Voysey v. Labisky
| Decision Date | 03 May 1960 |
| Citation | 103 N.W.2d 9,10 Wis.2d 274 |
| Parties | Bernard C. VOYSEY, Plaintiff-Respondent, v. Robert C. LABISKY and Shirley M. Williams, Defendants-Respondents, and Ervin Alvin and Alfred R. Schultz, copartners dba Alvin and Schultz, Appellants. |
| Court | Wisconsin Supreme Court |
Lehner & Lehner, Princeton, for appellants.
Eugene A. Bitters, Ripon, for plaintiff-respondent.
McLeod, Donohue & Colwin, Fond du Lac, G. Donald Barnes, Donald L. Farr, Eau Claire, for defendants-respondents.
The rule is well established in this state that when it is shown there is a substantial issue of fact, or when the evidence on a material issue is in conflict, or if the inferences to be drawn from credible evidence are doubtful and uncertain, the motion for summary judgment should be denied. Likewise, when there is credible evidence which under any reasonable view will either support or admit of an inference in support or in denial of a claim of either party, it is for the jury to draw the proper inference and not for the court to determine which of two or more permissible inferences should prevail. Elder v. Sage, 1950, 257 Wis. 214, 42 N.W.2d 919. We have often said that the power of the courts under the summary judgment statute (sec. 270.635, Stats., 33 W.S.A. p. 309) is drastic and should be exercised only when it is plain there is no substantial issue of fact or of permissible inference from undisputed facts to be tried. De Bonville v. Travelers Ins. Co., 1959, 7 Wis.2d 255, 96 N.W.2d 509, 97 N.W.2d 392; Ondrejka v. Ondrejka, 1958, 4 Wis.2d 277, 90 N.W.2d 615; Braun v. Jewett, 1957, 1 Wis.2d 531, 85 N.W.2d 364; Udovc v. Ross, 1954, 267 Wis. 182, 64 N.W.2d 747, 66 N.W.2d 200.
From the record, including the adverse examinations, we must conclude that the trial court was in error in dismissing the complaint against Labisky and Williams. Material facts and supporting inferences upon which the trial court based this part of its decision were in dispute and require a trial. A dispute exists as to who was building the house in Ripon, Wisconsin, whether Mr. Labisky was building it for his daughter, whether he was acting as her agent, or whether Alvin and Schultz were building it. The daughter, Williams, owned the lots which were a prior gift from her father, Labisky, and she and he decided that a home should be built. Labisky apparently drew some sketches or floor plans for the construction and had them reproduced or finally drawn up by the Morgan Company. The trial court concluded that Labisky and the husband of Shirley Williams together contacted the defendants, Alvin and Schultz, who were carpenter contractors, and entered into a verbal agreement engaging them as general contractors to construct the house. But the evidence tends to show the first interview was attended by Labisky alone and later Alvin and Schultz were engaged by Labisky to do the carpentry and masonry labor which was to be paid for on a time basis monthly. They were not to be general contractors, because Labisky thought he could get work done by other contractors cheaper than Alvin and Schultz. It was understood that Labisky would make the selection of other contractors. Alvin and Schultz were instructed by Labisky where to buy the lumber, and the bills were sent to Labisky, who turned the bills over to his daughter after Labisky checked their accuracy. Materials used for the work by other contractors were not ordered by the defendants, Alvin and Schultz. The contract for the heating job with the plaintiff was made by Labisky. The evidence is conflicting, but shows that changes were ordered by Labisky for downspouts, who also gave directions for additional work to the plaintiff, and Labisky arranged for the completion of the work after the plaintiff's injury.
The trial court found that Mr. and Mrs. Williams visited the building project on occasions, but never assumed any control or supervision. This fact rests on conflicting evidence. In the view taken of the evidence by the trial court, the defendants, Alvin and Schultz, were the general contractors, and Labisky was only an agent for his daughter, Williams, limited to negotiating the original contract with the defendant, the plaintiff, and possibly other contractors. The evidence, however, admits of a reasonable inference that Labisky was building a house for his daughter as a present, that he, and perhaps both of them, were general contractors having supervision and control regardless of the extent to which they exercised their control and supervision. Contracts for the construction of the house were let piecemeal to different contractors, no one of whom had the over-all responsibility for the construction of the completed house. It is without dispute that Labisky gave his daughter $5,000 to pay the bills and also an additional $10,000, for which he took promissory notes and which notes he later cancelled.
The verified pleadings, the affidavits, and the adverse examinations set up many conflicting facts. One gets...
To continue reading
Request your trial
-
Federal Deposit Ins. Corp. v. First Mortg. Investors
...permit a different result, summary judgment should not be granted. Elder v. Sage, 257 Wis. 214, 42 N.W.2d 919 (1950); Voysey v. Labisky, 10 Wis.2d 274, 103 N.W.2d 9 (1960); Fjeseth v. New York Life Ins. Co., 14 Wis.2d 230, 111 N.W.2d 85 (1961); Frew v. Dupons Construction Co., 37 Wis.2d 676......
-
Cirillo v. City of Milwaukee
...49.2 (1966), 30 Wis.2d 534, 538, 141 N.W.2d 261.3 (166), 31 Wis.2d 1, 4, 141 N.W.2d 909.4 Sec. 270.635(2), Stats.5 Voysey v. Labisky (1960), 10 Wis.2d 274, 278, 103 N.W.2d 9; Skyline Construction, Inc. v. Sentry Realty, Inc., supra, footnote 3, 31 Wis.2d at page 4, 141 N.W.2d 909.6 (1954), ......
-
Jahns v. Milwaukee Mut. Ins. Co.
...and lead only to one conclusion, then only a matter of law is presented which should be decided upon the motion. Voysey v. Labisky (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 55......
-
Krebsbach v. Miller
...this court is not to decide the facts or to draw inferences therefrom except such as can be done as a matter of law. Voysey v. Labisky (1960), 10 Wis.2d 274, 103 N.W.2d 9. The trial court denied the motion for summary judgment on the ground there was a question of fact to be The majority of......