Kuhlman Plastics Co. v. Kansas City Power & Light Co., 51476

• Decision Date: 14 March 1966
• Docket Number: No. 2,No. 51476,51476,2
• Citation: 400 S.W.2d 409
• Parties: KUHLMAN PLASTICS CO., Inc., Appellant, v. KANSAS CITY POWER & LIGHT COMPANY, Inc., Respondent
• Court: Missouri Supreme Court

Page 409

400 S.W.2d 409

63 P.U.R.3d 502

KUHLMAN PLASTICS CO., Inc., Appellant, v. KANSAS CITY POWER & LIGHT COMPANY, Inc., Respondent.

No. 51476.

Supreme Court of Missouri, Division No. 2.

March 14, 1966.

John G. Killiger, Kansas City, for appellant.

Irvin Fane, Joseph J. Kelly, Jr., Howard F. Sachs, Kansas City, for respondent; Spencer, Fane, Britt & Browne, Kansas City, of counsel.

BARRETT, Commissioner.

This is an action by Kuhlman Plastics Company against Kansas City Power & Light Company to recover $150,000 damages for wrongful refusal to restore electric service on demand on October 15, 1964. On its face plaintiff's petition states a cause of action in tort for breach of duty to restore service (43 Am.Jur. (Public Utilities and Services) § 31, p. 593; Ellyson v. Missouri Power & Light Co., Mo.App., 59 S.W.2d 714) but in response to the petition the power and light company filed a motion for summary judgment, attaching to the motion three affidavits, the plaintiff's contract for service and Rule 3.02 filed with the Public Service Commission and, concedely, a part of plaintiff's contract. Kuhlman filed a counteraffidavit and after judgment a motion to reconsider together with a supplemental affidavit. But upon these documents and pleadings the court found that 'there is no genuine issue as to any material fact' and accordingly entered summary judgment for the defendant power and light company and Kuhlman has appealed.

Two of the appellant's points are directed to the proposition that this was not a proper case for summary judgment, contending that its petition and counteraffidavits raised issues of fact. In part the appellant contends merely because its petition states a common-law cause of action in tort that fact issues are presented and therefore summary judgment procedure was inapplicable. And of course if the only issue was the factual one of breach of duty, depending only on the circumstances summary judgment would have been inappropriate. Cooper v. Finke, Mo., 376 S.W.2d 225. But here the substantive cause of action does not stand alone, another circumstance has intervened and the problem is whether that intervening factor renders as a matter of law the substantive cause of action immaterial. Not every release or other document brings into play as a matter of law summary judgment procedure (Kroger Company v. Roy Crosby Company, Mo.App., 393 S.W.2d 843), but if the circumstances set forth in the motion and the supporting proof 'show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law' (Civil Rule 74.04(c)), summary judgment is indeed proper as against a common-law claim for damages. Farmer v. Arnold, Mo., 371 S.W.2d 265. And that precisely is the problem here, whether the motion and all attending and supporting proof show by 'unassailable proof' (Civil Rule 74.04(h)), that the respondent light company, despite the cause of action stated in the appellant's petition, is entitled as a matter of law to judgment.

From the pleadings, affidavits and accompanying documents it appears that Kuhlman is engaged in the production of plastic products and is dependent on electrical power which was furnished under a 'Primary Electric Service Agreement' with the respondent Kansas City Power & Light Company. The contract between respondent and appellant was executed in December 1955 and pursuant to its provisions the required electric power was satisfactorily supplied until the 15th day of October 1964. On that date electric service into the appellant's plant was interrupted and it is alleged that although requested the electric company wrongfully refused on that day to restore service. The line was repaired and service restored on the following day, October 16, 1964, about 4 o'clock in the afternoon by supervisory personnel, nevertheless appellant claims that it was damaged $150,000 by the respondent's failure to restore service on October 15. And, undeniably, Rule 3.02 was a part of the written agreement to supply electricity. Only insofar as material here that rule provides: 'In case the Company shall be prevented from delivering, or the Customer from receiving, all or any portion of the electric service contracted for, or in case any such deliveries are delayed, when such nondelivery, inability to receive, or delay in delivering or delay in receiving such electric service is caused by strike (which in the case of Customer shall be limited to a strike of its own employees within its plant) * * * or any cause reasonably beyond their control, the Company shall not be obligated to deliver nor the Customer to receive such electric service during such interruptions; provided however, that the Company or the Customer, as the case may be, shall be prompt and diligent in removing or overcoming the cause or causes of such interruption or delay * * *.' (Emphasis supplied.)

In connection with the strike provision it appears from undenied affidavits that on October 15, 1964, there was a strike of Kuhlman employees at its plant and place of business. Not all of its employees were on strike, at least the plant was in partial operation, but there was a strike and there was a picket line of striking employees 'within the entrance to the Kuhlman plant' and there had been some vandalism--a shot fired into a transformer. But the immediate difficulty and cause of the interrupted service which appears in part from the appellant's affidavit was that a metal chain had been thrown across the company's line causing the outage. The appellant's supplemental affidavit says that 'the break in the jumper line for transmission of power was at a point approximately ten feet from the public street in Kansas City' and outside its building and 'was near to and could conveniently be reached from the public street.' Nevertheless Kansas City Power and Light employees would have been required to cross the picket line maintained by Kuhlman's employees.

And in addition to the asserted lack of police protection and the fear of violence on October 15, the undenied affidavit of the company's labor relations employee asserts that on October 15 he was advised of the outage by the business manager of 'Local 1464, I.B.E.W., which represents employees of the (Kansas City Power & Light) Company' and the business manager said that the company 'was attempting to have employees represented by the Local cross a picket line to effect repairs * * * and that the Local might go on strike.' Subsequently the affidavit recites that 'Mr. James (the business manager) stated to affiant that employees of Local 1464, I.B.E.W. would strike if any Company employees were sent through the picket line to restore service * * *.' As stated, on the following day electric service was restored 'with supervisory personnel and police protection' and so there was a delay 'of approximately...