Helvey v. Wabash County REMC, 971A185

Decision Date17 February 1972
Docket NumberNo. 971A185,971A185
Citation278 N.E.2d 608,151 Ind.App. 176
Parties, 48 A.L.R.3d 1055, 10 UCC Rep.Serv. 333 Thomas HELVEY, Plaintiff-Appellant, v. WABASH COUNTY REMC, Defendant-Appellee.
CourtIndiana Appellate Court

John Johnston, McCallen, Johnston & Mattern, Wabash, for plaintiff-appellant.

Alfred H. Plummer III, Plummer, Tiede, Magley & Metz, Wabash, for defendant-appellee.


Appellant Helvey filed an action against appellee REMC, based upon a breach of implied and express warranties, for damages caused to certain 110 volt household appliances. The damage was a result of REMC furnishing electricity of 135 or more volts. REMC filed an answer in denial as well as the special defense that more than four years had accrued since the incident occurred. REMC then filed a motion for summary judgment, predicated upon the statute of limitations. At the same time REMC filed a petition for extension of time to answer interrogatories that Helvey had submitted earlier in the case. The court granted the motion for extension of time by ruling the interrogatories be answered 30 days after the ruling on summary judgment.

A hearing on the summary judgment was held, Helvey's deposition being published in the meantime, and the court subsequently granted REMCs motion for summary judgment. REMC had amended its original judgment for summary judgment, and it was upon the latter that the court ruled.

Helvey's overruled motion to correct errors contained three specifications:

1. The decision was not supported by sufficient evidence upon all the necessary elements of the claim or defense which makes the decision contrary to law;

2. Properly raised uncorrected error of law occurring before and during the proceedings, and,

3. The decision is contrary to law.

The first issue to be resolved is which statute of limitations applies to the facts of this case. REMC says the following applies:

'An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.' IC 1971, 26--1--2--725, Ind.Ann.Stat. § 19--2--725 (Burns 1964.)

Helvey recollected that the incident in question was corrected the cold night the damage occurred. The incident was identified because of the presence of Bill Yentes. Yentes' affidavit shows the date to be the 10th of January, 1966. The cause was filed on the 4th of March, 1970.

In order for the Uniform Commercial Code statute of limitations to apply, electricity must possess the following qualities:

'(1) 'Goods' means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Article 8 (§§ 19--8--101--19--8--406)) and things in action . . ..

(2) Goods must be both existing and identified before any interest in them can pass . . ..' IC 1971, 26--1--2--105, Ind.Ann.Stat. § 19--2--105 (Burns 1964.)

Helvey is of the opinion that electrical energy is not a transaction in goods but rather a furnishing of a service, which would make the following statute of limitations applicable:

'The following actions shall be commenced within six (6) years after the cause of action has accrued, and not afterwards.

First. On accounts and contracts not in writing.' IC 1971 34--1--2--1, Ind.Ann.Stat. § 2--601 (Burns 1967.)

Helvey concedes that electricity is legally considered to be personal property, that it is subject to ownership, and that it may be bartered and sold. Hill v. Pacific Gas & Electric Co. (1913), 22 Cal.App. 788, 136 P. 492. Terrace Water Company v. San Antonio Light and Power Company et al. (1905), 1 Cal.App. 511, 82 P. 562; Sixty Seventh South Munn. v. Board of Public Utility Commissioners (1929), 106 N.J.Law 45, 147 A. 735. We further note that electricity may be stolen; IC 1971 35--1--66--3, Ind.Ann.Stat. § 10--4519 (Burns 1956); and taxed, Gross Income Tax Division v. Chicago District Electric Generating Corp. (1956), 236 Ind. 117, 139 N.E.2d 161.

It is necessary for goods to be (1) a thing; (2) existing; and (3) movable, with (2) and (3) existing simultaneously. We are of the opinion that electricity qualifies in each respect. Helvey says it is not movable and in this respect we do not agree, if for no other reason than the monthly reminder from the electric company of how much current has passed through the meter. Logic would indicate that whatever can be measured in order to establish the price to be paid would be indicative of fulfilling both the existing and movable requirements of goods.

We further take note that one of the principle underlying purposes in adoption of the Uniform Commercial Code is 'to make uniform the law among the various jurisdictions.' IC 1971, 26--1--1--102(2)(c), Ind.Ann.Stat. § 19--1--102(2)(c) (Burns 1914.) With this in mind, we rely upon the authority of Gardiner v. Philadelphia Gas Works (1964), 413 Pa. 415, 197 A.2d 612, wherein natural gas was determined to be goods within the scope of the Uniform Commercial Code, therefore, the four-year statute of limitations was applicable.

Helvey further argues that electricity not being goods under the purview of the Uniform Commercial Code, the previously mentioned six-year statute of limitations necessarily applies. REMC counters this argument, and we believe correctly, that the two-year statute of limitations for damage to personal property (IC 1971 34--1--2--2, Ind.Ann.Stat. § 2--602 (Burns 1967)) would be applicable. While the question was not raised below, and need not be decided here, there could be a great deal of merit to REMC's position in this regard.


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