Summary
In Martin v. Lindner (1950), 258 Wis. 29, 44 N.W.2d 558, it was held that where no notice or complaint was served within the required two years after the happening of the event causing the damages, plaintiff failed to perform the condition precedent required by sec. 330.19 (5), Stats., in order to entitle him to maintain the action in question.
Summary of this case from Schultz v. VickOpinion
October 6, 1950 —
November 8, 1950.
APPEAL from a judgment of the circuit court for Iowa county: ARTHUR W. KOPP, Circuit Judge. Affirmed.
Harry A. Speich of Mineral Point, and Thomas N. Burke of Madison, for the appellant.
For the respondent there was a brief by George J. Larkin of Dodgeville, and Clifford G. Mathys of Madison, and oral argument by Mr. Mathys.
Action brought by the plaintiff, Richards H. Martin, against the defendant, Elmer Lindner, to recover damages for injury sustained by plaintiff on July 10, 1947, which plaintiff alleges was caused by the defendant's negligent operation of an aeroplane. In answer to plaintiff's complaint defendant alleged as a plea in bar that plaintiff failed to serve upon defendant, as required by sec. 330.19 (5), Stats., either a written notice of injury to plaintiff or to actually serve upon defendant a complaint within two years after the happening of the event which caused such damage to plaintiff. On the grounds of plaintiff's failure in those respects, defendant moved for a summary judgment dismissing plaintiff's complaint. On the hearing of the issues raised by defendant's plea in bar, plaintiff filed affidavits stating:
On July 8, 1949, the plaintiff delivered to the sheriff of Iowa county a summons and complaint for the recovery of $15,000 damages against the defendant by reason of said injuries, and directed the immediate service thereof. The sheriff attempted to deliver a copy of the summons and complaint on the evening of July 8th, but found no one at defendant's residence. The following morning, a tenant in the residence informed the sheriff that defendant had left on July 7, 1949, on a trip to California to be gone for a month or six weeks but had left no forwarding address. Plaintiff had not previously known of the defendant's departure. The sheriff was unable to locate the defendant within Wisconsin or elsewhere from July 8, 1949, to August 11, 1949, and on the latter date he completed the service by delivering copies of the summons and complaint to defendant personally. At the time of such delivery he expressed some surprise and stated that he thought the action had to be commenced within two years from the date of the accident, and that more than two years had elapsed.
The trial court found and concluded, —
". . . that the plaintiff having failed to serve a notice of injury, or actually serve his complaint in this action, on the defendant, within two years of the happening of the event causing his damages, as provided by sec. 330.19 (5), Wisconsin statutes, the defendant is therefore entitled to summary judgment on his plea in bar dismissing the plaintiff's complaint. . . ."
From the judgment entered accordingly, plaintiff appealed.
On this appeal plaintiff contends, —
That defendant cannot, by his voluntary absence from the state, without disclosing his whereabouts, prevent plaintiff from prosecuting his action for recovery because of his inability to deliver either a written notice of injury or a complaint; that such voluntary absence of the defendant in the concluding days of the two-year period provided by sec. 330.19 (5), Stats., does not render plaintiff powerless to maintain his action; and that if it be held that delivery of the verified complaint to the sheriff for service and an actual service of the same within sixty days thereafter is not sufficient, the defendant's voluntary absence from the state, leaving no forwarding address, dispensed with service of the complaint, under sec. 269.38, Stats., which provides:
"When a party's residence and post office are not known and neither can with due diligence be learned and he has designated no place for service of papers upon him, service of notice and other papers on him is dispensed with unless there is a special rule requiring publication of notice, in which case the special rule shall be observed."
Those contentions cannot be sustained. That statute is not applicable in the instant case to excuse plaintiff's failure to serve a written notice of injury upon defendant as required by sec. 330.19 (5), Stats., because sec. 269.38, Stats., refers to and is applicable to a "party" which obviously means only those who have become a party in pending litigation. The legislative history of sec. 269.38 demonstrates that the section applies only to those who have become parties in pending litigation; and that section should be considered in conjunction with the preceding section, sec. 269.37, relating to service on attorneys, which has been in its present form for several decades. Sec. 269.37 provides in substance that when a party to an action or proceeding shall have appeared by an attorney, service shall be made upon the attorney, and that when a defendant shall not have appeared in person or by attorney, service of notice or papers in the ordinary proceedings in an action need not be made upon him unless he be imprisoned for want of bail. Then immediately following is sec. 269.38, Stats., quoted above, which does not purport to dispense with the serving of papers upon those who have not duly become parties to a pending action. Moreover, as sec. 269.38, Stats., refers to and is applicable only "when a party's residence and post office are not known," the statute can not be deemed applicable in this case because as alleged in the plaintiff's complaint and the affidavits on file, and as found by the trial court, Lindner was, at all times mentioned in the complaint, a resident of Iowa county. Even if sec. 269.38, Stats., could conceivably be otherwise considered applicable under any circumstances as completely dispensing with the express requirements of sec. 330.19 (5), Stats., in respect to the service of a notice of injury within the two-year period, it still could not be applicable here because Lindner's residence and post office were at all times known to plaintiff.
Plaintiff's counsel state in their brief that sec. 269.38, Stats., "in its earlier forms apparently related to the service of papers after a party had appeared in the action and then left without leaving an address." But they contend that by an amendment in July, 1939, the supreme court made a change so radical that it dispensed with the service of notice upon those whose residence was not known; and that as a result of that amendment the service of a notice of injury or the actual service of the complaint required by sec. 330.19 (5), Stats. (formerly sec. 4222, par. 5, Stats. 1898), was dispensed with as to those whose residence was not known. In relation to said statute the court stated in Troschansky v. Milwaukee E.R. L. Co. 110 Wis. 570, 571, 86 N.W. 156, —
"The statute does not assume to limit the time in which the action is to be commenced. . . . The limitation is not upon the time of the commencement of the action, but upon the time within which a certain prescribed act, necessary to the enforcement of his cause of action, shall be done. If this is not performed within the time so limited, he loses his right to proceed."
And as we stated in Manas v. Hammond, 216 Wis. 285, 286, 257 N.W. 139, —
"The requirement of sec. 330.19 (5), as to the giving of notice, is a condition which must be complied with, and a failure in that respect leaves a plaintiff in a position where the courts cannot assist him by permitting the commencement of an action."
Consequently, as in the case at bar there has not been either the required service of a notice of injury or a complaint actually served upon Lindner, within two years after the happening of the event causing his damages, plaintiff has failed to perform the condition precedent required by sec. 330.19 (5), Stats., in order to entitle him to maintain the action in question.
By the Court. — Judgment affirmed.