Troschansky v. Milwaukee Elec. Ry. & Lighting Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: BARDEEN
• Citation: Troschansky v. Milwaukee Elec. Ry. & Lighting Co., 110 Wis. 570, 86 N.W. 156 (Wis. 1901)
• Decision Date: 21 May 1901
• Parties: TROSCHANSKY v. MILWAUKEE ELECTRIC RY. & LIGHTING CO.

110 Wis. 570

86 N.W. 156

TROSCHANSKY

v.MILWAUKEE ELECTRIC RY. & LIGHTING CO.

Supreme Court of Wisconsin.

May 21, 1901.

Appeal from superior court, Milwaukee county; Orren T. Williams, Judge.

Action by Alex. Troschansky, by Israel Troschansky, his guardian ad litem, against the Milwaukee Electric Railway & Lighting Company. Judgment for defendant, and plaintiff appeals. Reversed.

Action for personal injuries. The complaint sets out the facts, which, if proven, indicate that the defendant is liable for injuries sustained by plaintiff from being violently thrown from a street car on April 12, 1898. It further appears that he was a minor; that on May 7, 1900, a guardian ad litem was appointed; and that on May 9, 1900, a notice was served on defendant, presumably in compliance with the requirements of chapter 304, Laws 1897, now included in section 4222, Rev. St. 1898. No question is raised as to the sufficiency of the facts stated in the complaint to show a cause of action against the defendant. A demurrer to the complaint was interposed “on the ground that it appears on the face thereof that the action was not commenced within the time limited by law, for the reason that it appears that no complaint or notice of injury was served upon the defendant within one year after the happening of the event upon which said action is founded, as required by section 4222, Rev. St. Wis.” The demurrer was sustained, and the plaintiff has taken this appeal.Chas. G. Woolcock (A. B. May, of counsel), for appellant.

Spooner, Rosecrantz & Spooner, for respondent.

BARDEEN, J. (after stating the facts).

The demurrer in this action is based upon paragraph 7, § 2649, Rev. St. 1898, which provides that a defendant may demur to the complaint when it shall appear upon the face thereof “that the action was not commenced within the time limited by law.” In the case of Meisenheimer v. Kellogg, 106 Wis. 30, 81 N. W. 1033, this court expressed doubt whether an objection that the notice required by section 4222 had not been given could be taken by demurrer. Further consideration convinces us that the doubt thus expressed is of such substantial character that it cannot be removed. We have said in several cases that the notice required by the statute was not a condition precedent to the cause of action, but was in the nature of a statute of limitation. Meisenheimer v. Kellogg, supra; Relyea v. Pulp Co., 102 Wis. 301, 78 N. W. 412;Malloy v. Railway Co. (Wis.) 85 N. W. 130. The statute does not assume to...