Opinion
January 9, 1958 —
February 4, 1958.
APPEAL from a judgment of the circuit court for Milwaukee county: HARVEY L. NEELEN, Circuit Judge. Affirmed.
For the appellant there was a brief by Eisenberg Kletzke, attorneys, and John W. Bernard of counsel, all of Milwaukee, and oral argument by Mr. Bernard.
For the respondent there was a brief and oral argument by Giles F. Clark of Milwaukee.
Ellis claims to have been injured when struck by an automobile owned by respondent Hansen and driven by respondent Rickard on May 5, 1951. In April, 1953, Ellis gave to the sheriff for service on Rickard a summons and complaint in his action for damages arising from the accident. The sheriff did not serve these papers but returned them with a note that Rickard was "in service."
Service of the summons and complaint on Rickard was not made until February, 1955, while Rickard was still in the army. No two-year notice of injury pursuant to sec. 330.19 (5), Stats., was made at any time. The material part of that statute is:
". . . 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. . . . It is declared that the purpose of this statute is to prevent the prosecution of claims after the investigation of the facts upon which they are based shall have become difficult and no notice which advises the person to whom it is addressed of the principal facts upon which the claim is based shall be deemed insufficient if it substantially meets the requirements hereof. 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."
By appropriate motions and affidavits, Rickard moved to dismiss the action against him because of Ellis' failure to give him a two-year notice of accident and injury, coupled with a failure to serve him with summons and complaint in the action within such two-year period. Summary judgment dismissing the action as to Rickard was granted and the appeal is from the judgment dismissing the action.
The question is whether military service on the part of the alleged tort-feasor tolls the time when the notice of injury prescribed by sec. 330.19(5), Stats., must be served upon him.
As the statute itself declares, its purpose is to protect the alleged tort-feasor against stale claims. Positive authority and persuasive reasons would be necessary to convince us that a person in military service is denied the protection which the statute provides for others not so serving.
The reason which Ellis gives is that Rickard was exempt from civil process while in the army. We have held:
"The notice required by sec. 330.19(5), Stats., does not bring anyone within the jurisdiction of a court no matter how served. No action or special proceeding is thereby begun or conducted against anyone. No court acquires jurisdiction over any of the parties thereby. Such a notice may not fall within the definition of legal process." Oldenburg v. Hartford Accident Indemnity Co. (1954), 266 Wis. 68, 72, 62 N.W.2d 574.
So if Ellis is right about a soldier's immunity to civil process, still a plaintiff's obligation to give notice, which is not process, is unaffected.
But appellant cites no statute or decision which declares that a soldier has such an immunity and we have found none effective at any time applicable to this injury or this action. The Federal Soldiers' and Sailors' Civil Relief Act, 50 App. USCA, sec. 590, provides only that when process has been served on one in military service that person, in the discretion of the court, may have a stay of proceedings. It appears, then, that Rickard was not immune to civil process, if the notice had been process. Indeed, this action rests on summons and complaint served on Rickard while he was in the army, but later than two years from the event causing the alleged damage.
In Ausen v. Moriarty (1954), 268 Wis. 167, 177, 67 N.W.2d 358, we held that:
"The giving of the notice is a material thing. It is made a condition precedent to the maintenance of an action to recover damages."
The present appellant did not comply with the condition precedent. His reasons for not doing so seem to us to be insufficient to toll the statute directing when notice must be given or the complaint actually served. His action, then, against Rickard cannot be maintained. The trial court had to dismiss it.
By the Court. — Judgment affirmed.