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HAUSE v. SCHESEL

No. 243.

42 Wis.2d 628 (1969)

167 N.W.2d 421

HAUSE and others, Plaintiffs, v. SCHESEL and others, Defendants: SCHESEL, by Guardian ad litem, Third-Party Plaintiff and Respondent: DAIRYLAND INSURANCE COMPANY, Third-Party Defendant: LIDDICOAT and others, Third-Party Defendants and Appellants.

Supreme Court of Wisconsin.

Decided May 9, 1969.

Attorney(s) appearing for the Case

For the appellants there were briefs by Chambers, Nash, Pierce & Podvin and Francis J. Podvin, all of Wisconsin Rapids, attorneys, and Ross, Stevens, Pick & Spohn and Jack F. Olson, all of Madison, of counsel, and oral argument by Francis J. Podvin and Jack F. Olson.

For the respondent Gordon B. Schesel there was a brief by Hosek, Zappen, Meissner & Oestreicher and John C. Oestreicher, all of Marshfield, and oral argument by John C. Oestreicher.

For the respondent Dairyland Insurance Company there was a brief and oral argument by Karl F. Peplau of Augusta.

ROBERT W. HANSEN, J.

This case, as to the matters covered by this appeal, involves two causes of action brought in the alternative. One is based on the law of contracts. The other on the law of torts. The complaint is an either/or proposition, and there is nothing wrong with that. However, the result must follow the request in being founded either on contract or tort liability. It is either fish or fowl, not both.

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