Parish v. Town of Eden

Lyon, J. 1. The complaint avers that the plaintiff brings this action in his capacity of administrator of the estate of William Parish, deceased, and then proceeds to allege that he was duly appointed such administrator by the county judge of Grant county. The answer contains no specific denial of either of these averments. Because the county court alone has jurisdiction to make such appointment, the objection was taken at the trial, by a demurrer ore tenus, that the plaintiff has not, by his complaint, shown that he was properly appointed administrator. — 281 — The objection was not well taken. The complaint sufficiently shows that the plaintiff sues in the capacity of administrator, and it was open to him to prove on the trial ■.that he had been duly appointed. He introduced his letters ■of administration in evidence, which show that he was duly appointed by the county court. Such appointment is under the seal of the court, is tested in the name of the judge thereof, and signed by him officially, and is in due form. The only objection interposed to this document was that it is nothing more than the act of the judge. The objection is unfounded in fact. The proof was properly received, and it establishes the plaintiff’s right “to maintain the action as such administrator. 2. The defendant alleged in its answer as defense that the cause of action did not accrue within two years prior to the commencement of the action, thus pleading the statute of limitations contained in subd. 3, sec. 4224, R. S. The same objection was also taken at the trial by a demurrer ore tejins. This defense is founded, upon the proposition that the service of the summons herein was the commencement of the action. Such service was made more than two years after the death of ■ the intestate. But the service of the summons is not necessarily the commencement of the action within the meaning of that statute. Sec. 4242 provides that “the presentment of any claim, in cases where by law such presentment is required, to the county board of the proper county, the board of audit of the proper town, city, or village, to the commissioners appointed to allow claims against the estate of a deceased person, or, where no such commissioners are appointed, to the county court, shall be deemed the commencement of an action within the meaning of any law limiting the time for the commencement of an action thereon.” The claim in this action was by law required to be presented to the board of audit of the proper town before, any action could be — 282 — maintained upon it (sec. 824, R. S.); and if it was so presented within two years of the death of the intestate, the cause of action is not barred. On July 14, 1882, the plaintiff, as administrator of the estate of the intestate, presented his written claim, in due form, for damages sustained by reason of the death of the said intestate, to the town clerk of the defendant town, with written directions to the clerk to file the same in his office, and to present the sanie to the town board. The town clerk is the clerk of the town board, and it is his duty to furnish to that board “all accounts, claims, and demands against the town filed with him.” Subds. 7, 8, sec. 832, R. S. This clearly indicates that the town clerk is the proper officer with whom to file claims against the town. The town board has but two stated meetings in each year, one in March and the other in December (sec. 820, R. S.); and these are the only opportunities that any claimant has to present a claim against the town directly to the auditing board. We think a fair and reasonable construction of these statutes is that claims may be presented to the board of audit at any time; to the board directly, if in session, and if not in session, then to the clerk of the board. Upon any other construction of the statute, this claim must have been presented to the board at its March session in 1882, which was five months less than two years after the death of the intestate. The construction we place upon this statute gives every claimant the full term of two years in which to present his claim, and such was the manifest intention of the legislature. It must be held, therefore, that this action should be deemed to have been commenced July 14, 1882, and hence is not barred by the limitation of sec. 4224, R.S. 3. It is claimed on behalf of the defendant (contrary to the findings of the jury) that the proper officers of the town had no actual notice of the defect in the highway com — 283 — plained of, and that such defect had not existed a sufficient length of time to charge the town with constructive notice thereof. The plaintiff’s intestate was killed on Monday night. Up to the preceding Saturday the highway at that point was in good repair, tyut on that day the same was dug up by the servants of the railroad company, and ditches were excavated in or near the traveled track, rendering the road defective and unsafe for travelers. On that same Saturday the overseer of the road district in which such highway was situated, saw its condition, and required the foreman of the men at work there for the railroad company to restore it to its former good condition. The foreman thereupon set some of his men at work to level the highway, and the overseer left the place and did not return to it. This wTas actual notice to the proper town officer of the defective condition of the highway, and eliminates from the case the necessity of considering the question of constructive notice. Undoubtedly the overseer left the. place in the full belief that the highway would be at once restored. But that is not sufficient to relieve the town from liability to travelers receiving injuries because of the defect in the highway. It was the duty of the overseer to see to it that the highway was restored, and nothing short of that will relieve the town from liability to travelers. We conclude, therefore, that the findings of the jury in this respect are sustained by the evidence. 