Parsons Const. Co. v. Missouri Public Service Co.

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM; FINCH, P.J., EAGER, J., and RANDALL; DONNELLY
• Citation: Parsons Const. Co. v. Missouri Public Service Co., 425 S.W.2d 166 (Mo. 1968)
• Decision Date: 12 February 1968
• Docket Number: No. 52335,No. 2,52335,2
• Parties: PARSONS CONSTRUCTION CO., Appellant, v. MISSOURI PUBLIC SERVICE COMPANY, and State Highway Commission of Missouri, Respondents

Page 166

425 S.W.2d 166

PARSONS CONSTRUCTION CO., Appellant, v. MISSOURI PUBLIC SERVICE COMPANY, and State Highway Commission of Missouri, Respondents.

No. 52335.

Supreme Court of Missouri, Division No. 2.

Feb. 12, 1968.

Motion for Rehearing or to Transfer to Court en Banc Denied

March 11, 1968.

Charles E. Rendlen, Jr., Rendlen & Rendlen, Hannibal, Eugene E. Andereck, Pickett, Andereck & Hauck, Trenton, Charles B. Blackmar, St. Louis, for appellant.

Robert L. Hyder, Bruce A. Ring, State Highway Commission, Jefferson City, for defendant-respondent.

N. R. Bradley, Ike Skelton, Jr., Lexington, Roscoe E. Moulthrop, Bethany, for defendant-respondent, Missouri Public Service Co., Bradley, Skelton & Schelp, Lexington, of counsel.

STOCKARD, Commissioner.

Plaintiff has appealed from the judgment of the trial court rendered pursuant to jury verdict in favor of Missouri Public Service Company (hereafter referred to as defendant) and pursuant to a directed verdict in favor of the State Highway Commission of Missouri (hereafter referred to as the Commission). Plaintiff sought damages in excess of $60,000.

Plaintiff, a corporation engaged in the business of road construction, was awarded a contract by the Commission for the construction of a public highway, known as Route DD (also referred to as Route SDD) in Harrison County, of slightly more than seven miles in length. Located on the public right of way were 167 poles which were owned and used by defendant for the transmission of electric energy. Defendant knew of the proposed change in the highway, and on December 29, 1960, its representative inquired by letter of the Commission when the removal of its poles would be required. The reply was that the Commission did not propose to construct the highway in 1961, and that the Commission could not then say when the construction would be done, but that defendant would have sufficient time to prepare its plans following the completion of the design for the highway. In July 1961 defendant was sent a set of 'plan and profile sheets' so it could plan the 'pole line adjustment' necessary to conform to the construction of the highway, and defendant was further notified that the Commission planned to advertise for bids in the fall of 1961 and award a contract shortly thereafter. On December 28, 1961, the Commission advised defendant of the contract entered into with plaintiff, and stated that its resident engineer would advise defendant 'as soon as the right-of-way on this project has been staked in order that you may complete your pole line removal.' On March 27, 1962 the Commission notified defendant that 'the right-of-way staking has been completed,' and that 'you may proceed with your pole-line relocation any time that is convenient with you.'

The contract between plaintiff and the Commission provided that the work should be completed within 70 'working days' after the date to be specified in a 'Notice to Proceed' from the Commission, and it was further provided that should plaintiff fail to complete the work in the 'time specified or such additional time as may be allowed by the Engineer under the contract,' liquidated damages should be charged against plaintiff in the amount of $35.00 per day.

Plaintiff was notified to proceed with the construction in January 1962. We cannot determine when the Commission started counting the 70 'working days,' but in April plaintiff was told by an agent of the Commission that 'time was being charged.' At that time plaintiff had not started work.

Mr. George Parsons, president of plaintiff, and Mr. David Yohn, plaintiff's foreman, testified that during April they had conversations with Mr. Dale Henry, a representative of defendant, and that he had assured them that the poles would be removed 'right away.' It was on May 14 that plaintiff first moved any equipment to the project site, and its 'heavy equipment' was moved there on June 18. At that time the poles had not been removed. Defendant's work crew did some work in relocating the poles in May, but the men were taken off that job to work on new customer installation. In July defendant decided to have the electric line relocated under contract. The contractor started work in the latter part of July or early August, and the relocation of the poles was completed on August 28.

Plaintiff's evidence tended to show that it was delayed in the construction work because of the presence of the poles in the right of way. The Commission stopped charging 'work days' against plaintiff on July 6, because of the presence of the poles, and did not resume charging 'work days' until August 28. Plaintiff completed the project on September 11.

