Nelson v. Fisher Well Drilling Co.

• Decision Date: 17 June 1974
• Docket Number: No. 336,336
• Citation: 64 Wis.2d 201,218 N.W.2d 489
• Parties: Conrad NELSON et al., Plaintiff-Respondents, v. FISHER WELL DRILLING COMPANY, a Wisconsin corporation, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 489

218 N.W.2d 489

64 Wis.2d 201

Conrad NELSON et al., Plaintiff-Respondents, v. FISHER WELL DRILLING COMPANY, a Wisconsin corporation Defendant-Appellant.

No. 336.

Supreme Court of Wisconsin.

June 17, 1974.

Whelan, Morey, Morey & Ricci; Randall E. Morey, Mondovi, for defendant-appellant.

Robert H. Rasmussen, Phillips, for plaintiff-respondents.

HALLOWS, Chief Justice.

Defendant-appellant Fisher Well Drilling Company (Fisher contracted with Ogema Sanitary District No. 1 to construct and install sanitary sewers within the Town of Ogema on its accepted bid of approximately $140,000. The work, which commenced in the fall of 1968 and ran through March of 1971, involved the laying of approximately 3.8 miles of concrete pipe and a total of 17,906 man hours. On February 21, 1968, the wage scale for the project was set by the Department of Industry, Labor and Human Relations pursuant to sec. 103.49, Stats., as called for by sec. 66.293, delineating the rate of pay covering the various job classifications and was incorporated in the contract. The specifications of the contract provided that the type of work done and not a previously assigned occupational title would determine the wage rate payable. The wage rate scale established 14 'trade' classifications, with prescribed minimum hourly wage rates varying between $3.50 per hour for 'general laborer' to $4.67 for 'bricklayer or stonemason.' In addition, two truck-driver job classifications and 19 equipment-operator job classifications were established.

On April 20, 1971, plaintiff-respondent Conrad Nelson (Nelson) commenced an action against Fisher for the recovery of unpaid wages pursuant to sec. 66.293(3)(a), Stats. ¹ On September 10, 1971, plaintiff-respondents Marvin Garrow, George Frankki, James Cummings, Elmer Olson, William Bierman, Robert Larson and Donald Pearson filed written consent that suit be brought on their behalf by Nelson against Fisher to pursue their claims for unpaid wages. Adverse examinations were had and records produced and then on January 31, 1972, a summons and complaint were served on Fisher which defined the claims made. The plaintiffs sought unpaid wages due and owing from Fisher on account of work performed by the various plaintiffs on the Ogema job for which they had not been compensated at the wage rates prescribed by the department of IL & HR wage scale. Nelson and consenting plaintiffs contend they had been paid.$3,50 per hour, the general labor rate, for all labor performed on the job when they should have been paid at higher wage rates for some of the labor performed on the job.

Nelson claimed to have performed the work of a pipe layer, bricklayer and stonemason, carpenter, mortar mixer, air-tool operator, sewer caulker, bottomman, cement finisher, dump and regular truck driver, large air-compressor operator, oiler and greaser operator, under three-inch pump discharge operator, well-point pump operator and tractor bulldozer end-loader operator in addition to general laborer for which he sought $1,200 unpaid wages, representing the total of the difference between the general laborer wage rate paid and the wage rate payable for the job classifications allegedly satisfied; and an additional $1,200 liquidated damages as allowed under sec. 66.293(3)(a), Stats. The others interposed similar claims, detailed in respect to jobs allegedly performed and the amounts allegedly owing from Fisher: George Frankki--$475, unpaid wages; Elmer Olson--$750, unpaid wages; Robert Larson--$700, unpaid wages; Marvin Garrow--$600, unpaid wages; James Cummings--$1,000, unpaid wages; William Bierman--$500, unpaid wages; and Donald Pearson--$1,000 unpaid wages. Each plaintiff, as had Nelson, also sought liquidated damages as allowed by sec. 66.293(3)(a) in a sum equivalent to their respective unpaid wages claim, bringing the total amount claimed to $12,450 plus costs and disbursements. Thus each plaintiff claimed to have engaged in work fitting at least three different job classifications other than that of common laborer and four of the seven plaintiffs claimed to have worked at jobs fitting at least ten different job classifications other than that of common laborer.

By its answer, Fisher alleged it had paid plaintiffs in conformity with the IL & HR wage-rate scale for the project; alleged plaintiffs had served exclusively as general laborers and not in any other job classifications; and denied any unpaid wages or liquidated damages were due and owing plaintiffs. Fisher later amended its answer to interpose the defense of the statute of limitation, namely, sec. 893.21(5), Stats., to bar all claims of plaintiffs relating to work allegedly performed prior to April 20, 1969. Nelson testified his hours of work were to be allocated in the following manner:

Dump truck driver -- 156 hours;

Operate water pumps -- 500 hours;

Pipelayer -- 550 hours;

Air tool operator -- 320 hours;

Air compressor operator -- 16 hours;

Carpenter -- 38 hours;

Sewer caulker -- 29 hours;

Mortar mixer -- 10 hours.

