Peterson v. Maul

• Citation: 32 Wis.2d 374,145 N.W.2d 699
• Parties: Gerald PETERSON, Appellant, v. Calvin MAUL et al., Respondents.
• Decision Date: 01 November 1966
• Court: Wisconsin Supreme Court

Page 699

145 N.W.2d 699

32 Wis.2d 374

Gerald PETERSON, Appellant, v. Calvin MAUL et al., Respondents.

Supreme Court of Wisconsin.

Nov. 1, 1966.

La France, Thompson, Greenquist, Evans & Dye, Kenneth L. Greenquist and Adrian P. Schoone, Racine, for appellant.

Whaley & Whaley, Racine, for respondents.

BEILFUSS, Justice.

The issue before us on this appeal is whether the defendants, Elmwood Motors, Inc., and Mutual Service Casualty Company are entitled to summary judgment based upon the affidavits submitted.

The reports of the opinions of this court abound with decisions setting forth the rules governing summary judgments. Without citation of authority it can be stated that summary judgment is a drastic remedy and should not be granted if any material facts are in dispute or if the inferences which may reasonably be drawn from the facts are doubtful. It is only when the facts or the reasonable inferences drawn therefrom lead to only one conclusion as to each necessary ultimate fact that it can be said that only a matter of law is presented which should be decided upon a motion for summary judgment. The material evidentiary facts must appear with certainty; the court cannot act as a trier of disputed facts on a motion for summary judgment; it cannot pass upon the weight and credibility of disputed facts or doubtful inferences as they appear from affidavits, other documents, or pleadings.

We stated in Leszczynski v. Surges (1966), 30 Wis.2d 534, 538, 539, 141 N.W.2d 261, 264, 265:

'To entitle one to summary judgment, sec. 270.635 (Stats.) provides the motion must be supported by an affidavit of a person who has knowledge of the facts. Such affidavit must set forth sufficient evidentiary facts including documents or copies thereof as shall, if the motion is made by the plaintiff, establish his cause of action and entitle him to judgment. Likewise, if the motion is made by the defendant, such evidentiary facts must show the defense is sufficient to defeat the plaintiff.

'Because of this requirement we have held that affidavits made by persons who do not have personal knowledge are insufficient and will be disregarded, and that affidavits made on information and belief are insufficient as they do not reach the statute of establishing evidentiary facts, and affidavits containing ultimate facts are ineffectual. We have pointed out the requirement of the statute that evidentiary facts be stated in an affidavit calls for such evidence by the affiant as would be admissible on the trial. Unless the motion is supported by such facts in the affidavit or by documents, the plaintiff's cause of action is not sufficiently established to entitle him to summary judgment.

'We have expressed this idea by stating we look first to the affidavits in support of the motion to see if a prima facie case has been made within the meaning of sec. 270.635, Stats., and if such a case has not been made we need go no farther. (Case cited.) In the event the affidavit in support of the motion does make out a prima facie case for summary judgment, we then examine the affidavits in opposition to the motion. To defeat the motion, the statute requires the opposing party by affidavit or other proof to show facts which the court shall deem sufficient to entitle him to a trial. Such proof may be less than is sufficient to prove his case, but it must be substantial and raise questions of fact. (Case cited.) This showing of a defense must be by affidavit or other proof and a defendant cannot stand on a verified answer to perform that function. Pleadings are ineffectual as proof because facts stated in an affidavit take precedence over inconsistent allegations in a pleading. (Cases cited.) Similarly, evidentiary facts stated in the affidavits are to be taken as true if not contradicted by other opposing affidavits or proof. (Cases cited.)'

The affidavits in support of the motion were made by Mr. J. S. Davison, president of Elmwood Motors, Mr. August D. Stretti, the manager of Elmwood's used car lot, and Mr. Vilas H. Whaley, one of the attorneys for Elmwood and its insurance carrier.

The affidavit of Mr. Davison sets forth that Maul was employed to wash and clean automobiles and that he was so employed on March 5th, and that his working hours were from 8 a.m. to 5 p.m. He then alleges 'upon information and belief' that Maul was operating the Pontiac at the time and place of the accident and that Maul 'was operating the 1962 Pontiac automobile without the permission of the owner and that at the time of the accident, he was outside the scope of his employment.' This is followed by an allegation of no merit of plaintiff's cause of action.

The affidavit of Mr. Davison is ineffectual for two reasons under the rule of Leszczynski: (1) the crucial allegations are on information and belief, and (2) it states ultimate and not evidentiary facts.

The affidavit of Mr. Stretti is nearly identical to the one of Mr. Davison except that he directly avers that Maul did not have permission to drive and that Maul was acting outside the scope of his employment at the time of the accident.

Again allegations or averments that Maul was 'without permission' and 'outside the scope of his employment' are ultimate and not the evidentiary facts necessary to warrant summary judgment.

The affidavit of Mr. Vilas H. Whaley, an attorney for Elmwood Motors and Mutual Service Casualty Company, sets forth the permission provisions of the insurance policy. He also avers upon information and belief that as a result of the accident in question Maul entered a plea of guilty to operating the Pontiac automobile without the consent of the owner contrary to sec. 943.23, Stats., and was sentenced upon his plea of guilty. The averment made on information and belief, however, is fortified by a copy of the record and proceedings of the court wherein Maul entered the plea. The copy of the court proceedings are other documents which can and should be considered by the court in passing upon the motion for summary judgment.

In opposition to the motion, Mr. Adrian P. Schoone, one of the attorneys for the plaintiff, filed an affidavit in behalf of the plaintiff, Peterson. This affidavit consists primarily of portions of the depositions of Mr. Davison and Mr. Stretti taken in connection with a pretrial adverse examination.

The evidentiary facts testified to in the depositions include the following: (1) The defendant Maul was employed as a clean-up man by Elmwood Motors on March 5, 1965. (2) Davison was in the hospital at the time the plaintiff was injured and had no first-hand knowledge of the incident giving rise to this lawsuit. (3) Maul had worked for...