State ex rel. Northwestern Mutual Life Insurance v. Circuit Court for Waushara County

162 N.W. 436, 165 Wis. 387, 1917 Wisc. LEXIS 115

• Court: Wisconsin Supreme Court
• Decided: April 24, 1917
• Status: Published

Opinions

Winslow, C. J.

It is plain tliat the petitioner was entitled to have the action removed to Milwaukee county unless some part of the “cause of action” arose in Waushara county.

This court has held that the words “cause of action” as used “include the act or omission without which there would he no cause of action or right of recovery.” Bruil v. Northwestern Mut. R. Asso. 12 Wis. 430, 39 N. W. 529; Hosley v. Wis. O. F. Mut. L. Ins. Co. 86 Wis. 463, 57 N. W. 48. Whether this proposition be entirely logical may perhaps be doubted, but we do not find it necessary to question it now. Applying it to the present case, we find no “acts or omissions” occurring in Waushara county except the drawing and mailing of the proofs of death and the appointment of the plaintiff as administratrix of the estate. Neither the drawing nor mailing of the proofs of death in Waushara county can be considered as an act essential to a recovery; it is the service of them on the company which is the sine qua non of a recovery, and this took place in Milwaukee county. As to the appointment of the administratrix the question is somewhat different. It is quite true that by the great current of authority a “cause of action” does not “accrue,” within the meaning of statutes of limitation, until a person is in existence with a present right to sue upon it. 1 Wood, Lim. (4th ed.) § 117; 25 Cyc. 1067; American R. Co. v. Coronas, 230 Fed. 545. The ease last named contains an exhaustive review of the authorities on the question. This rule was recognized by this court in the case of Stehn v. Hayssen, 124 Wis. 583, 102 N. W. 1074.

There is, however, a substantial difference in meaning between the words “arise” and “accrue.” A cause of 'action may logically be said to arise when the facts necessary to demonstrate the defendant’s breach of duty and liability to some person or group of persons or interests have' all come into existence, even though the person or group be not at the time competent to sue, but must sue through a representative to be appointed later, while it cannot be said that a cause of action has “accrued” until there was a person in existence to whom it can accrue, for the very plain reason that a thing must accrue to somebody. Accrue means to increase, to augment, to add to something already existing by way of increase.

A complete cause of action certainly arises in favor of a man’s estate when he meets death through the actionable negligence of another or if he dies owning a note which falls due immediately after the death; it is in abeyance; however, until the appointment of an administrator, when it “accrues” to such administrator.

The appointment of the administrator neither adds to nor takes from the essential parts of a cause of action; it simply designates the person who is to enforce it. If it were to be held to be an essential part of the cause of action, then it would necessarily follow that the cause of action would céase to exist in case of the administrator’s death, resignation, or removal, and that a new and different cause of action would accrue to the next administrator. It is plain that this cannot be. There is but one cause of action, no matter how many administrators may in succession prosecute it.

It is to be remembered that under our statute (sec. 4251) the cause of action becomes barred if the appointment of an administrator be delayed until double the limitation period otherwise prescribed by law.

By the Court. — Adjudged that the motion to quash be overruled and that the peremptory writ of mandamus issue as prayed in the petition. Ho costs to be taxed.