Opinion
May 11, 1966. —
June 7, 1966.
APPEAL from an order of the circuit court for Dane county: NORRIS E. MALONEY, Circuit Judge. Affirmed.
For the appellant there was a brief by Aberg, Bell, Blake Metznet and Gerald J. Bloch, all of Madison, and oral argument by Mr. Bloch.
For the respondent there was a brief by Maurice B. Pasch and Harry Sauthoff, Jr., both of Madison, and oral argument by Mr. Sauthoff.
Action by plaintiff William W. Wurtzler against defendant Harold Miller to recover damages for personal injuries sustained by plaintiff as the result of having been bitten by defendant's dog.
Plaintiff, a police officer, sustained his injuries on June 10, 1960. The summons and complaint were served upon defendant on May 31, 1963, and the complaint alleged the following facts with respect to the incurring of plaintiff's injuries:
"4. That in pursuit of his investigation of the complaint [of vandalism] the plaintiff was stopped by a group of children on Shasta Drive, who stated that a large dog owned by people living at 1030 Shasta Drive was permitted to run loose and that they were afraid of the dog. That the plaintiff approached the house of the defendant to inform him about the complaint, and as he approached the house a German Shepherd dog, owned by the defendant, severely bit the plaintiff on the left leg above the knee, tore his uniform, and the dog proceeded to jump for the plaintiff's face and, as he stepped back, bit him on the left side just above the waist, which bite pierced the skin and tore the uniform shirt. That as the plaintiff was about to draw his gun to protect himself, the wife of the defendant appeared in the driveway and called the dog off. That she acknowledged the fact that the dog was 2 1/2 years of age named Friskey and was owned by the defendant's family. That the defendant was then charged with allowing a dog to run at large, and the plaintiff was conveyed to the Madison General Hospital by Officer Writt where stitches were required to close the wound in his leg and the wound on the left side was treated and bandaged."
On June 18, 1963, defendant demurred to the complaint on the basis that it did not state facts sufficient to constitute a cause of action. The circuit court by order dated July 9, 1965, sustained the demurrer and granted plaintiff twenty days in which to serve an amended complaint. The basis upon which the circuit court sustained the demurrer was plaintiff's failure to allege that defendant's dog was mischievous or vicious, in view of sec. 174.02, Stats., which provided:
"The owner or keeper of any dog which shall have injured or caused the injury of any person shall be liable to the person so injured . . . for all damages so done, without proving notice to the owner or keeper of such dog or knowledge by him that his dog was mischievous . . . ."
On July 20, 1965, plaintiff served an amended complaint. This in substance, as a first cause of action, realleged the matter set forth in the original complaint, with the additional allegations that the dog was of "a vicious and mischievous disposition." As a purported second cause of action the allegations of the first cause of action were realleged and these two additional paragraphs were added:
"7. That at and immediately prior to said attack, the defendant Harold Miller, was negligent in the following respects:
"(a) That the defendant failed to keep his dog on a leash or chain so as to prevent said dog from running at large;
"(b) That the defendant failed to post signs or other devices warning persons to beware of his dog;
"(c) That the defendant failed to properly control his dog so as to prevent the attack previously alleged;
"8. That the negligence of the defendant, Harold Miller, was the proximate cause of the attack and the damages and injuries resulting to the plaintiff."
Defendant interposed an answer to the amended complaint which generally denied liability under either cause of action. Additionally, the answer affirmatively alleged that plaintiff had been contributorily negligent and that both of plaintiff's alleged causes of action were not commenced within the time limitation of three years from the date of the injury, as provided in sec. 330.205, Stats.
Defendant then moved for summary judgment on the ground that both causes of action were barred by the pleaded statute of limitations. The circuit court denied summary judgment on the ground that the first cause of action in the amended complaint was not barred by the statute of limitations and refused to rule as to whether the second purported cause of action was so barred.
On September 8, 1965, plaintiff and defendant then stipulated that plaintiff's alleged cause of action for negligence should be stricken from the amended complaint. The court issued an order striking plaintiff's second cause of action and gave plaintiff sixty days to amend his complaint. Plaintiff then moved the court for leave to amend his first amended complaint to include a cause of action for negligence. The affidavit accompanying this motion alleged that this amendment was necessary (under the case of Nelson v. Hansen) so that plaintiff could meet the issue of negligence raised by defendant in his answer.
