Milwaukee Elec. Ry. & Light Co. v. Bradley

• Citation: 108 Wis. 467,84 N.W. 870
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 08 January 1901
• Parties: MILWAUKEE ELECTRIC RY. & LIGHT CO. v. BRADLEY ET AL.

108 Wis. 467

84 N.W. 870

MILWAUKEE ELECTRIC RY. & LIGHT CO.

v.BRADLEY ET AL.

Supreme Court of Wisconsin.

Jan. 8, 1901.

Syllabus by the Judge.

1. Sections 3069, 3042, Rev. St. 1898, give the right of appeal from an order granting, refusing, modifying or dissolving an injunction, and limit the time for taking the appeal to 30 days from the date of the service, by either party to the action upon the other, of a copy of the order with a written notice of the entry of the same.

2. Section 3061, Rev. St. 1898, permits the trial court to stay the effect of an order of the kind above referred to on an appeal therefrom if, upon the making of the order, immediate notice of the appeal be given, and within three days thereafter the appellant serves an undertaking upon the adverse party as therein provided.

3. Section 3061, Rev. St. 1898, relates to the condition upon which an order appealed from may be continued pending the appeal, and does not affect the right of appeal or the time within which such right must be exercised.

4. Punch v. Town of New Berlin, 20 Wis. 189, was overruled by Couldren v. Caughey, 29 Wis. 317, which is in harmony herewith.

5. It is a general but not a universal rule that where all the equities of the complaint upon which a temporary injunction has been granted are specifically and positively denied by verified answer, the injunction will be dissolved.

6. Such general rule does not apply where a continuance of the injunction is reasonably necessary for the protection of the rights of either party to the litigation during the pendency thereof.

7. If it be clear that the plaintiff may probably recover, and that if he be left at the mercy of his adversary pending the litigation the purpose of such litigation may be defeated or he may probably suffer irreparable loss, it is within judicial discretion to so control the situation as to prevent that result so far as practicable, having regard for the probable rights of the defendant as well as those of the plaintiff.

8. There is no arbitrary rule that displaces judicial discretion to control the conduct of parties to litigation so the purpose thereof will not be materially jeopardized. A refusal to exercise such power where there is clear necessity for it is either a misconception of judicial duty or an abuse of it.

Appeal from circuit court, Milwaukee county; Eugene S. Elliott, Judge.

Action by the Milwaukee Electric Railway & Light Company against Herbert P. Bradley and others. Motions to vacate temporary injunction were granted, and plaintiff appeals. Reversed.

Action to restrain defendants from interfering with plaintiff's business by endeavoring to ride upon its street cars without paying the fare demanded pursuant to its lawful regulations, and to judicially establish the validity of such regulations; also to enjoin the prosecution of numerous suits brought against the plaintiff growing out of its enforcing such regulations, and to enjoin the commencement of further suits of the same character.

The facts stated in the complaint are in substance as follows:

Plaintiff is a duly organized and existing corporation under the laws of the state of Wisconsin and as such possesses all the usual powers of a street-car company, in respect to owning, maintaining and operating a street-car line from a point at the western limits of the city of Milwaukee to and through the city of Wauwatosa, and to determine the compensation to be charged for services rendered, within reasonable limits and according to public franchises upon which its rights depend. Pursuant to franchises which plaintiff was and is empowered to exercise, it has operated and is operating a railway line from the western limits of the city of Milwaukee westerly on Wells street through the town of Wauwatosa to the corporate limits of the city of that name, thence in a west, north and northwest course in such city to the center line of Main street therein, and to a point beyond and west of the limits of such city.

