Crowley v. City of Milwaukee

166 Wis. 156 | Wis. | 1917

SiebecKee, J.

The evidence ' abundantly supports the jury’s finding that the pavement laid by the city in front of the plaintiffs’ lots in November, 1911, was so defective as to make it worthless for the purposes for which it was intended. It is- contended by the city that the worthless condition of the original bituminous surfacing laid on the concrete foundation for this street improvement was due to an insufficiency in the plans and specifications provided by the city for this street improvement, in that the specified two-inch bituminous covering to be placed on the concrete foundation was wholly insufficient for the traffic conditions over. National avenue in front of the plaintiffs’ lots, and tbat a three-inch bituminous covering should have been provided to furnish a proper pavement for such street. We are satisfied that the-evidence does not sustain this contention and that the trial court was right in holding that it supports the jury’s finding to the effect that the worthless condition of the bituminous surfacing resulted from the negligent and imperfect laying thereof by the city officials and the contractor performing the work in the respects set forth in the foregoing statement. Under the facts shown and found by the jury there is no room for the claim that the city officials through an honest mistake of judgment provided imperfect and insufficient plans and specifications for the street improvement and that this mistake necessitated the resurfacing of the street with a-bituminous covering in 1914. Under the established facts there is no ground for exempting the city from liability for laying the worthless pavement pursuant to defective plans and specifications furnished by the city officials. Under the authority conferred on the city to make this street improvement at the expense of the abutting lotowners, it devolved on the city to enforce compliance by the contractor with the plans and specifications furnished by the city for this improvement and to secure a pavement in substantial compliance therewith. It is apparent that the city failed to provide the pavement called for by the plans and specifications and that such default was due to the negligence of the city authorities. To require the plaintiffs to pay for the original pavement upon the basis that the city furnished a pavement in compliance with the plans and specifications, when in fact the bituminous surfacing was worthless, and to demand of them to pay the cost of the resurfacing of 1914, which was necessitated by the city’s failure to furnish the pavement it charged the plaintiffs for in the first special assessment, constitutes a legal fraud on the plaintiffs as abutting lotowners and entitles them to recover the damages caused them by the second special assessment. Eiermann v. Milwaukee, 142 Wis. 606, 126 N. W. 53.

It is averred that the plaintiffs have waived their right to the recovery of such damages by paying the instalment bonds issued by the city to the contractor in payment of iaying the original pavement and by signing an express waiver of any illegality or irregularity in authorizing the improvement or making the assessment to cover the cost thereof. The express written waiver embraces only the agreement that the plaintiffs “will make no objection to any want of power, illegality, or irregularity in regard to the assessment” upon their property. This waiver manifestly does not include anything aside from procedural matters by the city in authorizing the improvement and laying the special assessment and is no waiver of any wrongful conduct on the part of the city authorities in executing the work, as claimed in this case. The contention that the plaintiffs’ voluntary payment of the in-stalment bonds issued for the laying of the’original pavement, after they had knowledge of the defective condition of the street, operated as a waiver of their right not to be charged for the cost of resurfacing to make good the original defective work, is not well founded. The plaintiffs have persistently refused to pay for this resurfacing to replace the original worthless surfacing. It would be an unreasonable and unjust implication to assert that the payment of the original assessment bonds by the plaintiffs changed their status or that of the city in relation to the duty of paying the cost of the 1914 resurfacing of the street. There is nothing in-' consistent in paying the first assessment bonds and-the plaintiffs’ insistence that the city make good the defective surfacing. The facts present no case of waiver by the plaintiffs of their cause of action for the fraud committed against them by the city in assessing against their property the cost of resurfacing the street.

It is urged by the city that the court erred in not granting a new trial of the case for errors committed in refusing to submit special questions and giving instructions on the inquiry whether or not the defective condition of the original bituminous surfacing was the result of an honest mistake of the city officials in adopting and specifying a pavement that was insufficient for the heavy traffic over the portion of National avenue in front of the plaintiffs’ lots. The pavement laid on the avenue was the same for the whole of the street improved. It appears without dispute that the parts free from the defects which existed in the parts fronting the plaintiffs’ lots remained in good condition to the time of the trial though subjected to like traffic as the defective parts. It also clearly appears that the defects complained of were of a nature that are not attributable to the traffic use of the street from November, 1911, to the early spring of 1912, but that they were the result of negligence of the contractor and the city authorities in laying the bituminous surface under unsuitable conditions and in failing to comply with the specifications and the contract under which the improvement was authorized to be made. In the light of these facts the trial court properly rejected the proposed special questions and instructions relating to the insufficiency of the plans and specifications furnished by the city.

The court instructed the jury on the burden of proof respecting the inquiry embraced in the second question of the special verdict submitted, to the effect that the plaintiffs had the burden of proving by clear and satisfactory evidence that the city officials, “through negligence or inattention,” permitted a defective pavement to be laid, and that they were to answer this question “Yjes” unless the plaintiffs proved that the surface of the concrete foundation was not free from ice and other matter as to make it suitable for laying the bitu-tminous' surface. It is manifest that the court in the last part of the instruction intended to state that the burden of proof rested on tbe plaintiffs on tbis proposition, but confused tbe instruction by a negative statement, wbicb upon analysis is shown to be contrary to tbe first part of tbe instruction. We have then a proper instruction on tbe burden of proof, but an erroneous statement to tbe jury in its application to tbe proposition referred to. An examination of tbe whole verdict shows that- the answer to question 2 is in harmony with tbe jury’s finding of all other issues included in tbe special verdict, wbicb persuades us that tbe jury evidently correctly applied the instruction respecting tbe burden of proof, and, having done tbis, tbe confusing statement of tbe court in applying it to question 2 did not prejudice tbe appellant and hence does not constitute reversible error. We find no reversible error in tbe record.

By the Gourt. — Tbe judgment appealed from is affirmed.