Caraway v. Leathers

Decision Date20 April 1973
Docket NumberNo. 61,61
Citation206 N.W.2d 193,58 Wis.2d 321
PartiesMary Jean CARAWAY, as administratrix of the Estate of Eulalia A. Smith, Deceased, Plaintiff, v. Danny W. LEATHERS et al., Defendants, and Milwaukee Mutual Insurance Company, a Wisconsin insurance corporation, Defendant-Appellant, and Howard D. Finnegan and American States Insurance Company, a foreign corporation, Respondents.
CourtWisconsin Supreme Court

Cannon, McLaughlin, Herbon & Staudenmaier, Milwaukee, for plaintiff; L. William Staudenmaier, Milwaukee, of counsel.

Frisch, Dudek, Slattery and Denny, Robert E. Hackett, Jr., Milwaukee, for respondents; C. Michael Hausman, Milwaukee, of counsel.

HALLOWS, Chief Justice.

The trial court denied the motion for summary judgment solely on the ground the pleadings created a material issue of fact of whether Danny Leathers had permission to drive his father's car; this was error. Of course, pleadings must create a material issue, 1 but this conflict in the pleadings is not a sufficient basis to deny summary judgment. The issue created by the pleadings must be supported by sufficient evidentiary facts in proper affidavit form to create a material issue of fact in the proposed evidence. For this purpose, pleadings may not be considered as evidence or other proof. Marshall v. Miles (1972), 54 Wis.2d 155, 161, 194 N.W.2d 630; Milwaukee County v. Schmidt (1968), 38 Wis.2d 131, 156 N.W.2d 493; McCluskey v. Thranow (1966), 31 Wis.2d 245, 142 N.W.2d 787. As stated in Weber v. Hurley (1961), 13 Wis.2d 560, 109 N.W.2d 65, sec. 270.635(2), Stats. 2 requires 'evidentiary facts' and the statute would be meaningless if conclusions of law or statements of ultimate facts in the pleadings were held to raise issues for the jury on motion for summary judgment.

However, this error does not require reversal if there exists in fact an issue created by the evidentiary facts presented by the affidavits. Prior to the bringing of the motion, Mr. and Mrs. Leathers, Danny Leathers, and six other prospective witnesses were adversely examined. Their adverse examinations were made a part of the motion for summary judgment and the pertinent parts thereof extracted and called to the court's attention in accordance with the requirements of Hyland Hall & Co. v. Madison Gas & Electric Co. (1960), 11 Wis.2d 238, 105 N.W.2d 305, and Dottai v. Altenbach (1963), 19 Wis.2d 373, 120 N.W.2d 41. This pertinent testimony, however, does not raise any material issue of fact on the only issue presented, namely, the permission of Danny Leathers to drive the car at the time of accident.

At one of these adverse examinations, Danny Leathers testified that just prior to the accident, he was at his sister's wedding reception. He asked his father if he could leave the reception and go to their farm, and his father replied 'trot along.' Danny did not interpret this as meaning he could take his father's car, since he had not said anything about using the car. He knew he was not supposed to take the car, but did anyway, finding the keys underneath the seat of the car. Although he did not have a driver's license, Danny had previously driven the car on the family farm and, unknown to his parents, had driven a few times on public roads. He knew he did not have his father's permission on the date of the accident.

Danny's father, Kenneth Leathers, testified at discovery that Danny had taken the car without his permission on the day of the accident. He did not know that Danny had ever previously taken the car without permission. Danny's mother, Marilyn Leather, testified that she did not know Danny was driving the car until after the accident.

Also examined at discovery were James D. Glassburn and Donald Simpsen, both of whom overheard the conversation between Danny and his father relative to Danny's going to the farm. Mr. Glassburn testified that Mr. Leathers told Danny he could leave, 'you're doing a good job, just hop to it,' or words to that effect. The word 'walk' or 'hot-footing' was in the conversation, but no mention was ever made as to use of the car. Mr. Simpsen, on the other hand, testified that Danny had asked if he could use the car, but his father replied, 'Hell no, you can walk to the farm.'

Two girls who occupied the car with Danny as passengers, Jeanne Phillips and Esther Miller, also were adversely examined. Miss Phillips had no conversation with Danny relating to his permission to drive the car. Miss Miller stated she asked Danny after the accident whether he had permission, but he would not say. However, Miss Miller's father, Rev. Norbert Miller, testified that he advised Danny if he had permission to admit it. He further testified that he asked Mr. Leathers whether he had given the boy permission and Mr. Leathers replied he told his son to 'trot along.' Mr. Leathers then added that 'trot along could mean go on your own two feet if somebody wanted to interpret it that way.' Rev. Miller interpreted this as meaning Mr. Leathers had in fact given Danny permission to drive. The Reverend's wife testified her husband was under the impression that Danny had driven with permission.

The rules governing summary judgment are well known. Under the rule of Hyland Hall & Co. v. Madison Gas & Electric Co., supra, and Dottai v. Altenbach, supra, we first examine the moving papers and documents to determine whether the moving party has made a prima facie case for summary judgment under sec. 270.635(2), Stats., and if he has, we then examine the opposing party's affidavits and other proof to determine whether facts are shown which the court deems sufficient to entitle the opposing party to a trial. If the material facts are not in dispute and if the inferences which may reasonably be drawn from the facts are not doubtful and lead only to one conclusion, then there is presented only a matter of law, which should be decided upon the motion. Voysey v. Labinsky (1960), 10 Wis.2d 274, 103 N.W.2d 9; Rabinovitz v. Travelers Ins. Co. (1960), 11 Wis.2d 545, 105 N.W.2d 807; Bond v. Harrel (1961), 13 Wis.2d 369, 108 N.W.2d 552; McWhorter v. Employers Mut. Casualty Co. (1965), 28 Wis.2d 275, 137 N.W.2d 49; Leszczynski v. Surges (1966), 30 Wis.2d 534, 141 N.W.2d 261; American M. L. Ins. Co. v. St. P.F. & M. Ins. Co. (1970), 48 Wis.2d 305, 179 N.W.2d 864.

Milwaukee Mutual has made more than a prima facie case for non-permission. American States' affidavit in opposition to the motion also relies on the testimony of the examination, adds no evidentiary facts and raises only the question of credibility of witnesses and the possibility of drawing a different inference from the facts. Credibility of witnesses is only important...

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