Susenguth v. Town of Rautoul

• Decision Date: 03 February 1880
• Citation: 4 N.W. 328,48 Wis. 334
• Court: Wisconsin Supreme Court
• Parties: FERDINAND SUSENGUTH, RESPONDENT, v. THE TOWN OF RAUTOUL, APPELLANT.

48 Wis. 334

4 N.W. 328

FERDINAND SUSENGUTH, RESPONDENT,

v.THE TOWN OF RAUTOUL, APPELLANT.

Supreme Court of Wisconsin.

Filed February 3, 1880.

Appeal from Calumet circuit court.

J. E. McMullen, for respondent.

Coleman & Spence, for appellant.

COLE, J.

The defendant demurred separately to the second and third causes of action set forth in the complaint, on the ground that each is insufficient in law. In the second count, or paragraph, the plaintiff claims damages which he alleges he has sustained in consequence of being unable personally to attend to and operate his factory for the preparation of soda water, spruce and root beer, and bottled cider, articles which he was largely engaged in manufacturing when he received the injury in the first count mentioned; and also for damages for loss of trade sustained by him by reason of not being able to supply his customers with these articles of drink. In the third count he seeks to recover the expense incurred by him and money paid out during his sickness for medical aid and attendance, and for medicines. A number of objections are taken to each count. It is said that the loss or damages stated in each does not of itself constitute a distinct cause of action, but is the natural and proximate result of the injury set forth in the first count, and should have been included in that cause of action, by way of special damage. Doubtless this method of alleging special damage resulting from a wrong is not usual, but it is not the most serious objection to these counts.

The gravamen of the action is plainly the injury which the plaintiff sustained through the negligence of the defendant town to keep its highway in repair. But neither count contains any averment that there was an insufficient highway in the town, which the town neglected to repair, and which caused the injury; nor is there any allegation that the matters set forth in the first count, in that regard, are incorporated by reference in these counts, even if such a mode of pleading to help out a cause of action, defectively stated, were allowable under the decisions in Curtis v. Moore, 15 Wis. 134;Cutler v. Pedrick, 17 Wis. 88; and Sabin v. Austin, 19 Wis. 421. But there is a still more serious objection to each of these counts. It is nowhere averred in either that notice of the injury was given the town authorities as required by chapter 86, Laws of 1875. The injury of which the plaintiff complains was received on or about the...