Siebert v. Jacob Dudenhoefer Co.

The following opinon was filed June 6, 1922: DoerfleR, J. Appellant assigns as errors: (1) the sustaining of defendant’s demurrer ore terms; and (2) the refusal of the trial court to vacate the judgment of dismissal. Sub. (5), sec. 4222, Stats., among other things provides: “No 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 . . . shall be served upon the person or corporation by whom it is claimed such damage was caused.” It has been held by this' court that service of the notice provided for in sub. (5), sec. 4222, Stats., is a condition precedent to the maintenance of any action to recover damages for an injury to the person. Klingbeil v. Saucerman, 165 Wis. 60, 160 N. W. 1051. In order, therefore, to comply with said section of the statutes, inasmuch as the action itself was not commenced within the two-year period, it must appear that the notice referred to was served within two years after the happening of the event causing the damages. By referring to the complaint it will appear that it is alleged that the notice of injury was served within two years from the date of the injury. The limitation began the moment the cause of action accrued, which date was the day of the happening of the injury.- The rule is well established on an issue of limitation where the time is to be computed from a certain date, that in the computation the day of the date is to be excluded, and where the computation is from a certain event the date of that event must be included. McCulloch v. Hooper, 7 N. J. Law Jour. 336; Presbrey v. Williams, [195] 15 Mass. 193; Aultman & Taylor Co. v. Syme, 163 N. Y. 54, 57 N. E. 168. Sub. (24), sec. 4971, Stats., reads as follows: “The time within which an act is to be done as provided in any statute, when expressed in days, shall be computed by excluding the first day and including the last.” This statute evidently creates an exception to the general rule, applicable only where the time limited is expressed in days, and clearly implies that where the limitation is expressed in weeks, months, or years the first day is included in the computation. What is said in Aultman & Taylor Co. v. Syme, 163 N. Y. 54, 57 N. E. 168, is strictly applicable here: “Had the legislature intended to apply that method to periods of years, it could have disposed of the whole subject in a single sentence by saying that the day from which any specified period of time is to be reckoned shall be excluded from the reckoning. But it did not say that. The silence of the statute in this regard is therefore significant of the legislative intent to exclude from its operation other periods than those enumerated.” In the notice of injury introduced in evidence specific reference is made to the fact that the injury occurred on the 6th day of June, 1916. The notice itself was served on the 6th day of June, 1918. The complaint alleged: “That before the commencement of this action and within two years from the date of said injury, to wit, on the 6th day of June, 1918, the plaintiff caused to be served upon the defendant a written notice stating the time and place where said damage and injury occurred,” etc. Applying the rule of computation as above referred to in the authorities, the day of the happening of the injury must be included in the computation, and therefore the statutory time within which the notice could be served expired on the 5th day of June, 1918. [196] It therefore appears conclusively that the condition precedent to the maintenance of the action, as required by sub. (5), sec. 4222, Stats,, has not been complied with, and that the notice in question was not timely. No application to amend the complaint before the dismissal of the action was made by the plaintiff, and had a proper, showing upon such application been made the same would undoubtedly have been granted. Plaintiff also assigns as error the refusal of the trial court to vacate its judgment of dismissal, based upon plaintiff’s motion and affidavit above referred to, and relies on sec. 2832, Stats., under and pursuant to which such judgment may be vacated when entered through the mistake, inadvertence, surprise, or excusable neglect of the aggrieved party. The motion under this sectiop is addressed to the discretion of the court. Kalckhoff v. Zoehrlaut, 43 Wis. 373; Seymour v. Chippewa Co. 40 Wis. 62. Defendant in its answer expressly pleaded that the plaintiff failed to comply with the provisions of sub. (5), sec. 4222, Stats. Thus plaintiff’s attention was expressly directed to the very point in issue, but no application was made to amend the complaint, and in fact such application was not made even after the demurrer ore tenus had been sustained and before the order was made and entered dismissing plaintiff’s complaint. So that plaintiff certainly cannot rely upon any claim of surprise, inadvertence, or excusable neglect. The only other cause for the vacation of the judgment is for mistake. The application on that ground must be considered in connection with the allegations in the affidavit. To support this contention it is not averred that the plaintiff has since the dismissal of the action discovered an incident, event, or circumstance which has enabled him to refresh his mind, or which has aided him in fixing the date of the happening of the injury, but in that regard he merely alleges that he is convinced in his own mind that the poisonous [197] substance was sold to him on a day later than the 6th day. of June, 1916, without even specifying a date. In other words, the plaintiff’s effort to fix a specific date is based merely upon speculation. We therefore conclude that the plaintiff has not brought himself properly under the provisions of sec. 2832, Stats., in order to entitle him to relief, and that the ruling of the trial court in exercising its discretion cannot be disturbed. On the oral argument plaintiff’s counsel suggested to the court that the complaint might be held sufficient as stating a cause of action for damages for breach of contract, and that in taking such view of the case no notice as is provided in sub. (5), sec. 4222, Stats., was necessary. That such contention cannot be maintained is decided in Klingbeil v. Saucerman, 165 Wis. 60, 160 N. W. 1051. The order and judgment of the circuit court are therefore affirmed. By the Court. — It-is so ordered. A motion for a rehearing was denied, with $25 costs, on October 10, 1922.