Kennedy v. Empire Gas Co., Inc.
| Decision Date | 08 September 1988 |
| Docket Number | No. 15519,15519 |
| Parties | Joseph KENNEDY, Plaintiff-Appellant, v. EMPIRE GAS COMPANY, INC., and Charles Brown, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Ronald M. Sokol, St. Joseph, for plaintiff-appellant.
Joseph C. Benage, Hillix, Brewer, Hoffhaus, Whittaker & Horner, Kansas City, for defendant-respondent Empire Gas Co., Inc.
By his petition plaintiff Joseph Kennedy seeks to recover for property damage and personal injuries against Empire Gas Company, Inc., and its employee Charles Brown. Empire Gas Corporation filed a motion to dismiss or quash service for the reason it was not the named defendant. Brown filed a motion to dismiss for the reason the petition failed to state a cause of action. The trial court sustained both motions. Plaintiff appeals. The following is a brief outline of the relevant facts.
The petition was filed December 3, 1984. The defendants named in the caption and in the body of the petition were Empire Gas Company, Inc., and its employee Charles Brown. Count I alleged that "prior to December 4, 1979 Defendants, ... installed a gas heater, equipment and materials on the second floor of plaintiff's residence." Plaintiff further alleged the gas heater was negligently installed by defendants in the following four respects:
a) In installing said gas heater, equipment and materials with improper fittings or connections, not designed for use with said gas heater.
b) In knowing said gas heater was improperly installed and failing to warn Plaintiff of the danger of using as installed.
c) That Defendants and their agents and employees failed to install said gas heater, equipment and materials in substantial conformance with the published standards of the National Board of Fire Underwriters for the design, installation and construction of containers and pertinent equipment for the storage and handling of liquified petroleum gases as recommended by the National Fire Protection Association, as provided in Section 323.020 R.S.Mo. d) That Defendants, their employees and agents improperly and negligently connected said gas heater by use of copper tubing attached to a tapered, threaded pipe.
It further alleged that as a result of such negligence his residence and personal property in the residence were destroyed. The prayer was for damages of $50,000.
Count II incorporated the allegations of Count I. It further alleged that as a result of the defendants' negligence the plaintiff suffered personal injuries. The prayer was for $25,000.
On December 3, 1984, summonses for the named defendants were issued to the Sheriff of Laclede County. Both summonses were returned "non est." The return concerning Brown recited his domicile was Camden County. The return concerning Empire Gas Company, Inc., recited "Agent claims no Empire Gas Co."
An alias summons for Brown was issued to the Sheriff of Camden County. He was served on December 16, 1984. Brown filed a motion to dismiss the action because the petition failed to state a cause of action against him.
On November 26, 1986, an alias summons for a corporate defendant was issued. The caption on the summons named Empire Gas Co., Inc., and Charles Brown as defendants. However, the defendant summoned was designated "Empiregas Corp. Formerly [sic] Empiregas Company, Inc." The return recites service was made by "delivering a copy of the summons and a copy of the petition to the defendant Empire Gas--Earl Noe."
Empire Gas Corporation filed a motion to dismiss the petition and to "quash the attempted service of process on it ... because of (i) lack of jurisdiction over the person, (ii) insufficiency of process, (iii) insufficiency of service of process, and (iv) failure to state a claim." That motion also alleged the following:
2. The alias summons that was delivered to Mr. Earl Noe, registered agent for Empire Gas Corporation, names the defendant as 'Empiregas Corp. Formerley [sic] Empiregas Company, Inc.'
3. Empire Gas Corporation is not a named defendant in this action, and is not a successor in interest to any named defendant.
4. Earl L. Noe is not and has never been the registered agent or an officer or the person having charge of the business office of any named defendant.
5. Empire Gas Corporation is not aware of the present or former existence of any entity having the name of Empire Gas Company, Inc.
The motion was verified by the attached affidavit of Earl L. Noe. As stated, the order of the trial court was "that defendants' motions to dismiss are hereby sustained."
The plaintiff's basic point is that the trial court erred in sustaining the motions to dismiss. Inasmuch as the motions asserted different bases for dismissal, the motion of each defendant must be considered separately. As stated, Brown's motion asserted that the petition failed to state a cause of action. The basic rule governing the review of a dismissal for failure to state a cause of action has been recently repeated.
In reviewing the trial court's dismissal of appellant's petition for failure to state a claim upon which relief can be granted, the sole issue to be decided is, after allowing the pleading its broadest intendment, treating all facts alleged as true and construing all allegations favorably to appellants, whether the averments invoke principles of substantive law entitling appellants to relief.... Thus, a pleading will not be adjudged insufficient if the allegations of the petition, accorded a reasonable and fair intendment, state a claim which can call for the invocation of principles of substantive law which may entitle the plaintiff to relief.
Erslon v. Vee-Jay Cement Contracting Company, Inc., 728 S.W.2d 711, 712 (Mo.App.1987) (citations omitted). The petition is not a model and is subject to infirmities that could be raised by appropriate motions. However, an extended discussion is not necessary to reach the conclusion that the petition is not insufficient when measured by the above stated test. Brown has not appeared on appeal to contend otherwise. Brown's motion to dismiss was erroneously sustained.
Empire Gas Corporation does contend the petition was properly dismissed. It bases that contention upon the proposition that, as stated in its motion, it is not named as a defendant and was not formerly Empire Gas Company, Inc., as recited in the return on the alias summons.
On the other hand, the plaintiff argues that not only was it error to dismiss the petition, but that service upon Empire Gas Corporation should not be quashed. The plaintiff first argues that in passing upon the motion to dismiss or to quash service the trial court should not have considered the facts stated in the motion or in an affidavit filed the day the motions were heard. He contends that such consideration is contrary to that portion of Rule 55.27 which reads as follows:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 74.04.
Rule 55.27(a). He cites Rule 74.04(c) and Ruzicka v. Universal Printing Co., 637 S.W.2d 834 (Mo.App.1982). He says he was not given the required notice and a reasonable opportunity to present such material. In making that argument, the plaintiff overlooks the fact that the quoted portion of Rule 55.27 is applicable only to a motion to dismiss for failure to state a claim upon which relief can be granted.
Rule 55.28 expressly provides: "When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions." Speaking motions have long been recognized. Senn v. Manchester Bank of St. Louis, 583 S.W.2d 119 (Mo. banc 1979); Vetter & Associates, Inc. v. Dimarco Corporation, 733 S.W.2d 459 (Mo.App.1986). "Since the verified motion to dismiss was undenied, it constituted competent evidence as to the facts stated therein." Kingsley v. Burack, 536 S.W.2d 7, 9 (Mo. banc 1976).
However, Rule 44.01(d) in part provides:
A written motion, other than one which may be heard ex parte, and notice of the hearing...
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