In Budke v. Holvick, 255 Wis. 293, 38 N.W.2d 479, a typewritten notice of injury was served within the time limited by statute.Summary of this case from Ullman v. Freye
June 9, 1949. —
July 12, 1949.
APPEAL from an order of the circuit court for Ashland county: G. N. RISJORD, Circuit Judge. Affirmed.
For the appellants there were briefs by Sanborn, Lamoreux Pray of Ashland, attorneys, and Norlin Spears of Washburn of counsel, and oral argument by Theron P. Pray.
For the respondents Claude Budke and Bituminous Casualty Corporation there was a brief by Warren B. Foster and G. Arthur Johnson, both of Ashland, attorneys, and Grelle Schlotthauer of Madison of counsel, and oral argument by Mr. Johnson.
For the respondents Holvick there was a brief by Hughes Anderson, attorneys, and Powell Sprowls of counsel, all of Superior, and oral argument by R.E. Anderson.
Action to recover damages for personal injuries sustained by plaintiff Budke on September 12, 1946. At the time of the injury Budke was employed by the Coca Cola Bottling Company. The Bituminous Casualty Corporation carried the compensation risk for the bottling company, and joins with Budke to recover from the defendants as tort-feasors. A summons was served upon the defendants on October 14, 1948; the complaint was served November 15, 1948. Defendants moved for summary judgment of dismissal upon the ground of alleged failure of the plaintiffs to comply with the requirements of sec. 330.19 (5), Stats. From an order denying such motion defendants appeal.
Sec. 330.19 (5), Stats., provides in part:
". . . 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. . . ."
On May 26, 1948, and June 11, 1948, identical carbon copies entitled "Notice of claim for personal injury" were served upon Emmanuel Papadakis and Chrisanthe Papadakis, respectively. The contents of the notice are not challenged by defendants, but they contend that since the line for signature was blank and the name "Claude Budke" was typed below the line, it was an incomplete notice, being unsigned. Plaintiffs contend that the defect, if any, was cured by service on September 4, 1948, of carbon copies of "Notice of claim for personal injury" sustained by Budke, on behalf of Bituminous Casualty Corporation, by its attorney G. Arthur Johnson.
The notice of claim may, as appellants contend, be technically defective. Budke did not manually sign the copies of the notice which were delivered to defendants.
Appellants cite Voss v. Tittel (1935), 219 Wis. 175, 262 N.W. 579, 101 A.L.R. 722; Beyer v. Seymer (1946), 249 Wis. 257, 24 N.W.2d 616; and Olson v. Stella Cheese Co. (1948), 254 Wis. 62, 35 N.W.2d 220, to establish that this court requires the statute to be complied with if one desires more than two years in which to bring his action and serve his complaint.
The statute is specific and requires notice to be given in accordance with its terms, as held in the cases cited and others. However, substantial compliance with the statute must be held to be sufficient. To hold that the notice on behalf of Budke was not sufficient would indeed be to hold the plaintiff to a needlessly technical measure of compliance.
It is true, as counsel argues, that under similar circumstances a deed or other conveyance could not be held to be signed so as to transfer title to property. The language of the statute quoted above, however, indicates the legislature intended that a notice should not be deemed insufficient for technical reasons if it gave substantially the information to which the defendant is entitled and was not intended to mislead.
Because of our view of the notice served on behalf of Budke, we will not need to consider the effect of the Bituminous Casualty Corporation notice upon the right of Budke to recover.
By the Court. — Order affirmed.