De Bauche v. Knott
| Decision Date | 16 June 1975 |
| Docket Number | No. 434,434 |
| Citation | 69 Wis.2d 119,230 N.W.2d 158 |
| Parties | James L. DE BAUCHE, by his guardian ad litem, Paul L. Axel, et al., Respondents, v. Michael KNOTT et al., Defendants, Bruce Manser et al., Appellants. |
| Court | Wisconsin Supreme Court |
Simarski, Goodrich, Brennan & Stack, Milwaukee by Edward J. Simarski and Charles W. Collins, Milwaukee, of counsel, for appellants.
Humke, Poole & Axel, Sheboygan, for respondents.
This is an appeal from an order overruling demurrers to the complaint by defendants-appellants Bruce Manser and his insurer, The Ohio Casualty Insurance Company (Ohio Casualty). The basis of the demurrers was that the complaint did not state facts sufficient to constitute a cause of action against Bruce Manser or Ohio Casualty.
The material allegations of the complaint are as follows:
'That, on June 3, 1969, at approximately 7:30 P.M., the defendant Michael Knott, then 14 years of age, was the owner of a Crossman BB rifle;'
'That, at said time, the plaintiff James L. De Bauche and a friend, Kenneth Halverson, were playing at the site of the construction of a home in the 3000 block of South 19th Street, Sheboygan, Wisconsin, when the defendants Michael Knott and Bruce Manser approached said area and engaged in playing with and conducting horseplay with the plaintiff and Kenneth Halverson;'
'That, during said period of playing, by agreement between the defendants Michael Knott and Bruce Manser, the defendant Bruce Manser obtained the BB gun owned by the defendant Michael Knott from the home of Michael Knott, with the intention of said defendants Michael Knott and Bruce Manser shooting said BB gun at or in the direction of the plaintiff James L. De Bauche and Kenneth Halverson with the intent to frighten the plaintiff and Kenneth Halverson;'
'That, with such intentions to frighten the plaintiff, and by agreement between the defendants Michael Knott and Bruce Manser, the defendant Michael Knott repeatedly shot the loaded BB, gun in the direction of the plaintiff James L. De Bauche, striking said plaintiff;'
'That, as a proximate result of the negligence on the part of the defendants Michael Knott, Bruce Manser and Edward J. Knott or either of them, the defendant Michael Knott caused a BB from the BB gun he was firing to strike the plaintiff James L. De Bauche in the left eye, causing injury thereto which necessitated medical attention, hospital care, and surgery, and caused said plaintiff pain, suffering, inconvenience and the loss of sight;'
The complaint further alleges that the defendant Bruce Manser was negligent in permitting Michael Knott to point and aim the BB gun at the plaintiff James L. De Bauche, in permitting Michael Knott to fire the BB gun with knowledge that the plaintiff was in the direction of fire, in permitting Michael Knott to fire the BB gun with knowledge that the plaintiff was in the vicinity without first ascertaining whether said BB gun could be fired without creating an unreasonable risk of harm to the plaintiff and in permitting Michael Knott to fire the BB gun without first taking precautions for the safety of the plaintiff, whom he knew or should have known was in the area of danger.
A hearing on the demurrers was held on March 5, 1973, and on April 17, 1973, the trial court entered an order overruling the demurrers, from which the defendants Michael Knott and Ohio Casualty appeal.
The question before us is, did the trial court err in overruling the defendants' demurrers to the complaint? The rules for a court to apply in ruling on a demurrer are very well-settled. The demurrer tests only the legal sufficiency of the pleading; all material statements of fact are considered true, while legal conclusions are not. As this court said in Scheeler v. Bahr (1969), 41 Wis.2d 473, 476, 164 N.W.2d 310, 311:
The point is not whether the complaint states the cause of action the plaintiff believes he has pleaded. The demurrer must fail if there is any cause of action made out. Milwaukee County v. Schmidt, Garden and Erikson (1969), 43 Wis.2d 445, 453, 168 N.W.2d 559. As this court said in Nelson v. La Crosse Trailer Corp. (1949), 254 Wis. 414, 417, 37 N.W.2d 63, 64:
The duty of the court is not to hypothesize whether the plaintiff can actually prove his allegations; that is the task of the trier of fact. The complaint withstands the challenge of the demurrer when the facts alleged, if they were proved, would constitute a cause of action. Theune v. Sheboygan (1973), 57 Wis.2d 417, 420, 204 N.W.2d 470.
The parties to this appeal, as well as the trial court, treated this suit as a cause of action sounding in negligence; we agree with them.
Citing the allegations in the complaint as to the failure of Bruce Manser to take certain action with respect to the plaintiff at the time the gun was being fired, the defendants state that the question on appeal is, 'Did Bruce Manser a lad of 14 years of age, owe a duty to James L. De Bauche, to restrain Michael Knott in the manner and method in which he operated or used the BB gun?' Having phrased the question in this manner, the defendants then argue that there was no duty owed by Bruce Manser to interfere in any way with Knott's handling of the BB gun or to take any of the specific...
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