Fredrickson v. Kabat
| Decision Date | 04 December 1951 |
| Parties | FREDRICKSON, v. KABAT et al. |
| Court | Wisconsin Supreme Court |
The individual defendants take separate appeals from an order of the circuit court for La Crosse county denying the several motions of the individual defendants for summary judgment. The action was commenced January 24, 1951 and the order was entered May 23, 1951.
Other facts will be stated in the opinion.
Johns, Roraff, Coleman & Pappas, La Crosse, for appellants.
Hale, Skemp, Nietsch, Hanson & Schnurrer, La Crosse, for respondent.
This is an action for damages for personal injuries. The complaint alleges that the plaintiff was chairman of a dance given by the American Legion Post in La Crosse on New Year's Eve, 1949. He found it necessary to eject the defendant Kabat and while he did so the other defendants, who had attended the dance in a group with Kabat, conspired to and did avenge Kabat's removal by an assault on the plaintiff, with the result that plaintiff's left arm was torn from its socket and broken in two places and permanently crippled, and he sustained other injuries. The complaint does not allege the specific acts, or part in the conspiracy, of individual defendants but merely says that one or more of the conspirators attacked the plaintiff from the rear. The defendants answered separately. Each answer denies that the answering defendant engaged in any agreement or conspiracy to avenge anything or to assault the plaintiff and denies that the answering defendant did in fact assault or injure the plaintiff. After the pleadings were served the defendants severally moved for summary judgments, supporting the motions by affidavits of each defendant which denied participation by such defendant in any conspiracy and in any attack upon the plaintiff. With variations as to what the several affiants saw or did, their affidavits agree that the plaintiff took Kabat to the door of the hall and told him to go out and stay out; that the other defendants followed Fredrickson and Kabat to the door and that for some unexplained reason Fredrickson commenced to fall backwards and the defendant Ray Kotnour attempted to catch him and did succeed in getting hold of him but was unable to prevent the fall, after which Ray Kotnour and Kabat attempted to assist Fredrickson to his feet; that while they were doing so Fredrickson's son, Rich, attempted to strike Ray Kotnour and was forcibly restrained by Joe Kotnour, whereupon Rich's wife took Joe by the throat and Mrs. Joe Kotnour seized Mrs. Rich Fredrickson, while defendant Opitz took off his coat and gave it to his wife to hold. Defendants' affidavits also include extracts from the adverse examinations of the plaintiff and defendants. The examination of plaintiff shows that he cannot state any specific defendant assaulted him, only that he was attacked from the rear by a group composed of the several defendants. The testimony of the defendants upon adverse examination is to the effect that none of them know how Fredrickson got hurt. One or two saw him fall from causes unknown and others saw him lying on the floor with Kabat and Ray Kotnour standing or stooping over him and having hold of him, which acts the defendants explain as efforts to help Fredrickson.
The trial court denied the motions for summary judgment and the defendants have taken separate appeals. They submit that it was error to deny the motions for summary judgment because the complaint does not state a cause of action. If this defect exists it should have been raised by demurrer and if the demurrer was sustained the plaintiff would have been...
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Town of Blooming Grove v. City of Madison
...50, 69, 79 N.W.2d 340. A motion for summary judgment goes to the merits and does not take the place of a demurrer. Fredrickson v. Kabat, 260 Wis. 201, 204, 50 N.W.2d 381. McLoughlin v. Malnar, 237 Wis. 492, 495, 297 N.W. 370. Here the court had jurisdiction of the parties and the subject ma......
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Kafka v. Pope
...plaintiff to a determination thereof by a trial. Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 477 (1980); Fredrickson v. Kabat, 260 Wis. 201, 204, 50 N.W.2d 381, 382 (1951). Where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of la......
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Hermann v. City of Lake Mills
...failed to allege such greater value, then they should have entered a general demurrer. As was pointed out in Frederickson v. Kabat, 1951, 260 Wis. 201, 203, 50 N.W.2d 381, a motion for summary judgment is not a substitute for a demurrer and may not be used for such purpose. This is because ......
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Kielpinski v. Tomaro Contractors, Inc.
...stated in the Hermann case as follows (275 Wis. at page 543, 82 N.W.2d at page 171). '* * * As was pointed out in Frederickson v. Kabat, 1951, 260 Wis. 201, 203, 50 N.W.2d 381, a motion for summary judgment is not a substitute for a demurrer and may not be used for such purpose. This is bec......