Teegarden v. Town of Caledonia
| Citation | 6 N.W. 875,50 Wis. 292 |
| Parties | TEEGARDEN v. THE TOWN OF CALEDONIA |
| Decision Date | 12 October 1880 |
| Court | Wisconsin Supreme Court |
Argued September 24, 1880
APPEAL from the Circuit Court for Walworth County.
Judgment reversed and causes remanded for new trial.
For the appellant there was a brief in behalf of E. O. Hand and J. V Quarles, signed by Mr. Quarles, and oral argument by Mr Quarles.
For the respondent there was a brief by Fish & Dodge, and oral argument by Mr. Fish.
This is an action to recover damages for personal injuries alleged to have been received by the plaintiff in October, 1876, by reason of a defective bridge in a public highway of the defendant town. The plaintiff recovered, and the defendant has appealed from the judgment. We find it necessary to consider but two points, and these will be understood without a detailed statement of the case.
1. In attempted compliance with chapter 86, Laws of 1875, the following notice was served by the plaintiff in due time on the person to whom it was addressed, who was then one of the supervisors of the defendant town:
Unlike section 1339, R. S., the statute then in force did not require that the notice should be signed by the injured party, his agent or attorney; and although Fish & Lee did not describe themselves in the notice as the attorneys of the plaintiff, yet the fact that the plaintiff served the notice himself was sufficient to inform the town that they were acting for him. Such notice thus served was as effectual as though signed by the plaintiff himself, and would have been effectual although not signed by any one. We think, also, that the notice sufficiently describes the alleged defect in the highway, and apprises the town that the plaintiff claims satisfaction of it for his injuries. In short, we think the notice thus served is a substantial compliance with the statute in that behalf then in force.
2. On his cross examination, the plaintiff testified that he had been theretofore examined by Dr. Meachem for a proposed life insurance, but did not recollect whether it was before or after he was injured. He denied that he stated to Dr. Meachem, at that time, that he had met no loss of limb or serious personal injury. Dr. Meachem was called on behalf of the defendant, and testified that the medical examination referred to by the plaintiff was made by him in April, 1877, which was several months after the plaintiff was injured. A paper was here shown Dr. Meachem purporting to be a copy of the application of plaintiff for the life insurance, signed by him, and on the other side of the paper a copy of the medical examination in the form of questions and answers, signed by the examiner alone.
The witness testified generally that he could not state that the questions in the paper shown him were the same which he propounded to the plaintiff. Counsel for the defendant then put the following questions to the witness: These questions were objected to, and an examination of the witness by plaintiff's counsel disclosed the fact that all that passed between the plaintiff and witness on that occasion, relative to the health and physical condition of the plaintiff, was reduced to writing and signed by the witness alone. The court sustained the objection, and the questions were not answered. The ground upon which the court rejected the testimony was, that the writing is the best evidence of what it contains, and parol testimony of its contents could not be received. The court said to counsel for defendant, "You will have to obtain the paper which was signed, and put it in evidence."...
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