Maxwell V. Johnson

The following opinion was filed March 13, 1917: Rosenberry, J. It is contended that the judgment is erroneous because no notice of injury was served by the plaintiff upon defendants, and that the action as against the [464] defendants, the receivers of the Chicago & Milwaukee Electric Railroad Company, was not begun within two years from the happening of the accident as required by sec. 4222, Stats. It appears that there are two corporations, the Chicago & Milwaukee Electric Railway Company, operating wholly within the city of Milwaukee, and the Chicago & Milwaukee Electric Railroad Company, of which Messrs. Johnson. Osborne, Hanna, and Moore are receivers, which operates cars between Kenosha and Milwaukee, and under an operating contract with the Chicago & Milwaukee Electric Railway Company operates such interurban cars over the tracks of the railway company in the city of Milwaukee. The action was begun by service of a summons upon the Chicago & Milwaukee Electric Railway Company. The complaint was served on November 18, 1913. On April 8, 1914, plaintiff caused an amended summons and complaint to be served upon J. ■Johnson, who was the ticket agent representing the Chicago •fe Milwaukee Electric Railway Company and the receivers of the Railroad Company. The title was as follows: Sarah Maxwell v. Chicago & Milwaukee Electric Railway Company, W. O. J ohnson, W. Irving Osborne, D. B. Hanna, and George G. Moore, as Receivers of the Chicago & Milwaukee Electric Railway Company. Neither the receivers nor the Chicago & Milwaukee Electric Railroad Company made any appearance or in any way answered the amended summons and complaint, and in this state of the record the case was brought to trial. During the course of the trial, it being apparent that the Chicago & Milwaukee Electric Railway Company had no interest in the litigation, the case as to it was dismissed. At the close of the trial, there being a verdict in favor of the plaintiff, the trial court directed judgment notwithstanding the verdict unless plaintiff should within twenty days after service of a copy of the order -elect to amend the summons and complaint and return of service as to the persons named in the amended summons and complaint and return therein as receivers of the Chicago & Milwaukee Electric [465] Railway Company so as to describe such persons as receivers of the Chicago & Milwaukee Electric Railroad Company, and further ordered that, if the plaintiff shall elect to so amend the process, pleadings, and return of service, the defendant shall have twenty days after service of such amendment in which to answer such amended complaint. The-order was dated April 3, 1915, and on the 29th day of May, 1915, a second amended summons and complaint were served upon the Chicago & Milwaukee Electric Railway Company and upon W. 0. Johnson, IF. Irving Osborne, D. B. Hanna, and George G. Moore as receivers of the Chicago & Milwaukee Electric Railroad Company. The receivers appeared and answered and alleged that no notice whatever was served by or on behalf of the plaintiff upon the defendants J ohnson, Osborne, Hanna, and Moore, or either of them, as receivers, within two years from the 25th day of September, 1912, being the day of the accident. Claim is made that the defendant Railroad Company appeared upon the first trial and participated in the trial, and that by reason of such appearance it waived any defect in the summons and complaint and the return of service. We do not think it necessary to determine that question. It clearly appears that on April 8, 1914, and within two years from the happening of the accident, the first amended summons and complaint were served upon one J. Johnson, who as a ticket agent representing the receivers was a proper person upon whom to make such service. It is true that 17. 0. J ohnson and his codefendants were described as receivers of the Chicago & Milwaukee Electric Railway Company. However, the allegations of the amended complaint were such that it could have no application to any other corporation than the Chicago & Milwaukee Electric Railroad Company and its receivers. The Chicago & Milwaukee Electric Railway Company was not in the hands of receivers, nor were Johnson and his codefendants receivers of any other company operating cars than the Chicago & Milwaukee Electric Railroad Com [466] pany. Whether or not the amended complaint was sufficient to bring Johnson and his codefendants in as receivers of the Railroad Company, it was certainly a sufficient notice of injury under sec. 4222, Stats. It conclusively appeal’s that Johnson and his codefendants were in no manner whatever misled bythe misdescription whereby the company of which they were receivers was described as the railway company instead of the railroad company. We must hold, therefore, that there was a sufficient notice and that the defendant J ohn-son and his codefendants were properly in court. It is next contended that the verdict is against the overwhelming weight of the evidence. In view of the fact that two juries have believed the testimony of the plaintiff, we cannot say that it is unbelievable. During the course of the trial the defendants offered the evidence of certain police officers of the city of Milwaukee in reference to the conduct and habits of the plaintiff as bearing upon her credibility, a proper foundation therefor having been laid. In this connection the defendants offered to show by the records of the municipal court of Milwaukee county that plaintiff had pleaded guilty to the charge of drunkenness and disorderly conduct. The court admitted the testimony of the police officers but excluded the plea. We are agreed that the exclusion of this evidence was clearly error. However, the court having rendered judgment upon the verdict only on condition that the plaintiff should remit $2,000 therefrom, thereby reducing it from $3,250 to $1,250, the justices participating are evenly divided on the question of whether or not the error was prejudicial. Under these circumstances, the other questions having been determined adversely to defendants’ contentions, the judgment must be affirmed. By the Court. — Judgment affirmed. Eschweileb, J., took no part. The appellants moved for a rehearing. [467] In support of the motion there were briefs ,by Edgar L. Wo-jd of Milwaukee, attorney for tbe appellants, and Bull & Johnson and A. L. Gardner of Chicago, of connsel. Eor tbe respondent, in opposition to tbe motion, there was a brief by A. J. Bedding and Rubin, Fawcett & Butcher, attorneys, and Paul R. Newcomb, of counsel, all of Milwaukee. Tbe motion was denied, with $25 costs, on May 15, 1917.