Davis v. Laclede Gas Co.

Decision Date09 September 1980
Docket NumberNo. 61011.,61011.
Citation603 S.W.2d 554
PartiesLeroy DAVIS, Appellant, v. LACLEDE GAS COMPANY, Respondent.
CourtMissouri Supreme Court

Eugene H. Buder, St. Louis, for appellant.

Paul B. Hunker, Jr., Morris E. Stokes, St. Louis, for respondent.

Appellant's Motion to Amend Opinion or for Rehearing Denied September 9, 1980.

Respondent's Motion for Rehearing Denied September 9, 1980.

DONNELLY, Judge.

This case involves § 516.100, RSMo 1969.

For many years respondent supplied gas to appellant for the operation of his dry cleaning and pressing plant in Kinloch, Missouri. The gas was used primarily to fire a furnace for heating a boiler and generating steam for the presses.

According to appellant's Third Amended Petition: in the latter part of 1965, appellant and respondent agreed that a dangerous condition existed because the gas meter was located inside the plant. Appellant opted for moving the meter outside the plant. Instead, on November 18, 1965, respondent installed a vent pipe running from the inside meter to the exterior of the plant. The vent pipe so interfered with the supply of gas as to render appellant's presses inoperable. Appellant made numerous demands on respondent to move the meter outside the plant. Appellant had to take his pressing to be done elsewhere and lost profits from December 18, 1965 to July 13, 1970, when respondent moved the meter to the exterior of the plant.

In Count I of his petition, appellant alleges that in the latter part of 1965 it was orally agreed and contracted that respondent would correct the dangerous condition by moving the meter to the exterior of the plant, but breached the contract on or about December 18, 1965, by failing to move the meter and by instead installing a vent pipe. This count purports to sound in contract.

In Count II of his petition, appellant alleges that respondent installed the vent pipe and that the "installation was negligent, incompetent, and unworkmanlike in that defendant knew or should have known that it would materially interfere with the supply of gas to plaintiff's plant." This count purports to sound in tort.

The cause was instituted by the filing of a petition in the Circuit Court of St. Louis County, Missouri, on January 17, 1973. The cause was dismissed with prejudice by the trial court on the grounds that both Count I and Count II are barred by the five-year statute of limitation. § 516.120, RSMo 1969.

An appeal was taken to the Eastern District of the Missouri Court of Appeals where the judgment of the trial court was affirmed. The cause was then transferred to this Court, by order of this Court, and will be considered here "the same as on original appeal." Mo.Const., Art. V, § 10.

In an action on contract, "ordinarily a plaintiff's cause of action accrues upon a defendant's failure to do the thing at the time and in the manner contracted, and a statute of limitation begins to run when a suit may be maintained therefor." Baron v. Kurn, 349 Mo. 1202, 1213, 164 S.W.2d 310, 316 (1942).

In an action in tort, generally speaking, "the rule is that a statute of limitation begins to run when the cause of action has accrued to the person asserting it, the accrual being whenever such a breach of duty has occurred, or such a wrong has been sustained, as will give a right then to bring and sustain a suit." Allison v. Missouri Power & Light Co., 59 S.W.2d 771, 773 (Mo.App.1933).

Of determinative effect in this case is § 516.100, RSMo 1969, which reads as follows:

"Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued; provided, that for the purposes of sections 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained."

Appellant asserts that he pleaded "his injury as continuous from December 18, 1965 (when the vent pipe was installed) to July 13, 1970, when he got relief from defendant that he had been persistently demanding." He then reasons that under § 516.100, supra, "the cause of action, viewed either as breach of contract or tort, accrued on July 13, 1970, within five years of filing suit, because only then was the damage * * * capable of ascertainment * * *." (Emphasis ours).

