refund was filed and disallowed and the complaint amended to allege the facts. The court held the purpose of the statute requiring all claims against a city to be filed before any are made a basis of action was satisfied because the city had the opportunity to adjust the claim. In Maynard v. De Vries (1937), 224 Wis. 224, 272 N.W. 27, the court refused to follow Welch and based its decision on s. 59.27, Stats., (claim against county), which it stated was much stricter in its provisions than s. 62.25.

In between these two decisions, this court decided Sauk County v. City of Baraboo (1933), 211 Wis. 428, 248 N.W. 418, wherein this court held Sauk County could not recover the cost of constructing a bridge from the city of Baraboo because the county had failed to file a claim. The decision stated s. 62.25(1),...