Voss v. Tittel

• Court: Wisconsin Supreme Court
• Writing for the Court: NELSON
• Citation: Voss v. Tittel, 219 Wis. 175, 262 N.W. 579 (Wis. 1935)
• Decision Date: 08 October 1935
• Parties: VOSS v. TITTEL.

219 Wis. 175

262 N.W. 579

VOSS

v.TITTEL.

Supreme Court of Wisconsin.

Oct. 8, 1935.

Appeal from an order of the Circuit Court for Brown County; Henry Graass, Circuit Judge.

Reversed.

In this action, commenced by the plaintiff Leona Voss, on July 2, 1934, she seeks to recover damages from the defendant Ed. Tittel, a physician and surgeon, for injuries alleged to have been caused by his negligence in treating her on and between July 30 and August 8, 1932. On July 2, 1934, she caused to be served upon the defendant a summons an affidavit by plaintiff's attorney, and a notice that on July 13, 1934, the plaintiff would examine the defendant and take his deposition pursuant to the provisions of section 326.12. The defendant was examined pursuant to the notice, but the plaintiff did not serve her complaint upon the attorneys for the defendant until August 25, 1934. The defendant answered by way of plea in bar to the action and also to the merits. In his plea in bar he alleged that the plaintiff had failed to comply with the provisions of section 330.19 (5), Stats., in that she had neither served upon him written notice of injury, nor her complaint, within two years after the happening of the events which caused such damages. In his plea to the merits, any and all negligence on his part was denied. Thereafter, on September 13, 1934, the plaintiff served upon the defendant's attorneys an amended complaint in which she alleged that on July 2, 1934, the summons in the action was duly served on the defendant and that attached to and served with said summons was an affidavit, notice of adverse examination under section 326.12, and a subpœna, and that said examination was had on July 16, 1934. The defendant answered the amended complaint and again pleaded the failure of the plaintiff to serve a notice of injury or a complaint within two years after the happening of the event alleged to have caused such damages, as required by section 330.19 (5). Thereupon the plaintiff demurred to the defendant's plea in bar upon the ground that it did not state facts sufficient to constitute a defense. The court, after due hearing had, entered an order sustaining the plaintiff's demurrer to the defendant's plea in bar. From that order entered January 17, 1935, the defendant appealed. Such other material facts as require consideration will be stated in the opinion.

Robert R. Freeman and Ronold A. Drechsler, both of Milwaukee, for appellant.

Charles A. Copp, of Sheboygan, for respondent.

NELSON, Justice.

The plaintiff seeks to recover damages for injuries sustained by her as a result of alleged negligent treatment given her by the defendant on and between July 30, 1932, and August 8, 1932. It is alleged that, as a result of the defendant's treatment of her for a skin disorder in the region of her left eye, the left side of her nose was totally destroyed and sloughed off, that the skin and muscular tissues of the left side of her cheek suffered similar destruction and injury and that her eyesight was greatly impaired. The last treatment given her was August 8, 1932. No notice of injury as required by section 330.19 (5) was ever served upon the defendant. No complaint was served upon him until August 25, 1934, more than two years after August 8, 1932, the date of the last treatment.

The court held that the service of the summons, affidavit of plaintiff's attorney, notice of adverse examination, and subpœna, constituted substantial compliance with the provisions of section 330.19 (5), and accordingly sustained the plaintiff's demurrer to the defendant's plea in bar. The defendant contends that the court erred in so holding. So much of section 330.19 (5) as needs consideration is as follows: “No action to recover damages for an injury to the person shall be maintained unless, within two years after the happening of the event causing such damages, notice in writing, signed by the party damaged, his agent or attorney, shall be served upon the person or corporation by whom it is claimed such damage was caused, stating the time and place where such damage occurred, a brief description of the injuries, the manner in which they were received and the grounds upon which claim is made and that satisfaction thereof is claimed of such person or corporation. Such notice shall be given in the manner required for the service of summons in courts of record. No such notice shall be deemed insufficient or invalid solely because of any inaccuracy or failure therein in stating the description of the injuries, the manner in which they were received or the grounds on which the claim is made, provided it shall appear that there was no intention on the part of the person giving the notice to mislead the other party and that such party was not in fact misled thereby; provided, that the provision herein requiring notice of two years shall not apply to any event causing damage which happened before the passage and publication of this act. When an action shall be brought and a complaint actually served within two years after the happening of the event causing such damages, the notice herein provided for need not be served.”

That statute has often been considered by this court. In Hoffmann v. Milwaukee Electric Ry. & L. Co., 127 Wis. 76, 106 N. W. 808, 810, it was said: “The statute in question is clear and unambiguous, and if its words be given their plain, obvious, and ordinary meaning, there can be no room for doubt that the Legislature intended the statute, requiring notice to be served within one year after the happening of the event causing the damages, should apply to...