Defendant's evidence pertained primarily to the issue of damages, but it also showed that between July 15 and July 22 there were some 'heavy rains,' and that there was 'wet weather' in August. Defendant's evidence also tended to show that the poles did not interfere with a substantial portion of the work. The electric line served local farms and communities, and service was continued during the process of relocation. Defendant points out in its brief that there was no evidence of the amount of time required to plan and design the line after the highway was staked, or of the amount or kind of material required, or of the labor and time required to relocate the poles while defendant continued to meet its public service obligations. Plaintiff points out, and contends this to be a judicial admission by defendant, that it was necessary that defendant obtain twenty-five easements where portions of the line would be relocated on private property.

Plaintiff alleged in its amended petition that the Commission had the 'right, power and authority' to control the location of poles, electric transmission lines, and other equipment located on the public right of way, and that it is responsible for the removal of obstructions in the right of way and for the removal of poles and electric transmission lines located there by public utilities. Plaintiff further alleged that the Commission 'duly and properly notified' the defendant to remove its poles from the right of way, and that it then 'became the duty of the defendant * * * to comply with the notification to remove said lines, poles and equipment,' but that defendant 'wrongfully and improperly failed to remove the transmission lines, poles and equipment from the construction area until the 28th day of August, 1962, * * * and by reason of the failure * * * (defendant) violated its statutory duty, Sec. 227.240 RSMo 1959 (V.A.M.S.),' and 'created a public nuisance and obstruction in the public right of way,' and thereby delayed and impeded plaintiff in the performance of its work to its damage in the sum of $66,258.38.

Defendant alleged that 'it had no duty to the plaintiff' to remove or relocate its lines because the Commission had not properly served it, in the manner provided by Section 1.190 RSMo 1959 (V.A.M.S.), with the notice required by Section 227.240, and that the notice it did receive from the Commission did not comply with Section 227.240. Defendant further alleged that no hearing was held pertaining to the 'proposed plan of relocation and matters incidental thereto concerning the lines, poles and wires' of defendant as provided in Section 227.240. The answer of the Commission will be mentioned later. Both the defendant and the Commission filed a cross-claim against the other in which each asserted that if plaintiff should recover, the other should be held solely responsible. The trial court directed a verdict against plaintiff and in favor of the Commission. Plaintiff's case against defendant was submitted to the jury, and the result was a verdict in favor of defendant.

Instruction 2, plaintiff's verdict directing instruction, was as follows:

'Your verdict must be for plaintiff and against defendant, Missouri Public Service Company, if you believe:

'First, defendant, Missouri Public Service Company maintained an electric transmission pole line in the right of way of Route 'SDD' in Harrison County, Missouri;

'Second, defendant, State Highway Commission entered into a contract with plaintiff for road improvements on the right of way of Route 'SDD' in Harrison County, Missouri, where the pole line was constructed;

'Third, the defendant, State Highway Commission gave the defendant, Missouri Public Service Company notice to move said pole line;

'Fourth, that defendant, Missouri Public Service Company had a reasonable time after receiving the notice referred to in paragraph Third to move said pole line from that part of the right of way referred to in Paragraph Second above;

'Fifth, that defendant, Missouri Public Service Company failed to move said pole line within a reasonable time after receiving the notice referred to in paragraph Third and Fourth above; and

'Sixth, that by reason of the failure referred to in paragraph Fifth above, plaintiff was damaged.'

The notation at the end of the instruction, as shown in the transcript, is as follows: 'M.A.I. 22.01 Modified. Plaintiff prepared given J.D.'

The only instructions offered by defendant consisted of a converse of Instruction 2 and a burden of proof instruction.

Plaintiff's first point on this appeal is that it was 'entitled as a matter of law to damages caused to it by reason of (defendant's) wrongful obstruction of the highway, and the court therefore erred in instructing the jury that plaintiff's right to recovery depended on (plaintiff) persuading the jury that (defendant) had received notice to remove the poles and had not removed them within a reasonable time following receipt of notice.' Following this, in what appears to be 'sub-points,' plaintiff makes the following contentions:

'A. Necessity for a formal hearing before the Highway Commission did not exist in this case.

'B. Waiver of formal hearing was made manifest by action of (defendant).

'C. Particular damage resulting from public nuisance is...