Johnston v. Farmers Alliance Mut. Ins. Co., 47764

• Decision Date: 24 January 1976
• Docket Number: No. 47764,47764
• Citation: 545 P.2d 312,218 Kan. 543
• Parties: Stanton P. JOHNSTON, Appellant, v. FARMERS ALLIANCE MUTUAL INSURANCE COMPANY, and D D. Skupa, Appellees.
• Court: Kansas Supreme Court

Page 312

545 P.2d 312

218 Kan. 543

Stanton P. JOHNSTON, Appellant, v. FARMERS ALLIANCE MUTUAL INSURANCE COMPANY, and D D. Skupa, Appellees.

No. 47764.

Supreme Court of Kansas.

Jan. 24, 1976.

Syllabus by the Court

1. When a party makes no suggestion to the trial court of any additional facts tending to support his position, he cannot escape summary judgment, if otherwise proper, on the mere hope that further discovery may reveal evidence favorable to his case.

2. In general, a cause of action accrues, so as to start the running of the statute of limitations, as soon as the right to maintain a legal action arises, the true test being at what point in time the plaintiff could first have filed and prosecuted his action to a successful conclusion.

3. In an action brought by an employee against his corporate employer and an officer thereof for damages, resulting from the termination of his employment, the reocrd is examined and it is held: In rendering summary judgment the trial court did not err in determining that plaintiff's causes of action sounded in tort and were barred by the provisions of K.S.A.1975 Supp. 60-513(4).

Fred W. Phelps, Topeka, argued the cause and was on the brief for appellant.

William L. Mitchell, Hutchinson, and H. W. Fanning, Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause, and were on the brief for appellees.

KAUL, Justice:

The question presented in this appeal is whether the trial court properly entered summary judgments for defendants on the grounds that plaintiff's causes of action were barred by the applicable statute of limitations.

The plaintiff-appellant Stanton P. Johnston was a longtime employee of defendant-appellee Farmers Alliance Mutual Insurance Company (hereafter referred to as Alliance). Defendant-appellee D. D. Skupa is President and General Manager of Alliance. Plaintiff instituted this action for damages against defendants as a result of the termination of his employment. Omitting the first paragraph, describing the corporate structure of alliance and the last paragraph consisting of the prayer, plaintiff's petition reads as follows:

'II. The defendant D. D. Skupa is President and General Manager of the defendant corporation.

'III. Plaintiff was an employee of the defendant for 27 years until May, 1972.

'IV. Approximately two or three years prior to his termination with the defendant, plaintiff discovered an embezzlement which exceeded $100,000 and reported it to his superiors. From that time forward plaintiff's relationship with the defendant deteriorated and the plaintiff's act of loyalty was the cause of such a result.

'FIRST CAUSE OF ACTION

'V. Plaintiff's firing was motivated by bad faith or malice and was based on retaliation for the plaintiff's act of loyalty to the defendant's policy holders.

'SECOND CAUSE OF ACTION

'VI. Plaintiff's firing by the defendant constitutes a tort of outrage.

'THIRD CAUSE OF ACTION

'VII. The defendant D. D. Skupa interfered with the plaintiff's contractual relationship with the corporate defendant and committed the tortious interference with plaintiff's employment contract causing plaintiff's loss of employment and mental anguish.'

Plaintiff's petition was filed on May 31, 1974. On August 9, 1974, plaintiff's deposition was taken. Thereafter, both defendants filed motions for summary judgment. In their motions defendants contended the two-year statute for tort actiosn (K.S.A.1975 Supp. 60-513(4)) had run prior to the filing of the action. The motions were heard at pretrial conference on October 3, 1974, by Judge Kline, administrative judge of the Sedgwick district court, who ruled in pertinent part as follows:

'1. That the employment of the plaintiff, Stanton P. Johnston, was terminated on March 3, 1972.

'2. That the two (2) year statute of limitations for a tort action commenced on March 3, 1972, and expired on March 3, 1974.

'3. That this action was filed on May 31, 1974, and is therefore barred by reason of the expiration of the statute of limitations.'

