Laclede Gas Co. v. Hampton Speedway Co., 35748

Decision Date04 March 1975
Docket NumberNo. 35748,35748
Citation520 S.W.2d 625
PartiesLACLEDE GAS COMPANY, Plaintiff-Appellant, v. HAMPTON SPEEDWAY COMPANY et al., Defendants-Respondents. . Louis District. Division Three
CourtMissouri Court of Appeals

M. E. Stokes, B. A. Smith and Paul B. Hunker, Jr., St. Louis, for plaintiff-appellant.

Sheldon Weinhaus, Levin & Weinhaus, Jack E. Pohrer, St. Louis, for defendants-respondents.

SIMEONE, Presiding Judge.

This is an appeal from an order of the circuit court of the City of St. Louis entered on September 21, 1973, sustaining the defendants-respondents' motion to dismiss the third amended petition of the plaintiff-appellant, Laclede Gas Company, seeking recovery for gas and gas service allegedly furnished to the defendants. For reasons hereinafter stated, we reverse the order sustaining the motion to dismiss and remand the cause for further proceedings.

On July 23, 1973, plaintiff-Laclede Gas Company filed its third amended petition (actually the fourth petition) seeking recovery for gas and gas service furnished to one or more of the several defendants--Hampton Speedway Company, Jack Burton Management Co. (d/b/a Midland Oil Company), W. C. Thompson, Crusader Car Wash, Inc., Russell Zumsteg and Earl Jenkins.

Laclede asserted in its six-count petition the following: (a) that, at Hampton's 'request,' Laclede 'furnished gas and gas service' to its premises located at 2130 Hampton Avenue for a period from 1965 to 1970 and that Hampton 'received the benefit of the use of gas,' that Hampton failed to pay the amount 'lawfully' owing and prayed damages for the amount of the gas service (Count I); (b) that Jack Burton Management Company 'requested gas and gas service at said premises,' which Laclede regularly and continuously 'furnished,' and that Jack Burton 'received the use and benefit' of gas service from December 7, 1965, to November 2, 1970. Laclede prayed that, in the event it did not recover judgment against Thompson, Crusader Zumsteg and Jenkins, it recover judgment against Hampton and Jack Burton jointly or 'alternatively' against Jack Burton Company alone (Count II); (c) that W. C. Thompson engaged in the operation of a service station or car wash or both at the premises between November 11, 1966, and February 16, 1968, and that during the period Laclede 'furnished gas and gas services' for use in the business. Laclede then pleaded 'hypothetically' if Hampton and Jack Burton did not receive the benefit of the gas service, Thompson did receive the 'use and benefit' for the period and prayed for the amount due in the event that Laclede does not recover judgment against Hampton and Jack Burton (Count III); (d) that Crusader Car Wash engaged in the operation of a car wash at the premises between February 16, 1968, and November 2, 1970, and during that period Laclede 'furnished' gas and, '(p) leading hypothetically,' if Hampton and Jack Burton did not receive the 'benefit and use' of the gas, then Crusader 'received the use and benefit.' Laclede prayed that in the event Laclede does not recover judgment against Hampton and Jack Burton, then it prays judgment against Crusader for the period involved (Count IV); (e) that Russell Zumsteg engaged in the operation of a service station or car wash or both on the premises and occupied the premises from July 1, 1966, to March 1, 1969, and during that period Laclede 'furnished gas and gas services.' Laclede again pleaded 'hypothetically,' if Hampton, Jack Burton, Thompson and Crusader did not receive the 'benefit and use' of the gas, then Zumsteg 'received the use and benefit.' Laclede prayed that 'in the event' that it did not recover judgment against Hampton (Count I), Jack Burton (Count II), Thompson (Count III) and Crusader (Count IV), then it prayed judgment against Zumsteg (Count V); (f) that Earl Jenkins engaged in the operation of a service station or car wash or both on the premises and occupied the premises from March 1, 1968, to November 2, 1970, and during that period Laclede 'furnished gas and gas services' to the premises. Laclede again pleaded 'hpothetically' if Hampton Speedway, Jack Burton, Crusader and Zumsteg (not Thompson) did not receive 'the benefit and use' of the gas during the period, then Jenkins 'received the use and benefit' of the gas. Laclede prayed, 'in the event' it did not recover judgment against Hampton, Burton, Crusader and Zumsteg, that it receive judgment against Jenkins.

