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Getschow v. Commonwealth Edison Co.

OPINION FILED DECEMBER 20, 1982.

ROY M. GETSCHOW, PLAINTIFF-APPELLEE,

v.

COMMONWEALTH EDISON COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Robert G. Mackey, Judge, presiding.

JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiff brought this action against Commonwealth Edison Company (Edison) for tortious interference with contractual relations. After hearing several days of testimony, the trial court entered judgment for plaintiff in the amount of $295,000, representing both compensatory and exemplary damages. On appeal, defendant contests the court's findings with respect to liability, as well as the amount and nature of damages awarded.

The record discloses the following facts:

During the early 1970's, plaintiff entered into the business of representing building trades contractors to potential buyers of their services. Plaintiff sought sales positions with companies in different fields of the building trades which would enable him to sell the products and services of each contractor separately, to present a single bid to an owner on behalf of several or all of his contractor-clients, and to arrange for two or more of his contractors to "co-venture" portions of a construction project. By January of 1976, plaintiff had entered into separate employment contracts with seven contractors, each in a different field. While the terms of these contractual arrangements varied, at the time of Edison's alleged interference plaintiff was receiving salary plus a percentage commission from five of the seven contractors and a straight commission from the remaining two. Plaintiff had become successful in selling the products and services of his employers to many owners and his sales and commissions had grown from a few thousand dollars in 1972 to more than $20,000 during the 12 months prior to Edison's claimed interference.

Edison was and is one of the largest customers of building contractors in Chicago due to its extensive construction and maintenance work. In his previous position as the president of an industrial pipefitting concern, plaintiff had worked closely with Edison over a seven-year period, during which time he developed business, personal and social ties with many of the Edison personnel, including its buyers and construction engineers, and Edison was among the many companies that plaintiff later called upon as a salesman for his principals. By the spring of 1976, plaintiff had been calling on Edison's buyers in this capacity for more than five years, had been successful in placing his contractors on Edison's approved bidders list and had earned commissions on many successful bids submitted to Edison.

The events leading up to plaintiff's cause of action against Edison began in March of 1976 with a meeting between plaintiff and Edward Jennett, Jr., sales manager for Johnson Controls, a potential contractor-client. The purpose of the meeting was to discuss a possible employment relationship, and at that time plaintiff apparently mentioned certain "contacts" he had with Edison. At the time of said meeting, Johnson Controls had a bid pending at Edison for work on a new project. It is undisputed that although there was mention of the pending bid, plaintiff did not then or at any other time suggest that he could or would do anything with regard to it.

Jennett reviewed plaintiff's request for employment with his superior at Johnson, Joseph Lewis. Despite Jennett's efforts to advise Lewis only of plaintiff's good faith intentions in seeking a sales position with Johnson, Lewis prepared a memorandum entitled "Mr. Getschow's Offer" relating to plaintiff's solicitation of Johnson's business. The memorandum stated:

"* * * Mr. Getschow reports that he is an independent Contractor Representative who represents a number of contractors doing work with Commonwealth Edison. * * * He reports that he knows the right people at Commonwealth and would be in a position to help us. * * * Ned Jennett called me with this information and said that Mr. Getschow needed an answer. My response to Ned's call was that Mr. Getschow's request sounded like a payoff.

If, in fact it was a payoff, the answer was a plain and simple `no.' My instructions to Ned were to soft peddle the answer to Getschow; merely put it on the back burner. Ned did just as instructed, however, Mr. Getschow persisted calling 3 or 4 times between March 30, 1976 and April 9, 1976. On Friday, April 9, Mr. Getschow said he needed an answer. * * * On Monday, we were called by Commonwealth Edison and informed that the job was awarded to Powers [another contractor]."

Although Jennett was the only individual at Johnson Controls who ever actually talked with plaintiff, Jennett never saw or knew of the existence of the Lewis memorandum prior to the ensuing trial. The trial court ultimately found that the memorandum had "no validity in substance or fact."

Some time later, in May of 1976, the Lewis memorandum came into the possession of Thomas Ayers, Edison's chairman. Ayers referred the memo to Glenn Beeman, a vice president in purchasing, who, in turn, referred the matter to H.L. Holmberg "for investigation." Holmberg reported back the following day, after having spoken with the buyers in Edison's purchasing department and having found no indication that any payoffs had been made or that plaintiff had been instrumental in securing any Edison contracts for his clients. Holmberg also showed Beeman the "calling card" which plaintiff had distributed to Edison's purchasing department listing the seven contractors plaintiff represented, and a "Business Placed" memorandum showing when Edison had requested bids from plaintiff's clients and the dollar amount of business that Edison had done with each during 1974 and 1975. It is clear that no one at Edison ever checked with Jennett or anyone else at Johnson Controls to determine if the suggestion of a "payoff" in the Lewis memo had any factual basis, nor did Edison investigate the existence of any conflicts with respect to plaintiff's other contractors, although one of them was at that time a principal bidder on the same project as Johnson. There was no evidence adduced at trial that plaintiff had bribed or attempted to bribe any Edison employee; to the contrary, the evidence showed that Edison had an elaborate system of controls for analyzing incoming bids which made "payoffs" almost impossible.

In spite of the fact that Holmberg's investigation revealed nothing to substantiate the allegations in the Lewis memorandum, Beeman proceeded to draft a letter intended for plaintiff's contractor-clients. Beeman's sending of an identical letter to each of plaintiff's seven contractors constituted the act of "interference" on which plaintiff's cause of action is based. The letter stated:

"As you know, your company and mine have a long standing business association.

It has recently come to my attention that Mr. Roy M. Getschow has indicated, as shown on the attached copy of his calling card, that he represents your company for purposes of our continuing business relationship. I am not aware of the nature of Mr. Getschow's status with respect to your company, but I wanted to assure you that business is available from Commonwealth Edison Company only on the basis of most favorable price and the best quality.

Further, I want to call to your attention a condition of Commonwealth Edison Company's EXHIBIT C, GENERAL CONDITIONS, which is ...


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