*1 that where the Appellants argue, finally, interpretation evidence, contract on extrinsic is depends question one rather of fact than law therefore summary judg- ment must be If denied. the extrinsic facts were dispute taken, material any would be well particular, point but there is no in the record on this dispute motion for summary facts which make it judgment clear that sufficiently was not intended to cover policy of the operations school on janitors the school premises. there Therefore was no material issue fact be tried and summary judgment properly granted.
Since the Hardware Mutual did not policy cover the risk which the out of accident arose it is unnecessary to con- sider the other questions argued by the parties.
By Judgment affirmed. Court.— Respondent, another, Diedrich, Lukasavitz
Appellants.
February 3 March 1959. *2 were briefs &Cape there Schellinger For the appellants Powell, Wickham, & Skogstad Borgelt, attorneys, counsel, Edmund W. Powell all of CapeW. Charles Milwaukee, Mr. and oral and Mr. argument by Cape Powell.
For there was brief and oral respondent argument by Gimbel, counsel, Jack J. attorney, Seymour Gimbel both of Milwaukee. The accident occurred at 7:40 a. m. on
Dieterich, J. 1, 1957, at North One Hundred January Twenty-Sixth road, street and West Bluemound of Milwaukee. county defendant, Lukasavitz, Francis went Bachun’s tavern between 9 and 10 a. m. on December He 1956. left Bachun’s around :30 the afternoon and that length time had about 20 of beer. After Bachun’s glasses leaving tavern, he drove his automobile to Obluck’s which is three blocks an about hour Obluck’s. away, spent During that time he consumed several of beer. About m. glasses p. *3 defendant home, drove his automobile from Obluck’s to his a of distance about four miles. Lukasavitz testified that he at 10 12 or arterial en stopped route to his home. signs home, defendant had Upon arriving eat to and something then went to bed and About 9:30 m. slept. defendant p. a had sandwich and a got up, of milk. couple glasses of Pie sat around home a for while. He a had headache and stomach. The defendant left upset his home around 10:30 m., and drove p. to Obluck’s tavern where he about stayed an hour and a half. that time defendant During consumed one water, or two and but drank whiskeys only a part, because he did not feel well. 12 About :30 a. m. he went for a walk and at Bachun’s about stopped 1:30 a. m. Diedrich,
Carole the plaintiff, entered Bachun’s with two m., about 3 a girls giving a. ovation welcoming of “Happy New Year.” The had a plaintiff few drinks the during of course New Year’s Eve. Defendant and plaintiff were other, with each and about
acquainted 4:30 a. m. defendant talked and danced with plaintiff and asked to take her home. About 6 a. m. and plaintiff defendant left Bachun’s and
469 Obluck’s, a distance two or three blocks. Neither walked to of the defendant although them had difficulty walking, of Carole, arm she he his about which denied. stated had and entered the defend- had a few drinks at Obluck’s They Obluck’s, of which been front parked ant’s automobile had a. and about 7 m. He drove the the main through city avenue, to at Wisconsin made leading thoroughfares or at traffic various arterials. North least stops and West Hundred Bluemound road Twenty-Sixth One that the driver fell and hit asleep discloses testimony tree, the drive had that during guest passenger Her the car dozed. statement is that before collided just tree, it she screamed. The testified that with driver was for him avoid the tree. to impossible hitting Wickles, a officer police village employed by
James Grove, Elm the accident. He that testified investigated at he not of the the scene ordinary did see out anything were sober. that in driver and his opinion passenger witnesses, Castro, he stated that Armando One Bachun’s about at tavern had 20 drinks of soda brandy wife, His Lillian the New Year’s Eve celebration. during Castro, while Bachun’s. Armando had or drinks eight unusual, a little testified that Lukasavitz appeared Castro drink, he was drunk. he a bit and that that had quite m., that a. that he not drunk at 6 Castro stated was asked he was an automobile. Castro capable driving *4 left the when they whether Lukasavitz Carole supported tavern, answered, and he “It’s kind of he didn’t hazy,” testified that her hus- much attention. Lillian Castro pay not see how many band was drunk. She did drinks not Lukasavitz consumed and could not estimate. give any all the Bachun’s was con- very The of testimony patrons anof unreliable source. The definitions given flicting the in to witnesses “intoxication” and by respect defining “drunk” were not too enlightening. returned a verdict jury special setting up specific
amounts to the plaintiff for Pertinent damages. parts the in verdict involved this are: special appeal No. 1: to the “Question collision was Luka- prior Just savitz with to negligent respect management control? “Answered the by court: Yes. No. 2: such the
“Question Was on negligence part Lukasavitz cause of the collision?
“Answered Yes. court: No. 3: At the time entered the car “Question plaintiff was Lukasavitz under the influence of bev- intoxicating ? erage Yes.
“Answer: If No. 4: answer “Question No. 3 you question ‘Yes/ then this answer question: time entered plaintiff know, the car she did or in the exercise ordinary care known, have should she that Lukasavitz was under the influence of intoxicating beverage? No.”
“Answer: In cases: v. considering following Correz Topel 611, 253; 273 Wis. 79 W. (1956), N. (2d) Topel 495, Correz 295; Wis. 89 N. (1958), W. (2d) (2d) Olson v. Milwaukee Automobile Ins. Co. (1954), 106, 549, N. 740; Wis. 62 W. 63 N. Erick (2d) (2d)W. son 691, v. Pugh 53, 268 Wis. 66 N. (1954), (2d)W. 1, v. Dick Frey 716, 273 Wis. (1956), 76 N. W. (2d) 77 N. W. them in (2d) applying to facts case, this we have concluded justice interest of 251.09, Stats., exercise our discretion sec. under and order a new trial. reversed,
By Judgment and cause remanded Court.— for a new trial.
Martin, C. I am (dissenting). forced to dissent J. states, this matter. As the majority there is ample evidence
471 that the of the jury in sustain the finding the record to under the his automobile while defendant operating decision of intoxicating majority influence liquor. that which sustains sets out of the testimony only part finding. in at Bachun’s and defendant were the same party
Plaintiff 6, m. 5:30 or most of during from or 2:30 a. both at the bar and danced which time were drinking they From 5:30 or 6 until 7 drank they together together. car left in defendant’s at Obluck’s. Obluck’s they alone that culminated in the accident. on the ride Erickson Pugh In the case is my opinion governed 691. A reasonable 66 N. W. (2d) Wis. (1954), her mental faculties cannot associate command of person as intoxicated as the defendant without know- with person intoxicated, should found. he is have so jury ing that Brown and Mr. I am authorized to say Mr. Justice in this dissent. join Hallows Justice King Optical others, Com Copartners, Bedno d/b/a and others (Wisconsin pany, v. Fast Appellants, Optometry), Respondents. of Examiners Board 3, 1959. February 3 March