Donner v. Graap

BashfoRD, J. The trial court in granting the order appealed from states as the reason therefor: “That the complaint is based upon a careless and negligent battery on plaintiff, and that the limitations prescribed by sec. 4222, Stats. (1898), and the provisions of subd. 5 of said section, do not apply; that the statute of limitations fixed by sec. 4224, Stats. (1898), does apply.” An application of these statutes to the cause of action stated presents the question to be determined on this appeal. Subd. 5 of sec. 4222 prescribes a six-year limitation upon actions to recover damages for an injury to the person, character, or rights of another not arising on contract, “except in case where a different period is expressly prescribed.” It provides that no action to recover damages for an injury to the person shall be maintained unless within one year after the happening of the event causing such damages notice in writing 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 wei’e received, and the grounds upon which claim is made, and that satisfaction thereof is claimed of such person or corporation.” The amendment of 1899 (Laws of 1899, ch. 301) provides that when an action shall be brought and a complaint actually served therein within one year after the happening of the event causing such damages, the notice “herein provided for need not be served.” It is conceded in this case that no notice in writing was served as required by this section and that [526] tbe action was not commenced and tbe complaint actually served witbin one year after tbe happening of tbe event. Tbe action was not, therefore, brought witbin tbe provisions of this section, and it cannot be maintained unless a different period is expressly prescribed elsewhere in tbe statutes. It is urged on behalf of tbe respondent, and as tbe trial court held, that this is an action for a negligent battery and tbe limitation prescribed by sec. 4224 applies. Subd. 2 of that section prescribes a two-year limitation upon actions to recover damages for libel, slander, assault, battery, or false imprisonment. Is that provision to be restricted to acts which are unlawful and intentionally wilful, or may it include acts committed unintentionally and through want of ordinary care ? In Drinkwater v. Andrew, 126 Wis. 241, 105 N. W. 575, it was held that tbe provision of subd. 5, sec. 4222, was not applicable to an injury inflicted by an assault and battery; that tbe action was governed by' tbe provisions of sea 4224, and consequently that no notice of tbe injury was required. That was an action to recover damages for an assault and battery inflicted wilfully and intentionally, as appears by tbe printed case. Tbe question here presented as to an unintentional battery was not there considered or decided. Eespondent contends that an action for assault and battery may be maintained where tbe injury results from tbe recklessness or negligence of tbe defendant or without any criminal intent, citing 2 Am. & Eng. Ency. of Law (2d ed.) 989, and Vosburg v. Putney, 80 Wis. 523, 527, 50 N. W. 403. Vosburg v. Putney was an action to recover for an assault, and tbe court held that tbe act was unlawful and that tbe intention to commit was necessarily unlawful. Tbe court was there considering an unlawful assault. In tbe opinion it is said that “plaintiff must show that tbe intention was unlawful or that tbe defendant is in fault.” Degenhardt v. Heller, 93 Wis. 662, 68 N. W. 411, was an action to re [527] cover for an assault with, a revolver, but the proof showed that the weapon was not aimed at the plaintiff and that it was discharged with the intention of giving him a fright but without intending to do him bodily harm. In the opinion a number of definitions of assault are given, all embodying the element of criminal intent — among others the following (93 Wis. 664, 68 N. W. 412) : “An assault is an intentional attempt,'by violence, to do an injury to another.” “If there is no such intention — no present purpose to do such injury — then there is no assault.” “The intention to do harm is of the essence of an assault, and this intent is to be collected by the jury from the circumstances of the case.” “In the case of a mere assault the quo animo is material, as without an unlawful intention there is no assault.” The court adds: “To the same effect is Vosburg v. Putney, 80 Wis. 527, 50 N. W. 403.” It is clear, therefore, that the definition of assault and battery as adopted by this court implies a wrongful intent. If the common-law definition is as broad as contended for by counsel and includes acts committed negligently and unintentionally, it would embrace a large class of cases for personal injuries. This may be illustrated by the quotation from 2 Addison, Torts (Wood’s ed.) § 788, as found in respondent’s brief, as follows: “Thus, if a man drives against and violently upsets the plaintiff in his carriage and knocks him down, or overturns the chair in which he is seated, the person thus striking the plaintiff or knocking him down is guilty of an assault, although he had no intention of committing an assault.” Are all personal injury cases which involve the element of negligent battery to be excluded from sec. 4222 requiring notice to be given, and are they to be barred after two years under sec. 4224, notwithstanding such notice ? It is considered by the court that the supreme court of the state of Minnesota in Ott v. Great N. R. Co. 70 Minn. 50, [528] 72 N. W. 833, passed on tRe precise question we Rave Rere as regards tRe meaning' of tRe word “battery” in onr two-year limitation statute in accord witR tRe conclusion before stated, and that in Perkins v. Stein & Co. 94 Ky. 433, 22 S. W. 649, and Rieger v. Fahys W. C. Co. 13 N. Y. Supp. 788, substantially tRe same conclusion was reached. In tRe Minnesota case it was said, in effect, speaking of the term “battery” in a limitation statute worded exactly like our own two-year statute above referred to, it means an event for wRicR a criminal action for assault and battery will lie, not one involving mere negligence. But, assuming that this complaint can be construed as stating a cause of action for a negligent battery, tRe court Ras reached the conclusion that it is to be governed by the provisions of sec. 4222, and that sec. 4224 does not apply. Sec. 4224 provides a limitation of two years on civil actions founded upon the malicious or wilful acts of the adverse party. It seemed wise to the legislature to fix this short period for the prosecution of claims of this character. The words “assault” and “battery,” as found in that section, are used in the same sense as defined in the case already cited as involving an intentional wrong. The words “assault” and “battery,” as found in subd. 2 of see. 4224, are associated with libel, slander, and false imprisonment, which are founded upon a wrongful act and not upon the want of ordinary care. TRe action for a battery which must be brought within two years is therefore held to be an intentionally administered1 injury to the person. Secs. 4222 and 4224 must be construed together, and every part given effect, if possible. This could not be done if it should be held that an action for negligent battery might be brought within six years under the first section, and that it would be baryed after two years under the second section. Ott v. Great N. R. Co. 70 Minn. 50, 72 N. W. 833. Eor the reasons stated the court holds that this action is [529] governed by the provisions of sec. 4222 and cannot, therefore, be maintained. By the Court. — The order appealed from is reversed, with directions to dismiss the action.