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CARAWAY v. LEATHERS

No. 61.

58 Wis.2d 321 (1973)

206 N.W.2d 193

CARAWAY, Administratrix of the Estate of Eulalia Smith, Plaintiff, v. LEATHERS and others, Defendants: MILWAUKEE MUTUAL INSURANCE COMPANY, Defendant and Appellant: FINNEGAN and another, Respondents.

Supreme Court of Wisconsin.

Decided April 20, 1973.

Attorney(s) appearing for the Case

For the appellant there were briefs by Cannon, McLaughlin, Herbon & Staudenmaier, attorneys, and L. William Staudenmaier of counsel, all of Milwaukee, and oral argument by L. William Staudenmaier.

For the respondents there was a brief by Frisch, Dudek, Slattery & Denny, attorneys for defendants-respondents Howard D. Finnegan and American States Insurance Company; Robert E. Hackett, Jr., attorney for plaintiff-respondent Mary Jean Caraway; and C. Michael Hausman of counsel, all of Milwaukee; and oral argument by Mr. Hackett for plaintiff-respondent and James D. Friedman of Milwaukee for defendants-respondents.

HALLOWS, C. J.

The trial court denied the motion for summary judgment solely on the ground the pleadings created a material issue of fact of whether Danny Leathers had permission to drive his father's car; this was error. Of course, pleadings must create a material issue,1 but this conflict in the pleadings is not a sufficient basis to deny summary judgment. The issue created by the pleadings must be supported by sufficient evidentiary...

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