Geiger v. Ajax Rubber Co.

• Decision Date: 05 December 1922
• Parties: GEIGER v. AJAX RUBBER CO.
• Court: Wisconsin Supreme Court

179 Wis. 70

190 N.W. 831

GEIGER

v.AJAX RUBBER CO.

Supreme Court of Wisconsin.

Dec. 5, 1922.

Appeal from Circuit Court, Milwaukee County; E. C. Higbee, Judge.

Action by S. B. Geiger against the Ajax Rubber Company. From judgment for defendant, plaintiff appeals. Affirmed.

Action to recover $2,290.96, balance alleged to be due plaintiff for services rendered in putting into operation an artesian well owned by defendant. The well in question was 1,712 feet deep, and the water was used chiefly by the company for cooling rubber during certain stages of the manufacture of tires. It appears that in May, 1919, the company attempted to install an air lift in the well in order to increase the flow, and that through an accident the air lift apparatus was lost in the well, together with 160 feet of 6-inch and 175 feet of 2-inch pipe attached thereto. Further facts are clearly stated in the decision of the trial court, in part, as follows:

“This material was lodged at a shoulder that existed in the well at a depth of 1,210 feet from the surface of the ground, at a point where the hole was cased off with extra heavy 8-inch pipe. After making some attempts to recover this equipment from the well, the defendant applied to the plaintiff for expert advice in respect to the manner in which it might be recovered and solicited him to submit a proposition for doing the work of removing this equipment and material from the well. It was disclosed to and made known to the plaintiff that there was urgent need for the performance of this work, and it was important for the defendant to have the use of the cold water from this well for use in their business.

On the 30th of June, 1919, the plaintiff submitted a written proposition for the doing of the work, which was accepted by Mr. Vance, as vice president of the company. By the terms of this contract the plaintiff was to furnish a well-digging outfit and two men to operate the same, the defendant to furnish the power, the oil and light for its operation, and in addition to paying all expenses for the transportation of such outfit and setting the same up, taking the same down and transporting it back to plaintiff's place of business, were to pay the plaintiff $3.50 per hour for the time of the two men and outfit and $1 per hour for any extra labor furnished.

It was established by the evidence in the case that there are just two well-recognized methods of performing such a job as the plaintiff undertook to do: One is to grapple with the obstruction and lift it from the well as a whole; the other is to cut it up and take it out in pieces.

The evidence further establishes beyond controversy that the proper method of procedure is to first determine whether the obstructions can be lifted out under the first-stated method of procedure, as it is agreed that such method is preferable, if practicable. And it is further established that after determining that it cannot be lifted from the well, then to proceed to cut it up and remove it in pieces. It was further established by the testimony of the plaintiff himself that it would not require more than 300 hours to have removed these obstructions from this well by the second method, that is, by cutting it up and taking it out in pieces with the equipment that he there provided and used upon the job, with two men to operate the same.

The plaintiff commenced to work upon the job in July; the evidence does not disclose the precise day when the plaintiff in fact first attempted to lift the obstructions, but it was in the month of July. In that first day the plaintiff lifted the obstructions 40 feet, beyond which point it could not be moved. It was then let down and lifted again and let down and lifted again, and that operation continued for days, weeks, and months, and until some time in December, when the cable, with which the plaintiff was lowering and lifting the obstructions, broke, letting a large amount of the plaintiffs' equipment drop into the well, adding a very considerable obstruction to that which was already in the well; and at no time during the 4 1/2 months when the plaintiff was jiggling the obstruction up and down in the well was he able to advance the obstruction above the 40 feet which he raised it on the first day that he grappled with the same in July. The plaintiff and his foreman both concede that during the entire period of their work upon the well they accomplished absolutely nothing towards the removal of the obstructions, but they contend that all of this time was necessary to be used to enable them to determine whether the obstructions could be lifted and whether they would be required to resort to the cutting of the material.

The bill which they presented, and which they claim a right to recover, was for 1,300 hours at $3.50 per hour and 501 hours at $1 per hour--$5,051.

On December 20th the defendant ordered the plaintiff to remove his equipment from the premises, and after he had done so, they employed a Mr. Gray of Milwaukee to remove the obstructions.

The crucial question is whether the plaintiff was justified to continue to lift the obstruction up and down in the well from in July until in December in an endeavor to determine whether or not he should resort to the cutting of the material. Mr. Gray, the expert on behalf of the defendant, testified that 48 hours would be the outside limit of time during which a contractor would be justified in experimenting to determine that question.

Some pretense was made on behalf of plaintiff that he was justified in spending all of these weeks and months in so doing to save the value of the pipe and material lost in the well; but a reference to the time sheets, which are in evidence, shows that his bill for labor for a single week exceeded the value of the material which he was attempting to recover.”

The special verdict consisted of seven questions. The first three were answered by the court to the effect that 1,300 hours of work were rendered by the plaintiff with an outfit and two men; 500 hours as extra labor; that the contract price of this labor and other charges was $5,138.96; and that of this amount the defendant had paid $3,000. The other questions and answers were as follows:

“4. Did the plaintiff furnish a rig and tools reasonably fit and suitable for performing the work which he undertook to perform under the contract? Answer: Yes.

5. Did the plaintiff furnish and maintain on the job reasonably competent and skillful men to perform the work he undertook to perform under the contract? Answer: Yes.

6. Was the work prosecuted by the plaintiff in a good workmanlike manner and with such care, skill, and diligence as are ordinarily exercised by men engaged in plaintiff's line of work? Answer: No.

7. If you answer question 6, ‘No,’ then answer this question: Given a suitable and adequate equipment and reasonably competent and skillful men to operate it, and assuming the work to be prosecuted with reasonable care, skill, and diligence, what length of time (computedin hours) was reasonably required and sufficient to enable the plaintiff to remove the obstructions from the defendant's well? Answer: 2,000.”

Judgment was ordered for defendant notwithstanding the verdict, and the complaint dismissed.

Bloodgood, Kemper & Bloodgood, and Emmet Horan, Jr., all of Milwaukee, for appellant.

Simmons, Walker & Wratten, of Racine, for respondent.

JONES, J. (after stating the facts as above).

[1] The plaintiff testified that with the two men and outfit he had on the job he could easily have removed the obstruction by cutting it in sections, after the time he was ordered off, within 5 weeks' time working 10 hours a day; that is, within 300 hours. The trial court agreed with the...