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Gerovac v. Hribar Trucking, Inc.
Citations: 168 N.W.2d 863; 43 Wis. 2d 328; 1969 Wisc. LEXIS 978Docket: 316
Court: Wisconsin Supreme Court; June 27, 1969; Wisconsin; State Supreme Court
Emil Gerovac, a masonry and general contractor, sued Hribar Trucking, Inc. for tort, claiming conversion of his tools valued at $10,849.78. The tools were stored at Root River Sand and Gravel Company's property from June 1960 to September 1964, after which Hribar Trucking allegedly removed them maliciously and used them in its business from 1964 to 1966. Gerovac initially sought damages through a tort action based on conversion. Subsequently, he attempted to amend his complaint to change the basis from tort to contract, asserting an implied contract due to the defendant's retention of his equipment without payment. Despite the unchallenged value of the equipment, the trial court dismissed Gerovac's third garnishment action, citing a previous dismissal of an identical garnishment and the nature of the claim as unliquidated. The court found the claim to be unsubstantiated in the context of garnishment. An action founded on contract does not require liquidated damages. The amended complaint does not successfully convert a tort action for conversion into a contract action based on implied contract, despite attempts to allege a mutual agreement. The key test is whether there is a mutual intention to contract, which is not satisfied by the plaintiff's assertion of an implied contract. The complaint retains elements of the original tort claim, particularly allegations of malicious intent in the removal of equipment, which undermines the claim of a contractual relationship. The complaint fundamentally remains a tort claim for conversion of property, seeking damages related to this claim. Additionally, the sequence of the garnishment actions related to the tort claim indicates an attempt to alter the nature of the claim after initial proceedings were dismissed. The circuit court acted to prevent abuse of its process by rejecting the attempted shift from tort to contract. The relationship between the timing of the amended complaint and the garnishment actions is significant. The implications of Sniadach v. Family Finance Corp. on garnishment proceedings were not addressed in this appeal. Overall, there is no support for liberal construction of garnishment statutes or for procedural adjustments to validate otherwise invalid garnishment actions. Order affirmed. The document references several cases, including Kindinger v. Behnke and Barber v. Walker, providing legal precedents relevant to the issues at hand. It cites In re Munro's Estate and Orton v. Noonan as legal authorities and refers to a U.S. Supreme Court case, Sniadach v. Family Finance Corp., where Justice Douglas highlights the unique challenges faced by wage earners, emphasizing their significant hardships without presenting a compelling state or creditor interest for special protection. Justice Harlan's concurring opinion stresses the inadequacy of Wisconsin's law regarding notice and hearing requirements, asserting that due process necessitates a valid claim against a debtor before property deprivation occurs. The writer suggests that while the garnishment action may withstand the majority ruling, it would likely be undermined by the reasoning in Justice Harlan's opinion.