Summary
In Gerke, this court, quoting 1 Harper James, Law of Torts, § 6.9, at 499 with approval, stated that "the value of a bargain may be impaired although there is no failure of performance."
Summary of this case from Tele-Port, Inc. v. Ameritech Mobile CommunicationsOpinion
April 29, 1963 —
June 4, 1963.
APPEAL from a judgment of the circuit court for Dane county. EDWIN M. WILKIE, Circuit Judge. Affirmed.
For the appellant there were briefs by Jasper, Winner, Perina Rouse of Madison, and oral argument by Robert I. Perina.
For the respondent there was a brief by Petersen, Sutherland, Axley Brynelson, and oral argument by James C. Herrick, all of Madison.
Action by plaintiff, Wisconsin Power Light Company, against defendant, Lawrence Gerke, a contractor engaged in highway-construction work, to recover damages sustained when Gerke knocked down one of the Power Company's poles and disrupted a transmission line. Gerke alleged that his act was justified. He also served a counterclaim alleging that the Power Company refused to remove its line upon demand and thereby intentionally delayed Gerke's performance of his contract and caused him loss.
The destruction of the pole occurred August 20, 1959, at the intersection of State Highway 19 with Interstate Highway 90, then under construction, in the town of Burke in Dane county. The Power Company maintained a transmission line within and along Highway 19, running east and west. I-90 was laid out to cross Highway 19. The construction was being performed pursuant to a contract with the state, and Gerke was a subcontractor.
It was planned that I-90 would cross over Highway 19, some 20 feet above it. If the power line were to continue to follow its existing course, it would need to be raised enough to provide some 22 feet of clearance above I-90 (or some 42 feet of clearance above the level of Highway 19) and to be supported by fewer poles, in different locations.
The state highway commission had notified the Power Company in December, 1958, and January, 1959, of the anticipated highway construction. The Power Company considered several alternative solutions of the problem. Apparently the cheapest would be to raise the line, following its existing course. Other methods would be to reroute the line so that it would cross I-90 at a different location, or arrange to serve the customers west of I-90 from a different existing line.
The Power Company did not, however, make any change in the existing line, and there was evidence tending to show that it was attempting to require Gerke to pay at least a part of the cost of relocation.
On July 6th, Gerke commenced work north of the intersection of I-90 and Highway 19, and proceeded south. He was excavating and backfilling, and one of his machines was a dragline equipped with a 90-foot boom. There was evidence that he orally told representatives of the Power Company that the line would have to be removed. On August 13th, there was a conference attended by Gerke and representatives of the Power Company and highway commission. The Power Company inquired whether it would be satisfactory to raise the line to a 60-foot clearance by using 80-foot poles. Gerke did not know whether this clearance would be sufficient to permit use of the dragline. On August 14th, after making certain measurements, he sent word to the Power Company that the proposed clearance would be insufficient.
On August 20th, Gerke telephoned a representative of the Power Company and gave him one hour to get the current shut off because Gerke was going to go through. The Power Company sent men out, but they were instructed to maintain energy in the line. Gerke had one of his machine operators knock a pole down. After that, employees of both parties dismantled and removed the line.
It appears without dispute that the highway commission gave no written authority to Gerke to destroy or disturb the Power Company's line. Neither did the highway commission nor any authorized representative make a determination that in order to enable Gerke to accomplish his work it was reasonably necessary temporarily to remove the line from Highway 19.
The circuit judge submitted three questions to the jury. The jury answered: (1) That $300 would compensate the Power Company for damages resulting from disruption of their line; (2) that the presence of the line impeded Gerke in his construction operations; and (3) that $18,000 would compensate Gerke for damages resulting from such impediment.
The learned circuit judge had concluded that under the undisputed evidence the Power Company had established a cause of action for trespass and submitted the first question so that the jury might determine the damages for the trespass. Judge WILKIE had concluded that Gerke had failed to establish a cause of action on his counterclaim. He had submitted the second and third questions notwithstanding such conclusion in order to avoid the necessity of a new trial if he should be in error. On August 7, 1962, the court struck the answers to the second and third questions and entered judgment dismissing the counterclaim and awarding the Power Company $300 and costs. Defendant Gerke appealed.
Additional facts will be stated in the opinion.
