Terbush v. Boyle

• Decision Date: 02 April 1935
• Citation: 259 N.W. 859,217 Wis. 636
• Parties: TERBUSH v. BOYLE.
• Court: Wisconsin Supreme Court

217 Wis. 636

259 N.W. 859

TERBUSH

v.BOYLE.

Supreme Court of Wisconsin.

April 2, 1935.

Appeal from an order of the Municipal Court for Kenosha County; Calvin Stewart, Municipal Judge.

Reversed.

This action was begun on April 24, 1934, by Harvey A. Terbush, administrator of the estate of William Haude, deceased, plaintiff, against Charles Boyle and Sam Engle, defendants, to recover damages in the sum of $12,500 on the ground that the defendant wrongfully caused the death of plaintiff's intestate, William Haude. The defendant Boyle appeals from an order entered September 13, 1934, striking out that part of defendant's answer setting up the defense that the action was barred by the statute of limitations.

William Haude was injured in an automobile collision in Kenosha county, Wis., on April 24, 1932, and as a result of such injuries died on the morning of April 25, 1932. The plaintiff, Terbush, was appointed administrator of the estate of William Haude on December 27, 1932, in Cook county, Ill., and duly filed his letters of administration in the county court for Kenosha county. On April 24, 1934, the plaintiff mailed a copy of the summons for each of the defendants to the secretary of state of the state of Wisconsin. These summonses were received and filed by the secretary of state on April 25, 1934, at 9 a. m., and on May 1, 1934, copies were sent to the defendants.

Randall, Cavanagh, Stephenson & Mittelstaed, of Kenosha, for appellant.

Harry V. Carlson, of Kenosha, for respondent.

ROSENBERRY, Chief Justice.

The defendant Boyle set up that he was not guilty of any of the grievances alleged in the complaint at any time within two years before the commencement of this action and that plaintiff's action is barred under the provisions of sections 330.15 and 330.21(3), Wis. Stats. 1931. The motion to strike which is in effect a demurrer and should have been so denominated raises the question of whether or not plaintiff's cause of action against Boyle was barred by the statute. The applicable statutes are as follows:

“330.15 Actions, time for commencing. The following actions must be commenced within the periods respectively hereinafter prescribed after the cause of action has accrued.”

“330.21 Within two years. Within two years: * * * (3) An action brought by the personal representatives of a deceased person to recover damages, when the death of such person was caused by the wrongful act, neglect or default of another.”

The question is, When did the cause of action accrue, (1) on the date of injury, (2) on the date of William Haude's death, or (3) when the administrator was appointed? If the cause of action accrued on the date of the death of Haude, the action was begun too late as the two years would have terminated on April 24, 1934. Siebert v. Jacob Dudenhoefer Co., 178 Wis. 191, 188 N. W. 610;North Shore Material Co. v. Frank W. Blodgett, Inc. et al., 213 Wis. 70, 250 N. W. 841. It is undisputed that the injury occurred on April 24, 1932, and that no notice of injury was served so that the cause of action for pain and suffering is barred.

By sections 12 and 13 of chapter 135 of the Revised Statutes of 1858, provision was made for the recovery by a personal representative of damages sustained by wrongful death with the following proviso: “Provided, every such action shall be commenced within two years after the death of such deceased person.”

By the revision of 1878, sections 12 and 13 became sections 4255 and 4256 of the Revised Statutes, except the proviso. The proviso became a part of the chapter on limitation of actions, appearing as a part of section 4224, Rev. Stats. 1878. The reviser's note is as follows: “Sec. 19, ch. 138, R. S. 1858, rewritten so as to conform to the statutes on the subject, as no forfeiture is now wholly to the person prosecuting therefor, and adding subdivisions 3 to cover the case of an action brought by the personal representatives of a person whose death was caused by the negligence of another.”

On the March assignment, 1881, the court had before it George, Adm'r, v. Chicago, Milwaukee & St. Paul Ry. Co., 51 Wis. 603, 8 N. W. 374. That was an action to recover damages for wrongful death occurring on July 15, 1875. The administrator was appointed on October 4, 1879. There was a demurrer to the complaint on the ground that the action was not commenced within the time limited by law. The court said: “This action was brought under the provisions of Rev. St. §§ 4255, 4256. The same statute stands in the Revision of 1858 as sections 12 and 13 of chapter 135. Section 13 contains the following proviso: ‘Every such action shall be commenced within two years after the death of such deceased person.’ This limitation is incorporated in the present revision in section 4224, § 3. [Referring to the revision of 1878.]”

There is a division of authority under wrongful death statutes as to when the cause of action accrues. In some states it is held it accrues when the injury occurs, in some when the death occurs, and in some when the administrator is appointed. See 8 R. C. L., § 82, p. 803. We discover no intent to change the existing rule of law by the revision of 1878. The proviso fitted naturally into section 4224 (3) because it had been held the action was barred two years after the death. While it is true that the observations of the court made in 1881 disclose no consideration of the fact that the word “death” is omitted in the revision of 1878, it was apparent that the court thought there was no change made in the law by the revision of 1878. See Louisville, E. & St. L. R. Co. v. Clarke, 152 U. S. 230, 14 S. Ct. 579, 38 L. Ed. 422.

The plaintiff relies upon State ex rel. Northwestern Mut. Life Insurance Co. v. Circuit Court for Waushara County, 165 Wis. 387, 162 N. W. 436, where it was held in a case involving the right to a change of venue that a cause of action did not “accrue” until the appointment of an administrator, but that it “arose” when the insured died; that...