Lindemann v. City of Kenosha

• Citation: 240 N.W. 373,206 Wis. 364
• Parties: LINDEMANN v. CITY OF KENOSHA ET AL.
• Decision Date: 12 January 1932
• Court: United States State Supreme Court of Wisconsin

206 Wis. 364

240 N.W. 373

LINDEMANN

v.CITY OF KENOSHA ET AL.

Supreme Court of Wisconsin.

Jan. 12, 1932.

Appeal from an order of the Municipal Court of Kenosha County; Calvin Stewart, Judge.

Action by Cyril W. Lindemann, doing business as the Lindemann Construction Company, against the City of Kenosha and others. From order overruling demurrers of certain defendants to plaintiff's complaint, such defendants appeal.--[By Editorial Staff.]

Reversed and remanded, with directions.

This action was commenced on the 28th day of August, 1930, against the city of Kenosha and certain of its officers to recover damages for the revocation of a building permit, and against Max Wassermann and Kenosha Packing Company, to foreclose a mechanic's lien and/or to recover damages from them.

Such allegations of the long and involved complaint herein as are necessary to an understanding of this controversy may be summarized as follows:

The plaintiff is a building and construction contractor. The city of Kenosha is a municipal corporation. The defendant Roy L. Peterson is the chief of the inspection department and building inspector of said city. The defendants Pfennig, Josephson, Burns, and Herrmann are councilmen of said city, The defendant Wassermann is a resident of Milwaukee, and the defendant Kenosha Packing Company is a Wisconsin corporation. On April 10, 1929, the plaintiff entered into a contract with the defendants packing company and Wassermann to construct for them, in the city of Kenosha, a building to be used as a slaughterhouse. On the 19th day of April, 1929, the plaintiff presented to defendant Peterson, and to the zoning board of appeals of said city, plans and specifications for a building, and at that time advised both the city inspector and the said board that the building was to be used as a slaughterhouse. After examination of the plans and specifications by Peterson and approval thereof by the zoning board of appeals, the defendant Peterson, acting for and in behalf of the city, duly issued to the plaintiff a building permit for the erection of said building. Thereafter the plaintiff and his employees commenced the construction of the building, and furnished labor and materials for use in such construction, and continued the work of construction under the building permit with the knowledge, approval, and acquiescence of the defendant Peterson, the zoning board of appeals, the city manager, and other city officials until the 21st day of May, 1929, during which time the plaintiff expended the sum of $14,877.47 for labor and materials. Ever since the said 21st day of May, 1929, the city of Kenosha, by its officers and representatives, and by direction, authority, and acquiescence of the city council of said city, has forcibly and by threats and coercion compelled the plaintiff to desist from further prosecuting said work, giving no reason why the plaintiff was not permitted to proceed. The defendant Peterson did, without cause assigned, revoke said permit.

Just prior to the said 21st day of May, a large number of residents and property owners in the vicinity of said proposed slaughterhouse appeared before the city council at a regular meeting and protested against the erection of said slaughterhouse and petitioned the city council to stop the work of construction. The defendant city, for political reasons and for no other cause, compelled plaintiff to desist from further prosecuting said work. Prior to June 17, 1929, no reason or excuse for stopping the plaintiff was given; but on that day the city of Kenosha, and its officers, claimed that certain differences between the defendant Wassermann and the officials of the city influenced the revocation of the said building permit. The plaintiff has suffered damages in the sum of $14,877.47, no part of which has been paid, except the sum of $3,000 paid by Max Wassermann. The plaintiff's claim was filed with the city of Kenosha and disallowed by nonaction thereon. The plaintiff is in doubt and unable to determine whether or not the defendants Roy L. Peterson, Charles H. Pfennig, Joseph P. Josephson, John Burns, and Jacob J. Herrmann were acting within the scope of their authority in revoking the building permit and in stopping the work. The defendants Peterson, Pfennig, Josephson, Burns, and Herrmann, if not within the scope of their authority in revoking said permit and stopping said work, are personally liable to the plaintiff for revoking said permit and stopping said work without reason or cause, and the said persons are joined as defendants, for the reason that the right of the plaintiff to relief exists in the alternative against them.

This is the substance of the first cause of action.

For a separate cause of action the plaintiff first appropriately alleges a cause of action against the defendants packing company and Wassermann for the foreclosure of plaintiff's claim for lien. The plaintiff next alleges that, by virtue of the ordinance of the city of Kenosha, it was incumbent upon the defendants packing company and Wassermann to procure a building permit; that a building permit was issued authorizing plaintiff to proceed with the construction of said building; that, after said building permit was issued, it was the duty of defendants packing company and Wassermann, for whom said building was being erected, to protect the plaintiff from interference, delay, or stoppage for any cause or reason for which the plaintiff was not at fault or in any way to blame in the erection of said building; that on the 21st day of May, 1929, after plaintiff had proceeded for more than a month in the prosecution of said work of construction under said permit, and with the knowledge, consent, approval and acquiescence of the defendant city of Kenosha, its officers, city manager, and members of the city council, and had fully complied with the city ordinance and city codes of the city of Kenosha and the Industrial Commission of Wisconsin codes relative to the construction of buildings, and had done and complied with all things required of him by the defendant city of Kenosha and its officers, the defendant city of Kenosha, by its officers, representatives,and police force, and for no failure or default of the plaintiff, compelled the plaintiff to desist from further prosecuting said work, and revoked the said building permit, giving no cause or reason why the said work of construction was stopped or why plaintiff could not proceed in the work; that the defendants packing company and Wassermann had full knowledge of the wrongful acts of the defendant city of Kenosha, its officers and representatives, and neglected and failed to protect the plaintiff from the wrongful acts of the city of Kenosha, its officers and representatives, as they were in duty bound to do; that, due to the conflicting claims and disputes between the city and defendants Wassermann and packing company as to the permit, the plaintiff has doubts as to who are liable in the premises, and prays judgment in the alternative against such defendants as the proofs shall show to be liable.

The city of Kenosha and the defendants Peterson, Pfennig, Josephson, Burns, and Herrmann separately demurred to the complaint.

After hearing, the court entered an order overruling the demurrers, from which the defendants city and its officers appealed.

Roy S. Stephenson and Chester D. Richardson, both of Kenosha, for appellants.

Edward J. Ruetz, of Kenosha (John C. Slater, of Kenosha, of counsel), for respondent.

NELSON, J.

This action, so far as the city and its officers are concerned, is brought to recover damages resulting from the revocation of a building permit issued by the city of Kenosha through its building inspector. The demurrer specifically raises the question as to whether the complaint states a cause of action against the demurring defendants. Since the complaint demands relief in the alternative against the city and its officers named, it will be necessary to consider whether the complaint states a cause of action against the city and/or the members of its council and/or its building inspector.

[1] May a city be held liable in damages for the revocation of a building permit, in the absence of a statute authorizing such recovery?

The answer to this question depends on whether a city, in revoking a building permit, acts in a governmental capacity.

[2] It is well established in this state that a city is not liable for damages caused by the negligence or tortious acts of its agents and officers while engaged in the discharge of governmental functions. Apfelbacher v. State, 160 Wis. 565, 152 N. W. 144;Gensch v. City of Milwaukee, 179 Wis. 95, 190 N. W. 843;Erickson v. Village of West Salem (Wis.) 236 N. W. 579. The doctrine of respondeat superior does not apply between a city and its officers or agents while engaged in the discharge of public or governmental functions. Apfelbacher v. State, supra; City of Milwaukee v. Meyer (Wis....