Sec. 66.047, Stats. 1959, provides:
"No contractor having a contract for any work upon, over, along or under any public street or highway shall interfere with, destroy or disturb the structures of any public service corporation encountered in the performance of such work so as to interrupt, impair or affect the public service for which such structures may be used, without first procuring written authority from the commissioner of public works, or other properly constituted authority. It shall, however, be the duty of every public service corporation, whenever a temporary protection of, or temporary change in, its structures, located upon, over, along or under the surface of any public street or highway is deemed by the commissioner of public works, or other such duly constituted authority, to be reasonably necessary to enable the accomplishment of such work, to so temporarily protect or change its said structures; provided, that such contractor shall give at least 2 days' notice of such required temporary protection or temporary change to such corporation, and shall pay or assure to such corporation the reasonable cost thereof, except when such corporation is properly liable therefor under the law, but in all cases where such work is done by or for the state or by or for any county, city, village, or town, the cost of such temporary protection or temporary change shall be borne by such public service corporation."
1. Contractor's liability for damage to transmission line. Gerke contends that the Power Company was obliged to remove the line; that the line was therefore a nuisance which he could summarily abate. It seems to us, however, that the first sentence of sec. 66.047, Stats. 1959, just quoted, furnishes a clear answer.
The term "commissioner of public works, or other properly constituted authority," as used in the statute, requires interpretation. From the history and context of the section, the "commissioner of public works" must mean the board of public works (consisting of commissioners) in cities where they exist and have supervision over construction and maintenance of streets. "Other properly constituted authority" is construed to mean the public body having supervision over construction and maintenance of the highway in question similar to the supervision vested in the board of public works in cities where such boards exist. In the case before us the properly constituted authority was the state highway commission.
See sec. 62.14, Stats., and sec. 925-78, Stats. 1915.
Mr. Gerke had had no written authority from the high way commission (or any other body) to interfere with the Power Company's line. Whatever duty the Power Company had to remove it, the clear terms of sec. 66.047, Stats. 1959, prohibited his knocking it down. Recovery by the Power Company of its damage was properly allowed.
2. Contractor's cause of action for interference with the conduct of his business. Mr. Gerke contends that the Power Company wrongfully interfered with the conduct of his business by leaving the line in place. At the trial he proved that he was hampered in the use of some of his machinery by the presence of the line. It was not only a physical barrier, but a source of great hazard if parts of his machine came close enough to the line for the electricity to arc from the line to the machine.
". . . one who, without a privilege to do so, induces or otherwise purposely causes a third person not to . . . perform a contract with another, . . . is liable to the other for the harm caused thereby."
Restatement, 4 Torts, p. 49, sec. 766. See Northern Wisconsin Co-operative Tobacco Pool v. Bekkedal (1924), 182 Wis. 571, 581, 197 N.W. 936, E. L. Husting Co. v. Coca Cola Co. (1931), 205 Wis. 356, 365, 237 N.W. 85, and 30 Am. Jur., Interference, p. 84, sec. 42.
Here it is the one whose acts are interfered with who seeks redress because the performance of his contract was made less profitable. It has been recognized that,
". . . the value of a bargain may be impaired although there is no failure of performance. In such a case, it may be the promisor rather than the promisee who sustains the loss. Thus, any conduct which is intended to and which, in fact, makes performance more onerous is, unless privileged, a tort against the promisor."
1 Harper and James, Law of Torts, p. 499, sec. 6.9.
We have no difficulty with the concept of the cause of action Mr. Gerke asserts he has, but we do have difficulty with its application to the circumstances now under consideration.
The Power Company served about 50 customers west of I-90 by means of the transmission line involved here. It had a permit from the town board of the town of Burke. Before the laying out of I-90, the line apparently complied with all requirements. The construction of I-90 brought about two new duties: (1) The Power Company must change its lines on a permanent basis so that it would provide at least 22 feet of clearance above the surface of I-90 when finished, either by raising the line in approximately the same location, along State Trunk Highway 19, or by relocating the line elsewhere so as to cross with proper clearance; (2) if the performance of the work of construction at any time made some additional temporary change reasonably necessary to enable the accomplishment of such work, the Power Company must make such temporary change.
See secs. 84.08, 86.16, 182.017, 196.58 (1), and 196.74, Stats., for the authority of an electric public utility to use the public highways and the requirement of permit from the town board and approval by the state highway commission where the highway is within a town.
