De Paul Hospital School of Nursing, Inc. v. Southwestern Bell Tel. Co.

• Decision Date: 04 May 1976
• Docket Number: No. 36058,36058
• Citation: 539 S.W.2d 542
• Parties: DE PAUL HOSPITAL SCHOOL OF NURSING, INC., a corporation, Plaintiff-Respondent, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 542

539 S.W.2d 542

DE PAUL HOSPITAL SCHOOL OF NURSING, INC., a corporation, Plaintiff-Respondent, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation,

Defendant-Appellant.

No. 36058.

Missouri Court of Appeals, St. Louis District, Division One.

May 4, 1976.

Motion for Rehearing or Transfer to Court En Banc or

Transfer to Supreme Court

Denied June 15, 1976.

Application to Transfer Denied Sept. 13, 1976.

Coburn, Croft, Shepherd & Herzog, John R. McFarland, William C. Sullivan, St. Louis, James E. Taylor, Kansas City, for defendant-appellant.

Anderson, Gilbert, Wolfort, Allen & Bierman, Norman Bierman, St. Louis, for plaintiff-respondent.

RENDLEN, Judge.

Southwestern Bell Telephone Company appeals the judgment favoring De Paul Hospital School of Nursing, Inc., awarding $61,136.49 damages with interest for rate overcharges under § 392.200, RSMo. 1969, ¹ and attorney's fees of $26,000 under § 392.350 of the statutes. For reasons we shall discuss, the judgment is affirmed.

Respondent (hereinafter Nursing School) maintains an eight-story nurses' residence adjacent to De Paul Hospital in St. Louis. The residence, operating under a hotel license, has 200 bedrooms of which approximately 53 are used by transient guests including female friends and families of student nurses and patients in the hospital. In May, 1953, appellant (hereinafter Telephone Company) installed a telephone system in the nurses' residence, consisting of a Private Branch Exchange (PBX) switchboard, 220 stations, three trunk lines, and seven tie lines to the hospital switchboard. Appellant charged the 'commercial flat rate' from May, 1953 to July 28, 1968, and the 'commercial measured rate' from that date through January 4, 1972.

During this period, 1953--1972, appellant charged the lower 'Hotel-Motel Rate' to hotels and apartment hotels offering their guests substantially the same service as that provided the Nursing School residents, including a telephone in each room with local and long distance call privileges charged on a per call basis. Also during this period appellant charged two institutions, of similar character for these purposes, the Missouri Athletic Club (hereinafter M.A.C.) and the Evangeline Residence, the lower 'Hotel-Motel Rate.'

The Nursing School unwittingly paid the higher rate until January, 1968, when, being advised of its entitlement to the lower rate by Mr. Thomas Mattingly of Dial Economy Corp., the Nursing School opened negotiations to secure a rate reduction and recover past overcharges. A detailed recital of these negotiations is unnecessary, except to note they failed and on October 9, 1968, the Nursing School filed its complaint with the Public Service Commission. After hearing, the Commission entered its order June 10, 1969, finding that the Nursing School was not entitled to the 'Hotel-Motel Rate.' This order, appealed to the Cole County Circuit Court, was set aside as unreasonable and unlawful because 'by its findings the Commission wholly disregarded the substance of the complaint, all of the briefs and all of the evidence to the effect that the complainant in this case was being discriminated against . . . The Commission completely ignored the one question it was being asked to decide.' This judgment of the trial court was affirmed on appeal. See State v. ex rel. De Paul Hospital v. Public Service Commission, 464 S.W.2d 737 (Mo.App.1970). On the subsequent rehearing before the Commission, appellant was ordered to charge respondent the lower 'Hotel-Motel Rate' and in conformance with that order, the rates were reduced effective January 4, 1972.

In the present suit, filed January 12, 1972, the court awarded damages for overcharges for the period May, 1953 to January, 1972, with interest, all in the amount of $61,136.49. Appellant, while otherwise excepting to the finding, does not challenge the accuracy of the calculated overcharge. Similarly, the court heard detailed evidence of respondent's attorney's service and though appellant questions the propriety of the award, no challenge is made to the amount, i.e., $26,000.

Appellant presents two contentions for review: First, that the claim for damages accrued month by month as overcharges were paid and either the three year or the five year statute of limitations applies, barring a substantial portion of the claim; and second, that the trial court mistakenly found the acts of appellant were 'willful,' and thus erred in awarding attorney's fees.

