Chrome Plating Co. v. Wis. Elec. Power Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: FRITZ
• Citation: Chrome Plating Co. v. Wis. Elec. Power Co., 241 Wis. 554, 6 N.W.2d 692 (Wis. 1943)
• Decision Date: 09 February 1943
• Parties: CHROME PLATING CO., Inc., v. WISCONSIN ELECTRIC POWER CO.

241 Wis. 554

6 N.W.2d 692

CHROME PLATING CO., Inc.,

v.WISCONSIN ELECTRIC POWER CO.

Supreme Court of Wisconsin.

Dec. 8, 1942.

Rehearing Denied Feb. 9, 1943.

Appeal from a judgment of the Circuit Court for Milwaukee County; William F. Shaughnessy, Judge.

Affirmed.

Action brought by Chrome Plating Company, Incorporated, against the Wisconsin Electric Power Company to recover treble damages under sec. 196.64, Stats., for defendant's alleged reckless and wilful cutting off of a power line supplying electric energy to plaintiff. Upon a trial of the issues under the pleadings and evidence a jury returned a special verdict upon which the court entered judgment dismissing the complaint.

Plaintiff appealed.

Bloodgood & Passmore and William E. Burke, all of Milwaukee, for appellant.

Shaw, Muskat & Paulsen and Van B. Wake, all of Milwaukee, for respondent.

FRITZ, Justice.

The sole basis of the cause of action alleged by plaintiff in its complaint is that defendant, a public utility furnishing electric power to the general public “recklessly, wilfully and without authorization from plaintiff and without any notice of any kind, nature or description to the plaintiff cut off the power line supplying electric current to plaintiff; * * * that by reason of the reckless and wilful conduct of the defendant * * * plaintiff has been damaged in the said sum of $4,808.24; that the proximate cause of the injury to the drier and the damage to plaintiff was the wilful and reckless negligence of the defendant * * *; that the cutting off of said electric current amounted to a refusal on the part of the defendant to continuously furnish reasonably adequate service and facilities as required by Section 196.03, Wis.Stats., and plaintiff is entitled to judgment against the defendant for treble damages, as provided for in Section 196.64, Wis.Stats., Wherefore, plaintiff demands judgment * * * in treble the amount of its actual damages, * * *.”

Throughout the trial plaintiff persisted in endeavoring to recover upon the sole cause of action thus alleged in its complaint; and as plaintiff chose to rely upon solely that cause of action, the court submitted to the jury for a special verdict, with plaintiff's approval, but four questions which with the jury's answers are as follows:

1. “Was the electric current supplying energy to the motor used to revolve the drier interrupted by the removal of the electric meter on April 3rd, 1940? Answer: Yes.”

2. “If you answer the first question ‘Yes', then answer this question: Did James Koehn, defendant's employee, in removing the meter, cut off the power line supplying energy to such motor with such a degree of rashness, recklessness or wilfulness as to evince a total disregard of the safey of property in the possession of the plaintiff and a willingness to inflict injury? Answer: No.”

3. “If you answer the second question ‘Yes', then answer this question: Was such manner of removing the meter and interrupting the power an efficient cause of damage to the drier? Answer:---.”

4. “If the Court should be of the opinion that the plaintiff is entitled to recover judgment, at what sum do you assess plaintiff's damage? Answer: $2000.00.”

Upon the return of the verdict plaintiff chose to rely upon solely the cause of action on which it claimed the right to recover treble damages by reason of alleged reckless and wilful conduct of defendant; and, accordingly, plaintiff's motions after verdict were (1) for judgment upon the verdict for its recovery of $6,000 as treble the amount of damages assessed by the jury; or (2) if that motion was denied, then for an order changing the jury's answer to the second question from “No” to “Yes”, and inserting “Yes” in answer to the third question as to proximate cause, and thereupon ordering judgmentfor plaintiff's recovery of $6,000 as treble damages; or if that was denied then for an order granting a new trial because of errors in instructions to the jury and rulings in relation to the admission of testimony. Upon the court denying those motions and granting defendant's motion for judgment on the verdict, and entering judgment dismissing the action, the plaintiff appealed.