4 Wis. Adm. Code, sec. E 2.01, State Electrical Code, pursuant to sec. 196.74, Stats.
"The fact that poles in a street or highway were located in a certain place by an electric company pursuant to permission of the authorities creates no absolute, indefeasible right or irrevocable license to have such poles remain at the particular spot for all time." 18 Am. Jur., Electricity, p. 421, sec. 18. See Milwaukee E. R. L. Co. v. Milwaukee (1932), 209 Wis. 656, 667, 245 N.W. 856, 20 Op. Atty. Gen. (1931), 429, and Anno. 75 A.L.R.2d 419.
The utility's duties with respect to temporary changes are governed by the latter portion of sec. 66.047, Stats. 1959, above quoted.
As applied to the circumstances of this case, the two duties are somewhat interwoven. The least drastic and least expensive method of fulfilling the first duty would be to raise the wires along approximately the same route by the use of taller poles. Gerke claimed, however, that neither a 42-foot nor even a 60-foot clearance over ground level would fulfil the second duty. A complete rerouting of the line so that the crossing would occur at a point where ground conditions were different and would not require the same type of operations as Gerke was performing, would be more expensive, and would apparently fulfil both duties. Presumably the representatives of the Power Company thought that such rerouting would involve a greater change than reasonably necessary for Gerke to perform his work.
If Mr. Gerke's only complaint was that the Power Company should have raised its line to a 42-foot clearance above ground level, and if he claimed that he could have carried on his work with the line at that height, and if he had given proper notice we would have no difficulty in concluding that the Power Company's deliberate delay in raising its line would entitle Gerke to damages for intentional, unprivileged interference with his performance of his contract. This, however, is not the situation, as it is Gerke's position that he could not operate his machine with a clearance of 42 or even 60 feet, as offered August 13th.
Although the state highway commission had given the Power Company many months' notice of the proposed construction, the specifications incorporated in the contract required the contractor to give notice in writing to those in charge of electric conduits which might be affected "at least 48 hours before breaking ground." Gerke gave no written notice.
His claim is that the use of the machinery he chose to use was reasonably necessary, that the 90-foot boom must be used at an angle which would be unsafe if the wires were 60 feet from the ground, and that it was reasonably necessary that the line be removed, at least temporarily. The Power Company having refused to recognize his claim, and loss having resulted, he considers that the circuit court should determine the issue of what was reasonably necessary.
We think this position is contrary to the policy expressed in sec. 66.047, Stats. 1959. This section was created as sec. 959-30, Stats., by ch. 439, Laws of 1915. A note in the relevant file in the office of the secretary of state says: "This bill is legislative recognition of the doctrine of law laid down in the Adlam case, 85 Wis. 142."
In the Adlam Case a contractor was repaving a street for the city. He attempted to halt the operation of street-railroad cars while the repaving was being done. The street-railroad company brought action to enjoin the contractor from disrupting service. This court decided that as a matter of fact there was no necessity for stopping the operation of the street railway during the repaving. It said that the contractor "had the right to interfere with the running of such cars so far as it became reasonably necessary in the performance of the work, . . ." The court also said:
Milwaukee Street R. Co. v. Adlam (1893), 85 Wis. 142, 149, 150, 55 N.W. 181.
"It follows from what has been said that the rights of neither of the parties to this action were absolute, as against the other, in respect to the street in question, but the rights of each were relative with respect to the duties and obligations of the other and the traveling public generally."
We conclude that in enacting sec. 66.047, Stats. 1959, the legislature not only adopted the standard of reasonable necessity for determining the extent to which a contractor could demand temporary changes in utility structures in order to facilitate his work, but also provided that where the parties do not agree the determination must be made by the public body having supervision over construction and maintenance of the particular highway.
When Mr. Gerke and the Power Company could not agree, it was up to the state highway commission to determine the changes which were reasonably necessary. Once it had so determined, the statute makes it clear that since the work was being done for the state, the cost would have to be borne by the Power Company. In view, however, of the purpose of the statute to provide for administrative determination of the changes which were reasonably necessary, it would be bad policy for the courts to make such determination where the parties bypassed the administrative determination.
It is most unfortunate that the course which was followed resulted in wasted effort and expense. The record suggests that the greater fault may be charged to the Power Company. If the company took the position that Gerke must pay for temporary changes that were reasonably necessary, it was certainly wrong. But we conclude as a matter of policy that any losses which resulted from failure to observe sec. 66.047, Stats. 1959, should remain where they happened to fall.
By the Court. — Judgment affirmed.
WILKIE, J., took no part.