(1960), 10 Wis.2d 107, 102 N.W.2d 251.
A hearing was then held on the motion to amend the amended complaint, and the trial court allowed the amendment. Plaintiff then served his second amended complaint which is identical with the first amended complaint before the striking of the second cause of action.
On November 12, 1965, pursuant to sec. 263.225, Stats., the parties stipulated to a demurrer to plaintiff's second amended complaint. The demurrer again alleged that both of plaintiff's alleged causes of action were barred by the three-year statute of limitations.
The court entered an order overruling that demurrer on November 30, 1965. Defendant has appealed from that order.
For the purpose of this appeal we will assume without deciding that plaintiff's original complaint, which was served within the three-year period permitted by sec. 330.205, Stats., for commencing the action, was defective because of the failure to either allege: (1) That defendant's dog was mischievous or vicious, or (2) specific acts of negligence on the part of the defendant with respect to the keeping of his dog. Based on this assumption, the principal issue presented by this appeal is whether this statute of limitations bars plaintiffs cause of action because his complaint was not amended so as to state a good cause of action until after the statute had run.
Concerning point (1), see Legault v. Malacker (1914), 156 Wis. 507, 145 N.W. 1081, which holds that if a complaint alleges a dog attacked a person who was where he might lawfully be and in the exercise of ordinary care, it is unnecessary to allege that the dog was vicious or mischievous.
We conclude that the statute of limitations does not bar plaintiff's cause of action.
The defendant first contends the sustaining of the demurrer to the original complaint determined it stated no cause of action and hence the amendment made after the expiration of the period of limitations had nothing to refer back to and it stood alone and barred by the statute. We do not think the sustaining of a demurrer has or should be given such effect in respect to amendments and the period of limitations. This identical argument made by the defendant was advanced and rejected in Fredrickson v. Kabat (1953), 264 Wis. 545, 59 N.W.2d 484. In that case the plaintiff sued to recover damages for assault and battery. The defendant interposed a demurrer ore tenus. The trial court sustained the demurrer on the basis that the complaint did not state a cause of action and allowed the plaintiff to amend his complaint. The amended complaint was served and the defendants in their answer thereto raised the two-year statute of limitations for assault actions (sec. 330.21 (2)) which had intervened between the original and the amended complaint. The trial court held the amended complaint alleged the same cause of action as the original complaint so that the statute of limitations did not bar the action. On appeal, this court concluded that the amended complaint did not state a new cause of action in spite of the fact the demurrer was sustained to the original complaint.
Under the defendant's argument unless the plaintiff pleads a good cause of action prior to the expiration of the period of limitations the complaint cannot be amended; or if a defective cause of action is pleaded it may only be corrected by a voluntary amendment to properly state the cause of action before a demurrer is sustained. We think this view is an unreasonable interpretation of the effect of sustaining a demurrer and of the statement of a cause of action for the purposes of the statute of limitations.
Where the complaint is served within the statutory period but fails to state a cause of action because of an omission which is supplied by an amendment made after the expiration of such statutory period, plaintiff's cause of action is not barred by the statute. This court so held in Curtice v. Chicago N.W.R. Co. (1916), 162 Wis. 421, 156 N.W. 484, where it was stated:
"The cause of action upon which the plaintiff sought to recover damages was defectively stated in the original complaint and the defects were cured by the amendment. But one cause of action was stated. The amendment related back to the original complaint and became a part of it, hence the statute of limitations was no defense."
Id. page 424. Also see Perlson v. Dairyland Mut. Ins. Co. (1964), 23 Wis.2d 391, 398, 127 N.W.2d 69; 34 Am. Jur., Limitation of Actions, p. 216, sec. 263; 54 C.J.S., Limitations of Actions, p. 328, sec. 280.