Plaintiff's principal contention is that although it based its cause of action to recover treble damages upon its allegations that defendant recklessly and wilfully cut off the power line, plaintiff is entitled to recover treble damages under sec. 196.64, Stats., in the absence of any proof or finding that defendant wilfully or recklessly violated or disregarded its duty to furnish reasonably adequate service, as required by sec. 196.03, Stats. Plaintiff claims that because there are no terms in sec. 196.64, Stats., which expressly require that the conduct of a utility which resulted in its failure to furnish the service prescribed by sec. 196.03, Stats., must have been reckless or wilful in order to entitle a plaintiff to recover treble damages under sec. 196.64, Stats., the plaintiff is entitled to recover such damages from the defendant even though its conduct in cutting off the power line was neither reckless nor wilful. In the case at bar the interruption in supplying electric energy continued for about ten minutes upon defendant's employee cutting off the power line while removing a defective meter and substituting another in place thereof. The meter was in a portion of a building adjacent to another part thereof in which plaintiff was using electric current, in the course of its business of chromium plating, to operate a motor in order to rotate a drier, which was being replated in a fluid solution containing chromic acid particles. Upon cutting off the power the drier ceased rotating and, while it was stationary in the fluid, chromic acid particles attached themselves to the drier so as to create a ridge on the body of the drier and cause serious damage thereto. Under the evidence in relation to the existing conditions and the manner in which the defective meter was being replaced, the jury was warranted in finding that the acts of defendant's employee were not reckless or wilful.

Sec. 196.64, Stats., reads as follows: “If any public utility shall do or cause to be done or permit to be done any matter, act or thing prohibited or declared to be unlawful by chapter 196 or 197, or shall omit to do any act, matter or thing required to be done by it, such public utility shall be liable to the person injured thereby in treble the amount of damages sustained in consequence of such violation.” Although it is not expressly provided therein that, in order to render a utility liable for treble damages thereunder the “matter, act or thing” in question must have been done or omitted wilfully or recklessly, the court, in construing the statute in Krom v. Antigo Gas Co., 154 Wis. 528, page 537,140 N.W. 41, page 45,143 N.W. 163, stated in the first instance, in an opinion written by Mr. Chief Justice Winslow: “Viewing the statute in the light of the decisions, we do not feel that we can do otherwise than construe it [then sec. 1797m-93; now sec. 196.64] as a statute covering only willful breaches of duty, or, as expressed in the Cohn Case [Cohn v. Neeves, 40 Wis. 393], a breach in which there is ‘some element of willfulness, wantonness, or evil design.”’ In reaching that conclusion the court said:

“The law nowhere contains the word ‘willful,’ and it is strongly urged that, if we construe it to cover only willful acts, and acts which by reason of their wanton or reckless character are legally equivalent to willful acts, we shall be construing words which are so plain as to prohibit construction, and thus in effect encroach on legislative powers. This argument would possess much strength were it not for the fact that this court in a series of decisions commencing many years ago, has construed similar statutes, highly drastic and penal in their nature, as not covering acts or omissions resulting from mere inadvertence or excusable neglect. Thus in Cohn v. Neeves, 40 Wis. 393, a statute providing for the recovery of treble damages against any person who should convert to his own use without consent of the owner any logs, timber, etc., floating in any of the waters of the state or lying on the banks was held, in view of its highly penal character, as only intended to apply ‘to a conversion where there was some element of willfulness, wantonness, or evil design in the act.’ It was also said in that case that the law ‘by way of punishment subjects the wrongdoer in certain cases to an extraordinary liability for the property of another appropriated to his use. In some cases the conversion may be merely a technical one in law, arising from accident, mistake, or even carelessness, without any evil design, and where the damages recoverable at common law afford an adequate compensation to the party injured. We can hardly think such a case was within the contemplation of the Legislature. In that...