On appeal plaintiff first contends summary judgment was premature in that he was proceeding with pretrial discovery, but did not have the opportunity to complete it. The proposition upon which plaintiff's contention is based is a correct statement of Kansas law (Lawrence v. Deemy, 204 Kan. 299, 461 P.2d 770), but other decisions of this court have limited the principal holding to the effect that where a party makes no suggestion of additional facts which tend to support his position, he cannot escape summary judgment on the mere hope that further discovery may reveal evidence favorable to his case and it appears that no issue of material fact affecting such judgment remains in dispute. (Cherry v. Vanlahi, Icn., 216 Kan. 195; 531 P.2d 66; Essmiller v. Southwestern Bell Tel. Co., 215 Kan. 74, 524 P.2d 767, and Meyer, Executor v. Benelli, 197 Kan. 98, 415 P.2d 415.) Although plaintiff argues further discovery might have revealed a contract of employment to support an action governed by the longer three-year limitation period of K.S.A. 60-512(1), plaintiff's deposition clearly shows he was aware there was no contract, written or oral, which stated any duration of employment. Plaintiff did not suggest any additional facts tending to support his position, he was merely hopeful. The trial court had all the facts necessary to rule on the summary judgment motions and the issue as to when the cause of action accrued under the facts presented here was a question of law for the court. On the issue presented the case was ripe for summary judgment.

In their brief defendants assert that at the pretrial conference the trial court inquired if discovery was complete on the issue of the expiration of the statute of limitations and all counsel, including counsel for plaintiff at that time, agreed that discovery was complete on that issue and that the court could rule on the matter. No record was made of the pretrial conference, but plaintiff's counsel on appeal makes no showing to the contrary by affidavit or otherwise. From the statement of counsel and the impression we get from the trial court's rulings, we are led to believe that the trial court was satisfied, that as to the issue concerning limitations, discovery was complete.

On numerous occasions this court has been confronted with appellants asserting a defense of incomplete discovery in summary judgment cases. Concerning such assertions we had this to say in Gray v. Ray Gill, Frontier Industries, Inc., 208 Kan. 95, 490 P.2d 615:

'Ordinarily, a motion for summary judgment should not be granted when the opposing party is proceeding diligently with his pre-trial discovery, but has not had an opportunity to complete it. (Lawrence v. Deemy, 204 Kan. 299, 461 P.2d 770; Timmermeyer v. Brack, 196 Kan. 481, 412 P.2d 984; Brick v. City of wichita, 195 Kan. 206, 403 P.2d 964.) On the other hand, when, as here, a party makes no suggestion to the trial court of any additional facts tending to support his position, he cannot escape summary judgment, if otherwise proper, on the mere hope that further discovery may reveal evidence favorable to his case. (See, Sade v. Hemstrom, 205 Kan. 514, 471 P.2d 340; Meyer, Executor v. Benelli, 197 Kan. 98, 415 P.2d 415.) . . ..' (p. 97, 490 P.2d at 617.)

Further discovery here would not have revealed additional facts pertinent to the limitations question. From the overall record we are satisfied that plaintiff is in no position now to challenge the summary judgments on the grounds that they were prematurely granted.

Plaintiff also argues that the trial court erred in granting summary judgments because the cause of action stated in the petition could be construed as alternatively sounding in contract within the meaning of 60-512(1) or tort within the meaning of 60-513(4).

Obviously, the Skupa action sounded only in tort. For purposes of our discussion of the action against Alliance, we shall assume arguendo that plaintiff has stated a cause of action in his petition. The question considered by the trial court was restricted to the limitations issue. The question whether plaintiff had stated a cause of action against Alliance was not presented to the trial court and is not determined by this court on appeal. In passing it may be noted that this court has adhered to the rule prevailing in most jurisdictions (62 A.L.R.3d, Anno. Employment Contract Termination At Will, p. 271) that in the absence of a contract, express or implied, between an employee and his employer covering the duration of employment, the employment is terminable at the will of...