The test of when an amendment to the complaint made is permissible was stated in Johnson v. Bar-Mour, Inc. (1965), 27 Wis.2d 271, 133 N.W.2d 748. There the court, quoting from Meinshausen v. A. Gettelman Brewing Co. (1907), 133 Wis. 95, 102, 113 N.W. 408, said that an amendment:
". . . which sets up no new cause of action or claim, and makes no new demand, but simply varies or expands the allegations in support of the cause of action already propounded, relates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point. But an amendment which introduces a new or different cause of action, and makes a new or different demand, does not relate back to the beginning of the action, so as to stop the running of the statute, but is the equivalent of a fresh suit upon a new cause of action, and the statute continues to run until the amendment is filed; and this rule applies although the two causes of action arise out of the same transaction, and, by the practice of the state, a plaintiff is only required in his pleading to state the facts which constitute his cause of action."
Johnson v. Bar-Mour, Inc., supra, at page 273. This is in accord with the general rule, see 54 C.J.S., Limitations of Actions, p. 320, sec. 279; 34 Am. Jur., Limitation of Actions, p. 211, sec. 260.
Under the principle enunciated by the second sentence of the above-quoted extract, defendant contends that the purported second cause of action of the amended complaint is barred by the statute of limitations. This is grounded on a misinterpretation of our decision in Nelson v. Hansen (1960), 10 Wis.2d 107, 102 N.W.2d 251, that an action grounded on sec. 174.02, Stats., is a separate cause of action apart from one alleging negligence against the owner of a dog who has bitten plaintiff. We thought we had made it clear in the Nelson Case that a cause of action grounded on sec. 174.02 is one in negligence, and is subject to the comparative-negligence statute where the defense of contributory negligence of plaintiff is established. Where the action is grounded on sec. 174.02 the negligence of the defendant dog owner is established when it is proved he kept a mischievous or vicious dog without proving that he knew the dog had such propensities. On the other hand negligence can be established independently of sec. 174.02, for example, by proving failure to keep the dog on a leash or confined to a pen when required by ordinance to do so. Therefore, plaintiff's amended complaint states but one cause of action although it purports to state two.
Sec. 331.045, Stats.
The sentence in the Nelson opinion which probably caused the misinterpretation appears at page 120 and reads, "Because this court has committed itself to the rule that contributory negligence in the sense of lack of ordinary care is a bar to the liability of the owner of a dog in an action under sec. 174.02, Stats., such contributory negligence should be subject to the application of the comparative-negligence statute when the negligence of the owner is proven." In so speaking of contributory negligence as a bar we were referring to our holdings prior to the adoption of sec. 331.045 in 1931.
By the Court. — Order affirmed.
Appellant defendant's principal contention is that the circuit court's order sustaining the demurrer to the original complaint served within the three-year limitation period constitutes the law of the case and conclusively establishes that such complaint failed to state a cause of action. From this hypothesis he argues that such a defective complaint is the equivalent of no complaint and therefore cannot be amended after the running of the limitation period so as to state a cause of action. The fallacy of this argument is that it erroneously assumes that in order to prevent the running of the statute of limitations a good complaint must be served within the statutory period.
The question of when an action is commenced so as to arrest the running of the statute of limitations is usually dependent upon express statutory provisions. Wisconsin is one of the many jurisdictions' which has specified by statute how an action is to be commenced so as to arrest the running of the statute of limitations by enacting sec. 330.39, Stats., which provides:
34 Am. Jur., Limitation of Actions, p. 208, sec. 254. See also 1 Am.Jur.2d, Actions, p. 615, sec. 86.
"Action, when commenced. An action shall be deemed commenced, within the meaning of any provision of law which limits the time for the commencement of an action, as to each defendant, when the summons is served on him or on a codefendant who is a joint contractor or otherwise united in interest with him."
Thus an action is commenced within the meaning of ch. 330, Stats. (Limitations of Actions), by service of a summons without a complaint. Accordingly a plaintiff who serves a defective complaint within the limitation period, but which he is permitted to amend after the running of such period so as to state a good cause of action, should be in no worse position than if he had only served a summons within such period and thereafter serves a complaint which does state a cause of action.
A complaint that is first served after running of the limitation period relates back to the summons that was served within the period. It thus establishes once and for all the nature of the cause of action for which the summons was served, and cannot thereafter be amended so as to state a different cause of action.
I am authorized to state that Mr. Justice BEILFUSS joins in this concurring opinion.