Reduced therefore to basics, Laclede alleged that it furnished gas and gas service to the premises at 2130 Hampton Avenue and that one or more of several companies or individuals were alternatively and hypothetically responsible to pay the same. 1

In due time, Crusader filed its motion to dismiss, and Hampton and Jack Burton filed its joint motion to dismiss. 2 Essentially, they were the same.

The motions urged that: (1) None of the counts of the third amended petition meets the 'requisites' of § 393.130, RSMo.1969, V.A.M.S., which requires that the rates attempted to be charged 'have been allowed by order or decision of the Missouri Public Service Commission or that the charges are just and reasonable'; (2) the third amended petition, 'being based on the same erroneous allegations as previously made, is oppressive and harassing of the defendants . . .'; (3) the counts are 'not clearly succinctly made alternative,' and contain inconsistent allegations; (4) the plaintiff has improperly joined defendants in several causes of action for unrelated periods of time and there are 'no common transactional facts' between the defendants; (5) although the pleadings appear to be for an account, Laclede has failed to itemize any account or show the nature thereof; (6) by reason of § 393.130, the demands 'appear' to be in excess of that allowed by law; and (7) the petition fails to state a claim because the allegation 'use and benefit' standing alone does not constitute any claim for relief, and no facts have been pleaded showing any unjust enrichment.

On September 21, 1973, the trial court after argument sustained the defendants' motions. Notice of appeal was filed on October 1, 1973. Over a month later, on November 7, 1973, the trial court entered an order stating that 'for the reasons set out in defendants' various motions to dismiss filed in the cause herein, and for the reasons stated in the oral hearings thereon, the Court does hereby dismiss with prejudice said causes-of-action . . ..' The court noted that Laclede represented that it will not further amend its petition.

Pending appeal and after the briefs were filed here, on November 22, 1974, Hampton Speedway and Jack Burton filed a motion for leave to file deposition transcripts and deposition exhibits. The motion sought leave of this court to file for 'use on appeal' the transcript of the depositions taken by defendants of Henry F. Kramer, Assistant Manager, Customer Relations of Laclede, and Edward F. Pohrer, taken on behalf of plaintiff, and the exhibits attached thereto. The grounds for the motion asserted that (1) the question of discovery was first raised by plaintiff's brief in urging that it was not allowed the opportunity of going forward with its discovery; (2) respondents-defendants cited, in their brief, portions of the deposition testimony; (3) Laclede's reply brief refers to portions of the deposition testimony; (4) this court would be 'unduly hampered' if we did not have available the deposition testimony and exhibits to determine the propriety of the matter set out in the briefs; (5) the evidence adduced by deposition was fully argued in the trial court; and (6) one of respondent's attorneys specifically requested that such deposition be included in the transcript. 3

Laclede's counsel filed suggestion in opposition to the defendants' motion for leave to file depositions urging that this court can review the case only on the record presented and deposition in a pending action cannot be considered by the appellate court on an appeal from a judgment dismissing an action for failure to state a claim.

Defendants, in their brief in this court, urge that the trial court could correctly treat the motions to dismiss as ones for summary judgment and give judgment to those defendants whom the evidence establishes are not the customers of Laclede. Respondents rely on Rules 55.27, 74.04, V.A.M.R., and Empiregas, Inc. of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657 (Mo.1974). Defendants argue that in oral arguments before the trial court, 'discovery facts' were 'regularly alluded to and referenced.'

We deny the motion of defendants for leave to file the deposition transcripts and exhibits. It is elementary that an appellate court can review a cause only on the record presented. O'Connell v. Roper Electric Company, Inc., 498 S.W.2d 847, 857 (Mo.App.1973). The cases uniformly state that an appellate court must take the record as it comes without supplementation. Pretti v. Herre, 403 S.W.2d 568, 569 (Mo.1966); Cardin v. King, 344 S.W.2d 633, 635 (Mo.App.1961).

As to defendants' contention that the trial court treat the motion as one for summary judgment, defendants rely on Rule 55.27. Rule 55.27(a), effective September 1, 1973, provides that '. . . (i)f, 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.'

This rule authorizes the court to treat a motion to dismiss as a motion for summary judgment when matters outside the pleadings are presented and not excluded. This rule is identical to Federal Rule 12(b). While the trial court is authorized to treat the motion to dismiss as a motion for summary...

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