Opinion
June 6, 1960 —
June 28, 1960.
APPEAL from an order and a judgment of the circuit court for Milwaukee county: MICHAEL T. SULLIVAN, Circuit Judge. Reversed.
For the appellant there was a brief by Phillips, Phillips, Hoffman Lay, and oral argument by Bertram J. Hoffman and Stewart G. Honeck, all of Milwaukee.
For the respondent there was a brief by Walter J. Mattison, city attorney, and F. Ryan Dully, Jr., assistant city attorney, and oral argument by Mr. Dully.
Action to recover damages for personal injuries. The complaint alleges that on January 7, 1959, the defendant Tomaro Contractors, Inc., while doing certain contracting work for the defendant city of Milwaukee, was operating a compressor owned by the city; that as plaintiff was walking on the public sidewalk past said compressor the operator, an employee of Tomaro, turned on the air. The air hose of the compressor became loose and an iron coupling therefrom became disconnected and struck the plaintiff on the head, causing the injuries; that both defendants, by their duly authorized agents and employees, were negligent in the operation of the compressor in several respects and that said negligent acts were the proximate cause of the injuries sustained by the plaintiff; and that a notice of injury and claim for damages on behalf of the plaintiff was properly served upon and filed with the city.
The answer of the city alleged that it had no knowledge or information sufficient to form a belief as to the facts stated in the complaint and therefore denied the same. In a cross complaint by the city against Tomaro Contractors, Inc., the city alleged that Tomaro entered into a contract with the city for tunneling and trenching under the city hall, and that the contract contained the following covenant:
"And the contractor and surety covenant and agree that they will save and indemnify and keep harmless the city against all liability, judgments, costs, and expenses, which may in anywise come against the city in consequence of the granting of this contract, or which in anywise result from the carelessness or neglect of the contractor, or the agents, employees, or workmen of the contractor in any respect whatever; and in every such case where judgment is recovered against the city by reason of the carelessness or negligence of the contractor, or his agents, employees, or workmen, and if notice has been given of the pendency of such suit within ten days after the commencement thereof, such judgments shall be conclusive against the contractor and surety, not only as to the amount of damages. but as to their liability to the city."
The cross complaint further alleged that any damage to the plaintiff as set forth in his complaint was caused solely and proximately by the negligence of the defendant Tomaro, who was, pursuant to the contract, liable for any judgments, costs, and expenses which may accrue against the city in consequence of the action.
The answer of Tomaro Contractors, Inc., denied knowledge or information sufficient to form a belief as to the allegations of the complaint and therefore denied the same. As a separate defense Tomato alleged that under the terms of its contract with the city, the city agreed to furnish, maintain, and repair the compressor; that Tomato had no authority to maintain or repair the same; that the compressor was under the exclusive management and control of a foreman employed by the city for that purpose; that its location was determined by the city foreman and was placed there pursuant to his instructions and directions; that the project was in the furtherance of and in fulfilment [fulfillment] of a governmental function by the city and any immunity from suit existing in favor of the city likewise extends to Tomato. By its answer to the cross complaint of the city, Tomaro alleged that its liability under the provision of the contract pleaded by the city in its cross complaint was intended by the parties to cover only such liability as might arise from the negligence of Tomaro; that the compressor was furnished by the city and was under the exclusive management and control of a city foreman, and its location was determined by the city foreman; that it was the duty of the city under the terms of the contract to inspect the compressor and to maintain the same in a good state of repair and that the failure and neglect of the city, by its agents, servants, and employees, was the sole and proximate cause of plaintiff's alleged injuries.
The city moved for summary judgment based upon the indemnity provision in the contract. An affidavit by a foreman of Tomato in opposition to the motion for summary judgment stated that the compressor was the property of and owned by the city; that under the contract the compressor was to be maintained by the city and in pursuance thereof the city handled all repairs and maintenance thereof; that the only thing Tomaro was permitted to do by the city was to start and stop the compressor; that originally the compressor was placed in the street but about the middle of November, 1958, the city foreman ordered the compressor to be placed on the sidewalk so as to leave room for people to park at the parking meters.
The trial court filed a memorandum decision in which he directed the city to prepare an order granting its motion dismissing the complaint as to it, not on the grounds advanced, but because the plaintiff was using the sidewalk from which the danger arose, and the city was operating in a governmental capacity toward the plaintiff at the time and place of his alleged injury. An order was entered on December 28, 1959, granting the motion for summary judgment and dismissing the complaint as. to the city of Milwaukee. On January 15, 1960, a judgment was entered dismissing the complaint of the plaintiff as against the city, together with costs. The plaintiff appealed from both the order and the judgment.
The grounds advanced by the city in support of its motion for summary judgment were insufficient and the trial court was correct in refusing to grant summary judgment thereon.
The city did not adopt the correct procedure. The complaint is based upon allegations of negligence. It does not plead violation of sec. 81.15, Stats., referring to defective streets and sidewalks, nor does it allege a nuisance. As framed, the complaint would be subject to demurrer or to a motion to make the complaint more definite and certain. However, the summary-judgment procedure is not calculated to supplant a demurrer. Hermann v. Lake Mills, 275 Wis. 537, 82 N.W.2d 167; Blooming Grove v. Madison, 275 Wis. 328, 81 N.W.2d 713; Ausen v. Moriarty, 268 Wis. 167, 67 N.W.2d 358; Batson v. Nichols, 258 Wis. 356, 46 N.W.2d 192. One practical reason therefor is stated in the Hermann Case as follows (p. 543):
"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 where a demurrer is sustained the plaintiff, except in exceptional situations not necessary to be considered here, is given an opportunity to plead over, which right is denied when a summary judgment dismissing the complaint on the merits is entered."
The plaintiff contends that the complaint is sufficient to allege a cause of action under the provisions of sec. 81.15, Stats., of which both the trial court and this court may take judicial notice, or that it sufficiently alleges a cause of action based on nuisance. Because the trial court granted the summary judgment on grounds other than those advanced by the city, the plaintiff states that it had no opportunity to present affidavits or argue the questions of nuisance or statutory liability.
The record presented to the trial court is insufficient to support his reason for granting the summary judgment. The record does establish that the compressor was located on the sidewalk and that plaintiff was using the sidewalk adjacent to it. However, it does not follow as a matter of law that the relationship of governor and governed existed between the plaintiff and the city at the time of his alleged injuries. Apparently the work being done under the contract was not on the sidewalk but on the adjacent city hall. A more complete record will be required before the question can be answered as a matter of law. Therefore, the trial court was in error in granting the city's motion for summary judgment.
Upon remand of the record the plaintiff shall be given an opportunity to amend his complaint and the defendants will have the usual time thereafter to file appropriate pleadings.
By the Court. — The order and judgment appealed from are reversed. Cause remanded for further proceedings consistent with this opinion.
HALLOWS, J., took no part.