Omaha Paper Stock Co., Inc. v. Martin K. Eby Const. Co., Inc.
| Decision Date | 22 May 1975 |
| Docket Number | No. 39813,39813 |
| Citation | 193 Neb. 848,230 N.W.2d 87 |
| Parties | OMAHA PAPER STOCK COMPANY, INC., a Nebraska Corporation, Appellant, v. MARTIN K. EBY CONSTRUCTION CO., INC., a corporation, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
An action for an injury to the rights of the plaintiff accrues under section 25--207, R.R.S.1943, when the damage occurs and not when plaintiff discovers the cause of the damage.
Abrahams, Kaslow & Cassman, Frederick S. Cassman, Omaha, for appellant.
Walsh, Walentine & Miles, Thomas J. Walsh, Omaha, for appellee.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.
Plaintiff appeals from an order of dismissal entered when it elected to stand on its amended petition to which the trial court had sustained defendant's demurrer. The sole issue presented is when did plaintiff's cause of action accrue and the statute of limitations commence to run? We affirm.
On October 1, 1968, fire substantially destroyed plaintiff's warehouse, when no water flowed into its sprinkler system due to an underground break at some unknown point along the waterline. In October 1971, plaintiff discovered that its waterline had ruptured due to the settling of a 10-foot interceptor sewer laid by the defendant in 1960. Plaintiff predicates this action on the alleged negligent construction of that sewer in 1960. Plaintiff contends the sewer was constructed immediately over its waterline without adequate clearance or support and that its waterline ruptured due to the settling of this interceptor sewer.
Section 25--207, R.R.S.1943, is the controlling statute herein. It provides as follows: 'The following actions can only be brought within four years: (1) An action for trespass upon real property; (2) an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; (3) an action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated; and (4) an action for relief on the ground of fraud, but the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud, except as provided in sections 76--288 to 76--298.'
The period of limitations for plaintiff's tort action is 4 years. For the purposes of this appeal we accept the premise on which this case was presented by the parties. Did the statute commence to run on October 1, 1968, when plaintiff was actually damaged, or October 1971, when plaintiff learned what caused the break in its waterline?
Plaintiff analogizes its situation to our flood and overflow cases where we have held that the right to damages for an obstruction of a stream by an insufficient culvert or drain does not accrue when the structure is built, but when the overflow actually results. See Schmutte v. State (1946), 147 Neb. 193, 22 N.W.2d 691. Actually, there is no analogy. In those cases we hold the statute begins to run when the injury actually occurs. Plaintiff here is contending for a discovery of cause rule which is an entirely different matter from the occurrence of the damage or injury.
It is to be noted that in subsection (4) of section 25--207, R.R.S.1943, the cause of action in a case involving fraud does not accrue until the discovery of the fraud. Subsection (3) is not so limited. Plaintiff is seeking to have us read into subsection (3) the point for which it is contending, the cause of action shall not be deemed to have accrued until the discovery of the existence of the wrongful act. We decline to do so.
Plaintiff know by October 1, 1968, that a break had occurred in its waterline. It would seem reasonable to believe when plaintiff discovered that 'no water flowed from the 8-inch water line to the automatic sprinkler systems' some attempt would have been made promptly to trace the cause. Plaintiff slept on whatever rights it may have had for 3 years. When the waterline was...
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...of action accrues when injury actually occurs and there is a basis for a cause of action. Omaha Paper Stock Company, Inc. v. Martin K. Eby Construction Company, Inc., 1975, 193 Neb. 848, 230 N.W.2d 87. A cause of action accrues and the statute of limitations begins to run when the aggrieved......
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