4. It is maintained on behalf of the town that the uncon-tradicted evidence shows that the plaintiff — the father of the intestate — was guilty of negligence, which contributed directly to the death of the intestate; that the elder brother Renwick, the driver of the team, was also guilty of like negligence. Hence it is claimed that the court erred in submitting the questions of the negligence of the plaintiff and Renwick to the jury. The negligence imputed to the plaint — 284 — iff is that he permitted the boy Renwick to drive the team to Mineral Point in the night-time, over roads of the character described in the evidence, and that he permitted his son William to accompany his elder brother. The negligence imputed to Renwick is that there were many circumstances proved on the trial which indicated that he was lying down on the load, and was asleep when the accident happened. As to the alleged contributory negligence of the plaintiff the case in'principle is like that of Hoppe v. C., M. & St. P. R'y Co. 61 Wis. 357. In that case the deceased— a mere .infant — was left by the mother in charge of an elder brother seven years of age. The child wandered from his brother, went on the railroad track, and was killed by a passing train. It was argued that the mother was guilty of negligence in leaving the deceased with a boy of such tender years. But this court held that the alleged contributory negligence of the mother was not conclusively established, .but was a question for the jury. The grounds upon which that decision is rested need not be repeated here. They are peculiarly applicable to this case. Indeed, this is a stronger case, for the plaintiff; for there was no testimony in that case to show the capacity of the boy in whose charge the deceased was left, while here we have abundant evidence that Renwick was experienced and capable beyond his years in the use of horses, and was driving a very gentle, reliable team. Whether Renwick was or was not guilty of contributory negligence depends upon the inference to be drawn from many facts and circumstances proved on the trial, and it is the peculiar province of a jury to determine such inference. We think there was no error in submitting those questions of contributory negligence to the jury. 5. No exception was taken to the charge of the circuit judge to the jury, but due exceptions were taken to his re — 285 — fusal to give certain instructions proposed on behalf of the defendant. One of these is to the effect that the plaintiff was guilty of negligence in permitting his children to be upon the road at the time they were, killed, if they were of such tender years and discretion that they could not appreciate the danger of driving on a dark night upon the public highways, or the importance of exercising ordinary care to avoid injury. This instruction was entirely unnecessary, because the court charged the jury, in substance and effect, that it was essential to a recovery in the action that Ren--wick exercised the care and prudence of an adult person, and the verdict of the jury establishes the fact that, he was in the exercise of that degree of care and prudence when the accident happened. If, as to Renwick, the court modified the rule of ordinary care required of an adult, it was done at the request of defendant. Two of the proposed instructions are to the effect that if Renwick was asleep at the time of the accident, or, not being asleep, if he was then lying down upon the load, wrapped in blankets; in either case it was contributory negligence on his part, and the plaintiff could not recover. It is very doubtful whether the jury would have been justified, under the evidence, in finding that Renwick was' asleep at the time of the accident, and' it is not a correct proposition of law that he was negligent, if, being awake, he was then lying down upon his load, wrapped in blankets. A driver reclining in his wagon may be in the exercise of reasonable care, and it was for the jury to say, in view of all the surrounding circumstances, whether Renwick was in the exercise of such care. The charge of the circuit judge, on the subject of negligence in all its aspects, as applicable to the case, was full and accurate, — ■ so full and so accurate that we cannot properly disturb the judgment because of his failure to give the proposed instructions, even though they were supported by the evidence and contained correct — 286 — propositions of law; but they are unobjectionable in both particulars. Another, and the last of the proposed instructions which the court refused to give, was, that, in determining whether the plaintiff was negligent in permitting William to go to Mineral Point on the night of the accident, “the jury are authorized, and it is