Pursuant to such franchise plaintiff has established a reasonable compensation to be paid by persons receiving the benefits of travel by means of its cars on the road mentioned, to wit: Five cents a trip from any point on the line in the city of Wauwatosa to the Hawley road, which crosses plaintiff's railway line about 70 rods east of the easterly limits of said city, and a second fare of five cents for a continuation of the trip to any point in the city of Milwaukee reached by the plaintiff's system of street-railway lines; five cents for the passage from any point on the Wells street line in the city of Milwaukee to the Hawley road, and an additional fare of five cents for a continuation of the passage to any point west of said road reached by either of plaintiff's lines in the city of Wauwatosa; five cents for the passage from any point on the line at or west of the westerly limits of the city of Milwaukee to the Hawley road, and an additional fare of five cents for a continuation of the passage to any point on said route west of such road; five cents for the passage from any point on the line between the division point at the Hawley road and the westerly limits of the city of Milwaukee to the westerly limits of the city of Milwaukee, and an additional fare of five cents for a continuation of the passage to any point within the city of Milwaukee. The Hawley road crossing was determined by plaintiff to be the most convenient and just division point for making an additional charge of five cents, having regard to the convenience of its customers and the orderly conduct of its business.

September 18, 1899, defendant Bradley, while a passenger on one of plaintiff's cars, refused to pay the additional fare of five cents after reaching the point of division mentioned, and was thereupon compelled to leave the car, no unnecessary violence being used to that end. October 20, 1899, said Bradley commenced an action in justice court against plaintiff to recover damages for his ejection from the car, upon the theory that plaintiff had no right to charge him the additional fare, and such proceedings were thereafter had in such action that December 6, 1899, judgment was rendered in his favor for $49.43, from which an appeal was duly taken to the superior court of Milwaukee county, where the action is now pending. December 21, 1899, said Bradley was again ejected from one of plaintiff's cars under circumstances the same as in the first instance, and on December 29th he commenced an action before a second justice of the peace, founded on a second alleged violation of his rights, which action is still pending. December 27, 1899, said Bradley was a third time ejected from one of plaintiff's cars under circumstances the same as before, and he thereupon commenced a third action for damages before a third justice of the peace, which action is still pending; and he also instituted criminal actions before the same justice, against the conductor of the car and the motorman thereof, for assault and battery, which said actions are still pending.

All of the actions mentioned except the first were instituted for the purpose of vexing and annoying the plaintiff. Such first action was amply sufficient to test the right of the controversy between plaintiff and its patrons in respect to the lawfulness of the additional fare demanded by it.

Since December 27, 1899, defendant Bradley has refused to pay the disputed fare for being carried as a passenger on plaintiff's cars, and has given and is giving out that he will not pay the same, and that each time plaintiff's servants deny him the privilege of riding without paying such fare he will institute an action for damages in justice court, or institute criminal proceedings against plaintiff's servants, or both, as the facts from his standpoint may warrant. Neither the actions already commenced nor such actions and any others that may be commenced can be consolidated, from the fact that such pending actions are in different jurisdictions. Plaintiff will be put to great and useless expense and annoyance in trying a large number of independent actions each involving the same question, and will suffer great and irreparable loss if compelled to do so. A single action is all that is necessary to settle the entire controversy.

Plaintiff is informed and believes that Bradley justifies his conduct upon the claim that some ordinance or ordinances passed by the city of Wauwatosa or the town of Wauwatosa, granting to the Milwaukee Heat, Light & Traction Company or some other company upon which plaintiff's right to operate the railway line in question depends, require the plaintiff to charge but a single fare for a single trip over its entire line west of the westerly limits of the city of Milwaukee.

The conduct of said Bradley has caused the other defendants mentioned to refuse to pay the fare demanded in accordance with plaintiff's regulations. All the defendants have confederated and agreed together to refuse to pay the additional five-cent fare, and have accordingly so refused, and such refusals have in some cases resulted in the persons so refusing being ejected from the cars. The defendants have given out that they will continue refusing to comply with plaintiff's regulations as to the additional five-cent fare, and if ejected from its cars will follow the example of Bradley as to the commencement of civil and criminal actions. Such conduct, if allowed to continue as threatened, will so disturb plaintiff's business, and cause other persons otherwise willing to pay the additional fare demanded to refuse to do so, as to inflict upon it irreparable injury.

The relief prayed for was as indicated in the stated purpose of the action. The complaint was verified, and upon a bond being given to secure the defendants from injury in case it should finally be determined that plaintiff was not entitled to the relief prayed for in the complaint, a temporary injunction...