'Our review of this court tried case is governed by Rule 73.01(3) V.A.M.R., which directs us to review the case on the law and the evidence, giving due regard to the trial court to have judged the credibility of the witnesses. Wurtz v. Daniel Hamm Drayage Co., 530 S.W.2d 752 (Mo.App.1975); Brunswick Corp. v. Briscoe, 523 S.W.2d 115 (Mo.App.1975). And while Rule 73.01, as amended effective January 1, 1975, deleted the phrase 'the judgment shall not be set aside unless clearly erroneous' as it previously appeared in Rule 73.01(d), the appellate courts are still admonished not to be 'judicial second guessers' as to trial court findings. ² Morris v. Holland, 529 S.W.2d 948 (Mo.App.1975). As stated in Morris v. Holland, supra, at 952: '(T)hat when the decision depends upon the credibility of the witness and the weight of the evidence, an appellate court should generally defer to the findings of the trial court's unless it is satisfied that they should have been otherwise. " Brand v. Brand, 534 S.W.2d 628 (Mo.App., 1976).

When as here, the trial court has provided no findings of fact or conclusions of law, none having been requested, 'all fact issues shall be deemed found in accordance with the result reached and the judgment must be affirmed, if it is correct on any reasonable theory supported by the evidence.' Gottlieb v. LaBrunerie, 514 S.W.2d 27, 28(1) (Mo.App.1974).

Examining appellant's first contention that a substantial portion of the award is barred by the applicable statute of limitations, we note that the damages allowed were based on overcharges from May, 1953 to January, 1972, (when the overcharges ceased) plus interest to the date of judgment in the trial court. As previously stated, the parties agree that this dollar amount correctly reflects the overcharge plus interest for the period shown; however, there is sharp disagreement as to the period for which damages for such overcharges should have been allowed. Appellant asserts respondent's cause of action accrued month by month on each overcharge and that the applicable statute of limitations will bar recovery on all overcharges more than three or five years immediately prior to commencement of the proceedings before the Missouri Public Service Commission on October 9, 1968. By appellant's argument, amounts accruing prior to October 9, 1965, would be barred if the three year statute is applicable, while those accruing prior to October 9, 1963, are barred if the five year statute applies. No suggestion is made that the filing of the original complaint did not toll the statutes of limitations; accordingly, it is conceded that overcharges for the period October 9, 1968, to January 4, 1972, are due.

As we interpret appellant's argument, § 392.350 is a penal statute because of its provision regarding attorney's fees ³ so that the three year limitations period provided by § 516.130 or § 516.400, ⁴ is applicable limiting damages to $10,355.40. If it is not barred by either three year statute, appellant asserts the claim is barred by the general five year statute of limitations, § 516.110, narrowing damages to $17,456.87. For reasons set out hereafter, we need not decide which statute would apply in an appropriate case under § 392.350.

Respondent correctly argues that the statutes of limitations asserted by appellant are governed by § 516.100, RSMo 1969, which provides that 'civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued; . . .' (Emphasis ours). The key issue here is the time of accrual of the cause of action. We agree with respondent that no part of its claim is barred by any statute of limitations because no cause of action for overcharges and discrimination under § 392.200 could be brought until the Public Service Commission acted on the complaint of October 9, 1968, and finally determined that, of the two published rates, respondent was entitled to the hotel rate. This did not occur until the effective date of the final order, January 4, 1972. Only then did respondent's cause of action accrue and become capable of ascertainment and the last item of its damage become known, 'so that all resulting damage could be recovered, and full and complete relief obtained.' Section 516.100. 'In general a cause or right of action accrues, so as to start the running of the statute of limitations, as soon as the right to institute and maintain a suit arises, or when there is a demand capable of present enforcement, or when there is a remedy available; and whenever one person may sue another a cause of action has accrued and the statute of limitations begins to run, but not until that time. So, whether at law or in equity, the cause of action arises when, and only when, the aggrieved person has the right to apply to the proper tribunal for relief. The statute does not attach to a claim for which there is no right of action, and does not run against a right for which there is no corresponding remedy or for which judgment cannot be obtained. The true test, therefore, to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result, regardless of the time when actual damage results; the fact that he might previously have brought a premature or groundless action is immaterial.' (Emphasis added). 54 C.J.S. Limitations of Actions § 109, pp....