We are cited to no case in point and have found none. We are attracted to the view articulated in Developments in the Law— Statutes of Limitation, 63 Harv.L.Rev. 1177, 1205 (1950) that Missouri's "capable of ascertainment" language represents a statutory recognition "that the `cause of action' which commences the limitations period should not refer to the `technical' breach of duty which determines whether the plaintiff has any legal right, but to the existence of a practical remedy." More importantly, the Developments article deals with "continuing or repeated wrongs" as follows (at 1205 and 1206):

"If some completed part of the defendant's conduct will cause all the harm which may result, so that continuance or repetition will not increase the plaintiff's damage, the statutory period properly commences immediately without regard to future conduct, for the certainty of harm is sufficient to allow recovery for all the damage and the first impact generally assures both knowledge of the conduct and incentive to sue. * * *.
"Where the potentiality of future harm is not clear, however, limitations should not run until damages become recoverably certain. Thus, the possibility that the defendant may remove the harmful condition or cease his wrongful conduct, or that injury may not result, may prevent the recovery of full prospective damages, so that the period limiting an action to recover for such damage does not begin prior to its maturation. Since the amount of future harm will vary with the extent of the later wrongful conduct, recovery is permitted only for that portion of the wrong—whether it be affirmative conduct or a failure to act—which has occurred within the statutory period immediately preceding suit. * * *."

We have concluded that the following rule of law should be applied in the peculiar and particular circumstances of this case: if the wrong done is of such a character that it may be said that all of the damages, past and future, are capable of ascertainment in a single action so that the entire damage accrues in the first instance, the statute of limitation begins to run from that time. If, on the other hand, the wrong may be said to continue from day to day, and to create a fresh injury from day to day, and the wrong is capable of being terminated, a right of action exists for the damages suffered within the statutory period immediately preceding suit.

We agree with appellant that the petition can be construed as attempting to plead a continuing breach of contract and a continuing tort. In these circumstances, appellant is entitled to attempt to allege and prove a cause of action for the period January 17, 1968 to January 17, 1973. Of course, his petition affirmatively demonstrates that he cannot recover for the period July 13, 1970 to January 17, 1973, because respondent's alleged wrongful conduct ceased July 13, 1970.

The judgment is reversed and the cause remanded.

MORGAN, J., concurs.

BARDGETT, C. J., concurs in separate concurring opinion filed.

SEILER and HIGGINS, JJ., concur and concur in separate concurring opinion of BARDGETT, C. J.

WELLIVER, J., dissents in separate dissenting opinion filed.

RENDLEN, J., dissents and concurs in separate dissenting opinion of WELLIVER, J.

BARDGETT, Chief Justice, concurring.

I concur in the principal opinion but desire to add the following reasons in support of the position which would allow plaintiff to sue for damages sustained within the five years immediately preceding the filing of the lawsuit.

The facts of this case are not particularly vexing nor do they present a significantly difficult question under the law if the relative positions of the parties are borne in mind and the unique position a public utility holds in our society is recognized. In fact, a very similar matter was presented in Cacioppo v. Southwestern Bell Telephone Co., 550 S.W.2d 919 (Mo.App.1977), which will be referred to further later in this opinion.

Defendant Laclede Gas Company is a public utility and as such enjoys a monopoly in the sale and distribution of natural gas in St. Louis and St. Louis County. Citizens desiring to use gas in their businesses or homes must obtain it from defendant as there are no other gas distributors from which it can be obtained. Of course, to use the gas it must be piped onto a consumer's premises, and to bill the customer the gas must be metered on the consumer's premises. This is done by the use of pipes, meters, and equipment of Laclede Gas Company located on the consumer's property. The consumer is not entitled to move or tamper with Laclede's pipes or meters. Laclede is obligated to serve the customers in its franchise territory and is not a trespasser simply because it occupies a part of a consumer's premises with its equipment while delivering gas to the customer. Even though Laclede and the customer may be involved in a dispute, the customer still cannot move or tamper with Laclede's meters or pipes.

Count I alleges the parties entered into an oral contract in late 1965 whereby Laclede agreed to move its gas meter to the exterior of plaintiff's dry cleaning and processing plant to correct a dangerous condition arising from the lack of a vent pipe on the inside gas meter; that Laclede breached the...

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