Marvin Garrow worked from October, 1968, to the end of August, 1969, and testified that his hours were to be allocated as follows:

Pipelayer -- 723 hours;

General laborer -- 68 hours;

Cement finisher -- 4 hours;

Mortar mixer -- 19 hours.

Robert Larson testified that his hourse were to be allocated to the following:

Air tool operator -- 368 1/2 hours;

Laying pipe -- 206 1/2 hours;

Operate water pump -- 159 hours;

Mortar mixer -- 50 hours;

Install well points -- 42 hours;

Trucking -- 23 1/2 hours;

Mason tender -- 21 hours;

General labor -- 11 1/2 hours.

Elmer Olson testified that he worked in the following categories:

Well point operator -- 220 hours;

Bracer -- 42 hours;

Air tool operator -- 437 hours;

Cement finisher -- 35 hours;

Pipelayer -- 172 hours.

George Frankki worked for Fisher from mid October, 1968, to October, 1969, and testified that he worked the following hours:

Topman -- 100 hours;

Pipelayer -- 875 1/4 hours;

Trucker -- 100 hours;

Laborer -- 91 3/4 hours.

William Bierman claimed the following hours in the categories listed:

Air tool operator -- 221 1/2 hours;

Pipelayer -- 110 1/2 hours;

Dump truck -- 119 hours;

Small pump operator -- 120 hours;

Bricklayer -- 57 hours.

James Cummings worked for Fisher from mid October, 1968, until November, 1970 and claimed hours in the following categories:

Pipelayer -- 1,242.5 hours;

Water pump operator -- 482.5 hours;

Cement work -- 101.5 hours;

Air tool operator -- 174.5 hours;

Mortar mixer -- 15 hours;

Front end loader -- 16 hours;

Bracer -- 57.5 hours;

Air compressor operator -- 15 hours;

Sewer caulker -- 54 hours.

The special verdict submitted to the jury contained seven questions, each with a number of sub-parts, inquiring as to each of the seven plaintiffs. The jury was asked to find the number of hours of work performed subsequent to April 20, 1969, by each of the plaintiffs in each of the categories or job classifications other than 'general laborer' in which the plaintiffs had claimed to have labored. The questions made no reference to 'general laborer.' The jury found each plaintiff had worked in only one classification: Conard Nelson (pipelayer)--875 hours; Marvin Garrow (pipelayer)--190 hours; Robert Larson (operating water pumps)--495 hours; Elmer Olson (pipelayer)--500 hours; George Frankki (pipelayer)--480 hours; William Bierman (air tool operator)--470 hours; and James Cummings (pipelayer)--1,115 hours.

Fisher moved inter alia to change the answers to all questions in the verdict to read 'none' and to grant judgment in its favor on the verdict as changed on the ground there was insufficient evidence for the jury to have found that any of the plaintiffs had worked any number of hours in any job classification or for a new trial on the ground inter alia the verdict was perverse. The plaintiffs also moved to change answers in the verdict to conform to the proof. The trial court reduced the jury determinations of hours worked of five of the seven plaintiffs and let the jury determinations stand in the case of the remaining two plaintiffs. Judgment was entered on the amended verdict in favor of the plaintiffs in the total amount of $3,641.54 plus $229.97 in costs and disbursements. ²

By its verdict, the jury found that each of the seven plaintiffs had worked in one job category other than 'general laborer' while on the Ogema job. In the cases of five of the seven plaintiffs, the jury finding as to the hours expended in that job category grossly exceeded even the claims made by the individual plaintiffs forth at particular category at trial. Conrad Nelson testified that he worked 555 hours as a pipelayer and the jury found he had worked 875 hours. Robert Larson testified that he worked 159 hours as a water-pump operator and the jury found he had worked 495 hours. Elmer Olson testified that he worked 172 hours as a pipelayer and the jury found he had worked 500 hours. William Bierman testified that he worked 221 1/2 hours as an air tool operator and the jury found he had worked 470 hours. Finally, James Cummings testified he had worked 969 hours as a pipelayer after the April 20, 1969, statute of limitation cut-off date and the jury found he had worked 1,115 hours. In three of the five cases where the jury finding exceeded even the top figure claimed by the plaintiff, the jury finding was considerably more than double the claimed figure. The grossly excessive character of the jury verdict was readily apparent to the trial court. It was error for the trial court to change answers in the verdict and then grant judgment on the verdict instead of ordering a new trial because of perversity of the jury's verdict. Before the trial court can change answers in a verdict, it must make a finding of no perversity. The trial court failed to do this and could not have so found.

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