their duty, to exercise such knowledge as they may possess of the usage of mankind in general, in permitting children, such as these were, to drive teams upon the highway in the night-time.” Perhaps this proposed instruction might have been given without committing error; but it was rendered unnecessary by the general charge, in which the court substantially referred the question of the plaintiff’s contributory negligence to the common knowledge of the jury. The jury were instructed that ordinary care was such care as mankind generally would use under the like circumstances. As a matter of course, the jurors were compelled to resort to their common knowledge of the general conduct of mankind under such circumstances, in order to determine whether the plaintiff was-or was not in the exercise of ordinary care when he permitted his boys to go to Mineral Point. Moreover, a specific instruction that jurors are at liberty to avail themselves of common knowledge in determining ’a question of fact submitted to them, is scarcely necessary. Such knowledge is inherent in the mind, and is • inevitably resorted to in testing the value of other evidence upon a given proposition of fact. 6. No exception was taken on behalf of the defendant to any question of fact submitted to the jury, but counsel for defendant asked that several other questions be also submitted, which request was refused. These proposed questions are as follows: (1) At the time of the accident, was Renwick lying down on the load? (2) Was he asleep? (3) and (4) Same questions as to William. (5) Was the road between Centerville and Mineral Point a dangerous one? — 287 — (6) Was the condition of it known to the plaintiff when the children started on this journey? (7) Did they start on the journey with the plaintiff’s permission? (8) ITad either of them sufficient age and discretion to render it reasonably safe for them to have the care and management of this team of horses driving on this road in the night-time? For reasons already stated, the first four of these questions were properly rejected. The remaining questions, so far as they are material to the case, are all covered by and' included in the questions which were submitted to the jury. There is no conflict in the testimony as to the condition of the road between Centerville and Mineral Point, and it is not denied that plaintiff knew its condition at the time of the accident, except that he had no knowledge that the road had been rendered unsafe at the place of accident. Neither is it denied that he permitted his" children to start for Mineral Point on the evening of the accident. The proposed questions were properly rejected. 7. Within ninety days after the' death of the intestate the plaintiff gave notice to the defendant town, pursuant to' sec. 1339, R. S., of the death of his son by reason of the alleged insufficiency of the highway, and that he claimed satisfaction therefor. In form the notice is a compliance with that statute. The mother of the intestate did not join therein, and gave no such notice to the town. The damages recovered in this action belong to the plaintiff and his wife, pursuant to sec. 4256, R. S. Because the mother of the deceased has not thus notified the town, it is claimed that she has no interest in the recovery herein, and hence that judgment should be rendered for the plaintiff for only one half the damages assessed by the jury. We strongly incline to the opinion that the provisions of sec. 1339, R. S., requiring notice to the town, have no application in this case, or any other, where death results from the injury complained of. That section gives a right of action to the person sustaining — 288 — the damage complained of, and requires him to give the notice ; but it does not expressly provide that such notice shall be given by the administrator, or beneficiaries in a recovery, when the accident results in death. There are many apparently good reasons why the legislature did not intend the statute to cover such a case. However, we do not determine that question here, but dispose of the case on the hypothesis that the statute is applicable thereto. ¿ Whatever the rule may be, if several persons suffer damage by the same accident, caused by a defective highway (in which case the damages are necessarily several and not joint), we are of the opinion, and so hold, that in this case, in which the right of action for the whole damages is in the administrator, and the recovery is for the joint benefit of the father and mother of the deceased, notice, either by the administrator or one of the beneficiaries, is sufficient to charge the town (if otherwise liable) for the whole damages. Such a notice informs the town of the location and nature of the alleged defect in the highway, and that damages are claimed for the death of the intestate. This is all the statute requires. Had it been given by the administrator, there can be no doubt it would have laid a foundation for the recovery of full damages. No good reason is perceived why the same notice, given by one of several persons entitled to the benefit of the recovery, does not have the same effect. It is believed that the foregoing observations dispose of all the material errors assigned' as grounds of reversal. The record fails to disclose any error, and the judgment cannot properly be disturbed. By the Court.— Judgment affirmed.