Muscoda Bridge Co. v. Worden-Allen Co.

• Decision Date: 10 December 1931
• Citation: 239 N.W. 649,207 Wis. 22
• Parties: MUSCODA BRIDGE CO. v. WORDEN-ALLEN CO. ET AL.
• Court: Wisconsin Supreme Court

207 Wis. 22

239 N.W. 649

MUSCODA BRIDGE CO.

v.WORDEN-ALLEN CO. ET AL.^a1

Supreme Court of Wisconsin.

Dec. 8, 1931.

Dissenting Opinion Dec. 10, 1931.

Appeal from a judgment of the Circuit Court for Grant County; R. S. Cowie, Circuit Judge.

Action by the Muscoda Bridge Company against the Worden-Allen Company and others. Upon the remission of the record to the circuit court after judgment, there was inserted in the judgment an award of damages in favor of defendants, from which defendants appeal.--[By Editorial Staff.]

Reversed and remanded with directions.

FOWLER, J., dissenting in part.

Action begun November 2, 1927; judgment entered September 28, 1928, and completed by the insertion of the amount of damages determined by the court, March 25, 1931. This case was here upon appeal from the judgment and was reported in 196 Wis. 76, 219 N. W. 428, where a full statement of the facts will be found and they will not be repeated here.

Upon the remission of the record to the circuit court, W. R. Graves, Esq., was appointed as referee to hear, try, and determine the damages sustained by the defendants. The report of the referee was filed December 1, 1930, whereupon both parties moved to modify the referee's report. On March 20, 1931, the findings of fact made by the referee and his conclusions of law thereon were modified, and it was ordered: “That the said total sum thus awarded, namely, the sum of $3,677.58, may be inserted in the judgment in favor of the defendants, heretofore entered in said action.” Thereupon said sum was inserted in the second clause of said judgment, which judgment was dated and entered September 28, 1928. The notice of appeal is as follows: “Please take notice that the defendants * * * hereby appeal to the Supreme Court from that certain order of the Circuit Court of Grant county dated March 25, 1931, in favor of the defendants and against the plaintiff, reading as follows: ‘It is further adjudged, that the defendants, Worden-Allen Company, a corporation, Joseph McCarty, Ray McCarty, Henry Killian and C. F. Flanagan, co-partners, doing business under the firm name and style of Joseph McCarty Construction Company, to have and recover of the plaintiff herein, The Muscoda Bridge Company, the sum of Thirty-six hundred seventy-seven and 58/100 dollars ($3677.58), which said sum is to be hereinafter inserted in this judgment by order of this Court as damages sustained by reason of the improper issuance of the injunction herein’ ”--the notice being dated April 23, 1931.Bottum, Hudnall, Lecher, McNamara & Michael and Suel O. Arnold, all of Milwaukee, for appellants.

Kopp & Brunckhorst, of Platteville, for respondent.

ROSENBERRY, C. J.

The questions upon this appeal relate principally to the amount of damages the defendants are entitled to recover of the plaintiff on account of the issuance of the temporary injunction, which was issued as of October 18, 1927, but was not served until November 4, 1927. The temporary injunctional order was as follows: “That the defendants * * * do absolutely desist and refrain from constructing or erecting any structure in the water of the Wisconsin River or on the bed of the stream thereof opposite plaintiff's property until the further order of the Court.” This order was accompanied by a bond given by the plaintiff for $250, by which it was provided: “The condition of this obligation is such, that Whereas the above named The Muscoda Bridge Company, plaintiff, is about to procure the issuance of a temporary injunctional order in the above entitled cause against the above named defendants, and each of them. Now, therefore, if said plaintiff shall pay to the said parties defendant all the damages which defendants or any of them may sustain by reason of said injunction, if it shall be finally determined that said injunction ought not to have been granted, then this obligation shall become void.”

