Opinion
October 15, 1942 —
November 10, 1942.
APPEAL from an order of the circuit court for Dane county: AUGUST C. HOPPMANN, Circuit Judge. Affirmed.
For the appellant there was a brief by Hill, Beckwith Harrington of Madison, and oral argument by D. V. W. Beckwith.
For the respondents there was a brief by Wilkie, Toebaas, Hart, Kraege Jackman of Madison, attorneys for Clark B. Habacher and the Northwestern Casualty Company, and by Rieser Mathys of Madison, attorneys for Howard Michelson and the General Casualty Company, and oral argument by Lawrence E. Hart and Clifford G. Mathys.
The plaintiff-appellant commenced this action against the several defendants, on September 12, 18, and 30, 1940. Plaintiff brings the action as the duly qualified and acting administrator of the estate of Winifred J. McPeak, deceased. The deceased sustained injuries in an automobile accident on the 14th day of January, 1938, resulting in her death on January 18, 1938. The action is for damages for conscious pain and suffering. The action was not brought within two years after the death of the plaintiff's intestate. A notice of injury in writing, signed by the attorneys for the plaintiff, was served upon all of the defendants on the 13th day of January, 1940, pursuant to the provisions of sec. 330.19 (5), Stats. All of the defendants demurred to the complaint on the ground that it appears upon the face thereof that the action was not commenced within the time limited by sec. 330.21 (3). The trial court sustained the demurrers allowing plaintiff to plead over within fifteen days, upon condition of paying $10 motion costs to each of the counsel for the defendants. Plaintiff did not plead over and judgment dismissing the action was entered on March 10, 1942. The plaintiff appeals from the order sustaining defendants' demurrers and from the judgment.
The sole question on this appeal is whether the cause of action for conscious pain and suffering is barred by the two-year statute of limitations, sec. 330.21 (3), because it was not commenced within two years, after the death of the injured person; or whether the action is governed by sec. 330.19 (5), requiring notice to be served within two years after injury.
It is conceded that this case is ruled in respondent's favor by Staeffler v. Menasha Woodenware Co. (1901) 111 Wis. 483, 87 N.W. 480, unless that case is now overruled. A brief reference to the history of the Staeffler Case seems necessary. It was preceded by the case of Schmidt v. Menasha Woodenware Co. 99 Wis. 300, 74 N.W. 797. The Schmidt action was brought by the widow in her capacity as administratrix of her husband's estate. It was an action to recover under the death statute. The widow died and Staeffler was appointed administrator of her estate, also of the estate of Schmidt, and sought to have the action revived as administrator of both estates. The court held that since Mrs. Schmidt, the sole beneficiary under the statutory death action, was dead, the action abated. The application to revive was denied. Then Staeffler, as administrator of the Schmidt estate, commenced the action which is reported under the title of Staeffler v. Menasha Woodenware Co., supra. The complaint in that action shows that it was brought to recover the expenses for medicine, surgery, nursing, and burial. The complaint alleged damages: "By reason of such expenses and outlays and the pain and suffering the estate has suffered."
The case and briefs are in volume 671 of Cases and Briefs in the state law library. The appellants' brief designated the action as one brought by the plaintiff as administrator to recover for pain and suffering and for expenses of last illness and burial. In the Staeffler Case, supra, the action was not commenced until more than four years after death. The court held that the two-year statute of limitations was applicable to both the action for wrongful death and the action on the part of the estate to recover for pain, suffering, and expenses.
Sec. 330.21 (3), Stats., applies the two-year statute of limitations to "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 instant action is one brought by the personal representative of the estate of the deceased. It is an action to recover damages. It is alleged that the death of Miss McPeak was caused by the wrongful acts of the individual defendants.
Appellant contends that we should now overrule the decision in Staeffler v. Menasha Woodenware Co., supra. That opinion was rendered October 15, 1901. There is now applicable the rule that "when a statute has been construed by the highest court having jurisdiction to pass on it, such construction is as much a part of the statute as if plainly written into it originally." 59 C. J. p. 1036, sec. 613; State ex rel. Heiden v. Ryan, 99 Wis. 123, 74 N.W. 544; Eau Claire National Bank v. Benson, 106 Wis. 624, 82 N.W. 604; Milwaukee County v. City of Milwaukee, 210 Wis. 336, 341, 246 N.W. 447. In the latter case the court said:
"When a statute has been once construed by the court, it remains as construed until it is amended by the legislature or the construction given is modified or changed by the court. The statute under consideration has never been amended by the legislature since it was construed by the court, nor has the court ever in any way modified or limited the construction given. . . . The legislature by not amending the statute has accepted the statute with the court's construction incorporated therein."
Since the decision in the Staeffler Case, supra, is controlling, it will serve no purpose to discuss appellant's argument as to why that decision should be overruled.
By the Court. — Order affirmed.