Opinion
No. 385.
Argued January 31, 1972. —
Decided February 25, 1972.
APPEAL from a judgment of the circuit court for Milwaukee county: ELMER W. ROLLER, Circuit Judge. Affirmed.
For the appellants there was a brief by Cook Franke, S.C., attorneys, and Francis R. Croak and David J. Hase of counsel, all of Milwaukee, and oral argument by Mr. Croak.
For the respondent there was a brief by Niebler Niebler, attorneys, and Chester J. Niebler of counsel, all of Menomonee Falls, and oral argument by Chester J. Niebler.
This appeal concerns the constitutionality of sec. 893.155, Stats., which bars actions for injuries resulting from constructional or design defects brought more than six years after such services are performed.
The plaintiffs in this action, Harry and Florence Cohen, were injured in a fire in their apartment in the city of Milwaukee on March 23, 1969. The design for this apartment building had been approved by the Milwaukee building inspector on July 17, 1963, and construction was substantially completed before September 1, 1964.
On March 31, 1970, Mr. and Mrs. Cohen began this action in the circuit court for Milwaukee county against the owners and managers of the apartment building, Towne Realty, Inc., Nortow Corporation, Joseph J. Zilber, and S. Daniel Tishberg, and their insurance company, Royal Indemnity, appellants herein. They claimed damages resulting from the fire and the appellants filed an answer to this complaint on June 18, 1970. On February 2, 1971, appellants served a third-party complaint upon the architects who designed the building, Tannenbaum Associates, respondent herein, asserting that Tannenbaum was negligent in the design and supervision of the building.
The architects moved to dismiss the third-party complaint, asserting that the action was barred by sec. 893.155, Stats.
That section provides as follows:
"893.155 Within 6 years. No action to recover damages for any injury to property, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 6 years after the performance or furnishing of such services and construction. This limitation shall not apply to any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury for which it is proposed to bring an action."
The circuit court, Hon. ELMER W. ROLLER presiding, granted the motion and dismissed the action against respondent. Appellants then moved for reconsideration, asserting that sec. 893.155, Stats., is unconstitutional. The circuit court upheld the validity of the statute and entered judgment dismissing the third-party complaint. The owners and managers of the property now appeal from the judgment dismissing their third-party complaint.
Appellants attack the constitutionality of sec. 893.155, Stats. They claim it is invalid because it denies an individual the right to pursue an action against a contractor or architect more than six years after the construction has been completed. Furthermore, appellants contend that the section is unconstitutional because it arbitrarily excludes owners and materialmen from its coverage. We do not reach these questions because appellants do not have standing to challenge the constitutionality of sec. 893.155.
The third-party complaint filed by appellants discloses that respondent not only designed the apartment building, but also was responsible for the supervision of its construction. The statute of limitation, therefore, began running at the time the construction was completed, September 1, 1964, and would have expired on August 31, 1970.
Thus, whatever might be the constitutional argument relating to the statute as applied to appellants, the statute did not bar their action against the architects. The principal action was commenced on March 31, 1970, five months before the statute of limitations expired. Yet the third-party complaint was not served upon the respondent until February 2, 1971. Accordingly, a question is raised as to whether appellants have standing to raise the constitutional question. In United States v. Raines, a lower federal court had declared a federal statute unconstitutional even though the parties were not subject to the invalid restraint within the statute. In reversing the lower court, the United States Supreme Court said:
(1960), 362 U.S. 17, 80 Sup. Ct. 519, 4 L.Ed.2d 524.
Id. at page 21.
". . . This Court, as is the case with all federal courts, `has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' Liverpool, New York Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39. Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional."
Consistent with this proposition is the requirement, expressed many times by this court, that before an individual can attack the constitutionality of the statute he must demonstrate that its alleged constitutional infirmity has actually affected his rights.
See: Schmidt v. Local Affairs Development Dept. (1968), 39 Wis.2d 46, 60, 61, 158 N.W.2d 306, and cases cited therein.
Appellants' inability to maintain the third-party action is the result of their delay, not the statutory bar. Thus we do not make any determination on the constitutionality of this statute as against the claims of unconstitutionality made by the appellants.
By the Court. — Judgment affirmed.