On November 10, 1927, the defendants asked for a change of venue. On November 14, 1927, Judge Cowie was called to sit in the case. On November 10, 1927, the defendants moved to have the counties of Grant and Richland, the village of Muscoda, and the town of Eagle made parties defendant. This order to show cause was heard November 29, 1927. On December 1, 1927, the defendant Worden-Allen Company, by motion returnable on the 5th day of December, asked to have the temporary injunctional order dissolved. This motion was denied December 5, 1927. On November 29, 1927, the amount of the bond was increased to $10,000. On December 12, 1927, the case was heard upon the merits and taken under advisement, and on December 21st, the court made and filed its findings of fact and conclusions of law and rendered final judgment as of December 12, 1927, granting a permanent injunction against the threatened trespasses. The judgment was reversed in this court May 8, 1928, and on September 28, 1928, judgment was entered dismissing the complaint. On October 17, 1928, a referee was appointed to assess the damages.

The referee found the damages at $6,660.21. The defendants contend that the court erred in five particulars in modifying the referee's findings: (1) In denying the defendants the rental value of a certain crane; (2) refusing to allow damages for the cost of removing and rebuilding a certain trestle; (3) in failing to allow the defendants damages for the rental value of certain machinery and equipment, allocated to the Muscoda bridge job, then located part at Kaukauna, Wis., and part at Shippensville, Pa.; (4) in reducing the interest on moneys invested in materials and supplies; and (5) in failing to make a proper allowance to defendants on account of attorney fees and expenses of attorneys.

The disputed item under the first assignment of error relates to the rental value of a certain Koehring crane. The referee found, and the trial court confirmed the finding, that the use of said crane was not interfered with by the injunction. This finding is claimed by the defendants to be contrary to the undisputed evidence. It appears without dispute that the crane in question was used for the purpose of unloading sand and gravel from cars during the period covered by the temporary injunction. The defendants claim that this was an effort to minimize the damages and but for the injunction the crane would have been used elsewhere and the cars unloaded by hand labor. While it does appear as claimed by defendants that the crane was idle a considerable part of the month of December, it does not appear that it would have been employed but for the injunction. The injunction left the defendants free to use the crane in question elsewhere than on the premises of the plaintiff. It cannot be said that the finding of the court is against the great weight and clear preponderance of the evidence.

[1] The second item relates to the cost of removing and rebuilding a trestle. This trestle was constructed for the purpose of enabling the McCarty Construction Company to build piers in the water and was completed prior to November 22, 1927, the day on which the injunction was served. It was removed in January, 1928, because of ice conditions and was replaced in October, 1928, when the work was continued. It appears without dispute that but for the judgment granting plaintiff a permanent injunction the defendants would have been back in the river within a day or two after December 21st. It was necessary to take the piers out because the water rose and fell in the river. As the water rose the ice rose and took the piling up with it. When it fell, the piling did not go back into place. If operations had been carried on it would have been necessary daily to cut the ice away from the piling in order to prevent it from being heaved by the raising of the ice. It cannot be said upon this contention that the evidence preponderates so clearly in favor of the defendants as to warrant this court in setting aside the finding of the referee, which was confirmed by the trial court. Manifestly, a considerable part of the damage sustained subsequent to December 21st was due to the judgment granting the plaintiff a permanent injunction.

With respect to the item relating to rental value of certain machinery allocated to the job then at Kaukauna, Wis., and Shippensville, Pa., this situation presented facts on which the finding of the referee, confirmed by the trial court, is conclusive.

[2] Upon the fourth item, interest on moneys invested in materials and supplies, the plaintiff strenuously urges that payments due on estimates were not postponed for more than three days and that for that reason the defendants are not entitled to interest for more than that length of time. It appears without dispute that the issuance of the temporary injunction brought the whole operation to a complete standstill, so far as the construction part of the work was concerned. While it may not have postponed the time of the first payment, it certainly postponed the time when the materials and supplies would be incorporated in the work and could be included in an estimate. The referee allowed interest on moneys paid by Joseph McCarty for materials and supplies on October 1st, November 1st, and December 1st, in the sum of $28.30. He allowed interest to Worden-Allen Company for moneys invested for materials on the Muscoda bridge on October 25, November 23, and December 21, 1927, in the sum of $107.87. These items were allowed by the trial court respectively at $1.90 and $7.10.

It is not an answer to say that because the first payment was not delayed and these materials were not incorporated until some subsequent time that no liability arose for the delay caused by the injunction. The referee carefully segregated the items, and it is considered that the court was in error in setting aside the referee's findings in this respect.

[3] It is the established law of this state that damages, sustained by reason of an injunction improvidently issued,...