Wysocki v. Wis. Lakes Ice & Cartage Co.

• Decision Date: 03 October 1905
• Citation: 125 Wis. 638,104 N.W. 707
• Court: Wisconsin Supreme Court
• Parties: WYSOCKI v. WISCONSIN LAKES ICE & CARTAGE CO.

125 Wis. 638

104 N.W. 707

WYSOCKI

v.WISCONSIN LAKES ICE & CARTAGE CO.

Supreme Court of Wisconsin.

Oct. 3, 1905.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Action by Stephan Wysocki against the Wisconsin Lakes Ice & Cartage Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff's son, a minor, was severely injured while in defendant's employ, and commenced an action through his guardian to recover damages for such injuries, which case was appealed to this court, and is reported in 121 Wis. 96, 98 N. W. 950. No notice of injury was served in such action, the same having been brought within one year from the time of the injury. The case at bar is an action brought by the father of said minor to recover damages for loss of services and for expense of medical attendance and nursing resulting from the injury sustained by said minor. Said minor son of plaintiff was injured on the 28th day of July, 1900. The summons and complaint in this action were served on the 28th day of May, 1904, four years after the date of injury to the son. The facts were stipulated on the trial, and it was agreed that in case plaintiff was entitled to recover upon such facts, he should recover $1,000 damages; the only question in controversy being whether it was necessary to serve the notice provided for in subdivision 5, § 4222, Rev. St. 1898, and, if so, whether the service of the summons and complaint in the action by the son through his guardian within one year from the date of injury was sufficient. Each party moved upon the stipulation for a directed verdict. Defendant's motion was denied, and a verdict directed in favor of the plaintiff for $1,000, upon which judgment was entered, and from which this appeal was taken. Error is assigned because the court ordered judgment for the plaintiff.Fiebing & Killilea, for appellant.

Frank H. Gugel, for respondent.

KERWIN, J. (after stating the facts).

The statute limiting the time for the commencement of certain actions to six years, so far as applicable here, reads as follows: “An action to recover damages for an injury to property, real or personal, or for an injury to the person, character or rights of another, not arising on contract, except in case where a different period is expressly prescribed. * * * No action to recover damages for an injury to the person shall be maintained unless, within one year 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. * * * When an action shall be brought and a complaint actually served therein within one year after the happening of the event causing such damages, the notice herein provided for need not be served.”

The defendant contends that the cause of action set up in the complaint for loss of services and expenses of medical attendance and nursing occasioned by the injury to the minor son of plaintiff, comes within the class designated in subdivision 5, § 4222, Rev. St. 1898, “for an injury to the person,” and therefore the notice provided for in such section should have been served in order to enable plaintiff to maintain this action. We do not think the statute will bear such interpretation. It will be seen that this statute classifies the actions to which the six-year limitation applies as follows: “An action to recover damages for an injury to property, real or personal, or for an injury to the person, character or rights of another, not arising...