Colton v. Foulkes
| Decision Date | 08 May 1951 |
| Parties | COLTON, v. FOULKES et al. |
| Court | Wisconsin Supreme Court |
Lueck, Skupniewitz & Lueck, Beaver Dam, for appellants.
Swan & Strub, Beaver Dam, Martin M. Morrissey, Madison, of counsel, for respondent.
In the complaint in each action plaintiff alleged:
That the defendant employer had contracted with plaintiff to make certain repairs of the roof and porch railing on his residence and to furnish all necessary materials and labor for said repairs and do all work in a good and workmanshiplike manner, with due care and skill, and that thereby it became necessary for the employer to replace and repair the porch railing; that in replacing the railing defendants in disregard of the employer's duty to securely fasten the same and use suitable and safe materials, used material and posts which were rotten and unsound, and removed only a portion of said defective parts, and notwithstanding said rotten and defective condition remaining, nailed and spliced the same to sounder materials in making extensions on said parts and that the spliced materials thus made were weakened and unreliable and liable to break and give way and pull apart upon the application of slight pressure or weight, as the defendants knew or in the exercise of due care should have known; and that defendants painted and thereby covered the defective splices and concealed the same and left the railing in a dangerous and unsafe condition; that the railing was designed to protect and keep from falling over the edges all who had occasion to frequent said porch, and that when plaintiff, shortly thereafter had occasion to use said porch and railing,--as he was about to sweep an accumulation of leaves and other debris from the eaves troughs attached to the edge of the roof,--and leaned against the railing, it gave way due to the above stated defects in its construction and caused plaintiff to fall to the ground without any fault or negligence on his part.
That defendants knew or should have known that users of said porch would come in contact with said railing and lean against it, or otherwise use it, and that defendants knew or should have known that said defects and weakened condition of said posts were covered with paint and were thereby concealed from such users, including plaintiff; that defendant contractor knew or should have known that the railing on said porch so constructed was dangerous for the use for which it was supplied, and failed to exercise reasonable care to inform the plaintiff of the dangerous condition of said posts and the careless and negligent construction thereof, and that the defendants thereby disregarded their duty when said railing was replaced to put and leave said roof and railing in a reasonably secure, and safe condition by so carelessly and negligently fastening said railing and using such unsuitable and unsafe materials; and that solely by reason of said negligence of defendants, as aforesaid and as a direct and proximate result thereof plaintiff was injured.
The defendants in demurring to the complaint claim that it does not state a cause of action in tort; but that plaintiff's cause of action is for breach of contract. In view of the facts as to defendants' negligence which are pleaded, as stated above, it is clearly obvious that plaintiff's intended cause of action is an action in tort. As stated in Weber v. Naas, 212 Wis. 537, 540, 250 N.W. 436, 437,
Although as to some of the facts alleged plaintiff had no direct knowledge but stated he has information which he believes to be true, his allegations are sufficient. When such facts are positively alleged on information and belief, and the pleader alleges that he believes them to be true, there are applicable thereto the provisions in sec. 263.25, Stats., and the conclusions stated in Rogers v. City of Milwaukee, 13 Wis. 610; Morley v. Guild, 13 Wis. 576; Fairbanks v. Isham, 16 Wis. 118; Thauer v. Gaebler, 202 Wis. 296, 232 N.W. 561.
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...upon the misfeasance-nonfeasance distinction in Darling & Co. v. Fry, 24 S.W.2d 722, 723--724 (Mo.App.1930); Colton v. Foulkes, 259 Wis. 142, 47 N.W.2d 901, 903--904 (Sup.Ct.1951) ; Adams v. Fidelity & Casualty Co. of New York, 107 So.2d 496 (La.Ct.App.1958); 3 Fletcher, Corporations (1947)......
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