Maurer v. Northwestern Iron Co.

IVraT?sTTat.t., J. Sec. 4222, Stats., prescribes the manner of serving a notice of injury in the circumstances of this case. “Such notice shall be given in the manner required for the service of summons in courts of record” are the words of the statute. The giving of the notice is the material thing. It is made a condition precedent to the maintenance of an action to recover damages. It is not a condition of the existence of a cause of action but one of limitation upon opportunity to judicially enforce an existing such cause. While not a statute of limitation, in the technical sense, it is so near akin thereto as to be classed therewith and called “a statute in the nature of a statute of limitation.” Meisenheimer v. Kellogg, 106 Wis. 30, 81 N. W. 1033; Gatzow v. Buening, 106 Wis. 1, 81 N. W. 1003; Malloy v. C. & N. W. R. Co. 109 Wis. 29, 86 N. W. 130. So classed, the doctrine as to waiver of [174] tbe right to insist upon the benefit of the statute by failure to raise the question by answer or special demurrer, in case of the fact appearing upon the face of the complaint, or by answer where it does not, has been adopted in respect thereto, though the court has, in special circumstances akin to fraud preventing compliance with or inducing failure to comply with it, held that the statute is so far different from an ordinary one of limitations, that a person may estop himself from having the benefit thereof. Guile v. La Crosse G. & E. Co. 145 Wis. 157, 130 N. W. 234. We will say, in passing, that counsel erred in supposing that Arp v. Allis-Chalmers Co. 130 Wis. 454, 110 N. W. 386, modifies or adds to Troschansky v. Milwaukee E. R. & L. Co. 110 Wis. 570, 86 N. W. 156, or that Uhlenberg v. Milwaukee G. L. Co. 138 Wis. 148, 119 N. W. 810, overruled either. The latter is perfectly consistent with thte doctrine that the statute is one of limitations and extinguishes a right upon which it operates the same as other such statutes; and, at the same time, that the point cannot be insisted upon, except by answer or demurrer. A limitation right, though one which supersedes another upon which it acts, is waivable under some circumstances. By the policy of our statutes and practice it is waived by not insisting thereon by special demurrer or by answer. So it is plain, that the statutory right created by see. 4222, Stats., may be lost by estoppel, as in Guile v. La Crosse G. & E. Co., supra, or waived in the action by failure to properly raise the question. It would seem to follow, necessarily, that any mere detail of giving the notice, not affecting the real purpose of the statute, such as the particular manner of service, so long as another way is substituted whereby the requisite information is furnished and acted upon, is waivable: that if a' distinct purpose to waive appear, either expressly or inferentially, it will be effective, regardless of any element of estoppel, in the tech [175] nical sense. As to 'whether a mere irregularity in the manner of giving the notice may be waived, is one thing, failure to give any notice at all is quite a different thing. The former, it is considered, on elementary principles of natural justice, is subject to waiver. A person may waive almost any statutory right provided for. his protection. There are some limitations upon that on grounds of public policy. So, regardless of the rule as to whether a vested right created by the expiration of the period prescribed by an ordinary statute of limitation, may be lost by waiver or estoppel, except by failure to seasonably take advantage of it by pleading, the rule cannot be logically extended to details of complying with the statute involved here. There being no question as to the power to waive the statutory manner of challenging attention of the person liable for damages, as in this case, that a waiver is amply pleaded here seems likewise plain. No clearer case of waiver could be made than by receipt of and action upon an irregularly served notice characterizing such conduct by an assurance that no further notice would be required to secure adjustment of the claim. By the Gourt. — Judgment affirmed.