Susenguth v. Town of Rantoul

4 N.W. 328, 48 Wis. 334, 1880 Wisc. LEXIS 124

• Court: Wisconsin Supreme Court
• Decided: February 3, 1880
• Status: Published

Opinion

Cole, J.

The defendant demurred separately to the second and third causes of action set forth in the complaint, on the ground that each is insufficient in law. In the second count, or paragraph, the plaintiff claims damages which he alleges he has sustained in consequence of being unable personally to attend to and operate his factory for the preparation of soda water, spruce and root beer, and bottled cider, articles which he was largely engaged in manufacturing when he received the injury in the first count mentioned; and also for damages for loss of trade sustained by him by reason of not being able to supply his customers with these articles of drink. In the third count, he seeks to recover the expense incurred by him and money paid out during his sickness for medical aid and attendance and for medicines. A number of objections are taken to each count. It is said that the loss or damage stated in each does not of itself constitute' a distinct cause of action, but is the natural and proximate result of the injury set forth in the first count, and should have been included in that cause of action, by way of special damage. Doubtless this method of alleging special damage resulting froto a wrong is not usual, but it is not the most serious objection to these counts.

The gravamen of the action is plainly the injury which the plaintiff sustained through the negligence of the defendant town to keep its highway in repair. But neither count contains any averment that there was an insufficient highway in the town, which the town neglected to repair, and which caused the injury; nor is there any allegation that the matters set forth in the first count in that regard, are incorporated by reference in these counts, even if such a mode of pleading to help out a cause of action defectively stated, were allowable under the decisions in Curtis v. Moore, 15 Wis., 134; Catlin v. Pedrick, 17 Wis., 88; and Sabin v. Austin, 19 Wis., 421. But there is a still more serious objection to each of these counts. It is nowhere averred in either that notice of the injury was given the town authorities as required by chapter 86, Laws of 1875. The injury of which the plaintiff complains was received on or about the 27th of November, 1875, and of course this statute controls as to the remedy; and it is insisted by the defendant’s counsel, that the giving of the required notice was essential to the right to maintain the action. This position, we think, is sound. This giving of the notice is, undoubtedly, in the nature of a condition precedent to the right to sue the'town for damages; for the liability of the town for an injury occasioned by a defective highway is statutory, and it is undoubtedly competent for .the legislature to regulate the remedy. It .has done so by providing that no action, after this law took effect, should be had or maintained in any court in this state, against the town, for injuries received or damages sustained through the insufficiency or want, of repair of any highway or bridge, unless notice shall have first been given in writing to one or more of the town board of supervisors of the town in which the highway or bridge is situated, by the person injured or claiming damages, within sixty days of the time of the occurrence of the injury or damage, stating the place where such injury or damage occurred, describing the insufficiency or want of repair wffiich occasioned such injury or damage, and that he or she so injured or damaged will claim satisfaction of such town. If each count were otherwise good, it would be fatally defective for want of an averment that this notice was duly given before the action was commenced. See 40 Wis., 44; 46 Wis., 559 and 695.

The order overruling the demurrers to the second and third causes of action must therefore be reversed, and the cause remanded for further proceedings according to law.

By the Court. — So ordered.