Ruthrauff v. Kensinger

• Decision Date: 02 March 1974
• Docket Number: No. 47174,47174
• Citation: 214 Kan. 185,519 P.2d 661
• Parties: Doris RUTHRAUFF, Administratrix, c.t.a. of the Estate of Helen F. Smith, Deceased, Appellant, v. Lyle KENSINGER d/b/a Kensinger-Haight Construction Company, and Johnnie White, Sr. d/b/a White Plumbing Company, Appellees, and City of Chanute, Kansas, a municipal corporation, Defendant.
• Court: Kansas Supreme Court

Page 661

519 P.2d 661

214 Kan. 185

Doris RUTHRAUFF, Administratrix, c.t.a. of the Estate of Helen F. Smith, Deceased, Appellant, v. Lyle KENSINGER d/b/a Kensinger-Haight Construction Company, and Johnnie White, Sr. d/b/a White Plumbing Company, Appellees,

and

City of Chanute, Kansas, a municipal corporation, Defendant.

No. 47174.

Supreme Court of Kansas.

March 2, 1974.

Syllabus by the Court

1. The period for bringing an action based on negigent tort as limited by K.S.A. 1973 Supp. 60-513 does not begin until the tortious act first causes substantial injury.

2. The provision in K.S.A.1973 Supp. 60-513 imposing a 10 year limitation is intended to apply only to those cases in which the fact of injury is not reasonably ascertainable until some time after substantial injury occurs.

3. In an action arising from a gas explosion and fire which destroyed a residence and injured the occupants the record on appeal is examined, rules of statutory construction are considered and applied and it is held: (1) The claim based on negligent tort was filed within the primary 2 year period as required by K.S.A.1973 Supp. 60-513; (2) The 10 year limitation provision of the statute which states, 'but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action' does not apply to a klclaim where the substantial not apply to a claim where the substantial ascertainable; and (3) The summary judgments in favor of appellees were improperly entered on the tort claims.

J. L. Weigand, Jr., Wichita, argued the cause, and Dennis L. Gillen, Wichita, was with him on the brief for appellant.

Jack L. Lively, Coffeyville, argued the cause, and William D. Coombs, Balch & Briley, Chanute, and William A. Hensley, Wichita, were with him on the brief for Lyle Kensinger d/b/a Kensinger-Haight Const. Co., appellee.

Raymond L. Dahlberg, Turner, Chartered, Great Bend, argued the cause, and H. Lee Turner, Great Bend was with him on the brief for Johnnie White, Sr. d/b/a White Plumbing Co., appellee.

FROMME, Justice:

This action arose from a gas explosion and fire which destroyed the residence of Mr. and Mrs. Robert Smith on September 17, 1970. Mrs. Smith was severely burned and died twelve days later as a result of the injuries she received. The administratrix c. t. a. of her estate, who filed the present action on September 15, 1972, will be referred to as the plaintiff. The action was brought against Lyle Kensinger d/b/a Kensinger-Haight Construction Company, who contracted and built the house in May, 1959, and against Johnnie White, Sr. d/b/a White Plumbing Company, who subcontracted the plumbing and installed the gas pipes in said house. Claim was also filed against the city for the alleged failure to odorize the natural gas which it furnished to the residence; this claim is still pending in the court below.

Summary judgment was entered by the trial court in favor of both Kensinger and White based on the statutes of limitation.

The plaintiff appeals.

A few preliminary facts are necessary to understand the questions posed on appeal. Kensinger and White completed their last work on this residence in May, 1959. Kensinger sold the house to Charles Hall on May 31, 1960. On December 5, 1969, Charles Hall sold the house to Mr. and Mrs. Smith. On September 17, 1970, an explosion and fire occurred which caused the death of Mrs. Smith. The present action was filed on September 15, 1972, within 2 years from the date of the explosion and fire.

K.S.A. 60-510 provides:

'Civil actions, other than for the recovery of real property, can only be commenced within the period prescribed in the following sections of this article, after the cause of action shall have accrued.' (Emphasis supplied.)

K.S.A.1973 Supp. 60-513, which was in effect at the time the present cause of action accrued, provides:

'The following actions shall be brought within two (2) years: (1) An action for trespass upon real property.

'(2) An action for taking, detaining or injuring personal property, including actions for the specifice recovery thereof.

'(3) An action for relief on the ground of fraud, but the cause of action shall not be deemed to have accrued until the fraud is discovered.

'(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.

'(5) An action for wrongful death.

'(6) An action to recover for an ionizing radiation injury as provided in sections 2, 3 and 4 (60-513a. 60-513b and 60-513c) of this act.

'The cause of action in this section shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.' (Emphasis supplied.)

In entering summary judgment in favor of Kensinger and White the trial court based its decision on the 10 year provision contained in the last clause of the final paragraph of 60-513, supra, and said:

'The paragraph explicitly provides in its inception that it applies to the entire section and its significance for our purpose lies in referring the ten year bar not to the cause of action, but to the act giving rise to the cause of action. To this Court the meaning is not debatable. No cause of action can arise if more than ten years have elapsed since the alleged wrongful act.'

It is admitted that any negligent act or acts of Kensinger and White, which in any way contributed to the explosion, would have had to occur in 1959. This would be more than 10 years before the explosion and fire. The plaintiff-appellant contends the 10 year provision was intended to apply only to those cases where substantial injury occurs but the fact of injury is not reasonably ascertainable until some time after the initial injury. Plaintiff further argues that the 10 year provsion should not be construed to apply to those cases where the initial injury and the fact of injury are simultaneous and immediately ascertainable. Plaintiff points out that if the trial court's decision is correct the plaintiff is foreclosed from bringing the action before the action accrued. In other words plaintiff says limitation on the period in which the cause limitation on the period in which the jcause of action may be commenced but as an absolute bar which destroys the right of action before it accrues.

The appellees, on the other hand, argue in support of the ktrial court's decision that the negligent act causing the explosion was the defective installation of the gas pipes, that the 10 year period of limitation provided in the last paragraph of the statute was made to run from the time of the act giving rise to the cause of action and that the final paragraph by its plain wording relates to any and all causes of action mentioned in the section. Appellees further assert that if appellant's construction of the statute is accepted by this court it will negate the 10 year provision and make it useless.

Proper construction is not without difficulty and we must be mindful of the rules of statutory construction. In construing the statutes of this state words and phrases must be construed according to the context and the approved usage of the language, but technical words and phrases which have acquired a peculiar and appropriate meaning in the law shall be construed according to their meaning acquired in the law. (K.S.A. 77-201, Second.) A primary rule for the construction of a statute is to find the legislative intent from its language, and where the language used is plain and unambiguous and also approprate to an obvious purpose the court should follow the intent as expressed by the words used. (City of Overland Park v. Nikias, 209 Kan. 643, Syl. 2, 498 P.2d 56.) In examining an act of the legislature courts are required to consider and construe all parts thereof in parimateria (State v. Dailey, 209 Kan. 707, Syl. 23, 498 P.2d 614) and may consider the historical background of the legislative act (Curless v. Board of County Commissioners, 197 Kan. 580, Syl. 2, 419 P.2d 876). It is the duty of the courts to reconcile various provisions of an act in order to make them consistent, harmonious and sensible if that can be done without doing violence to plain provisions contained therein. (State v. Sumner, 169 Kan. 516, 219 P.2d 438; Gnadt v. Durr, 208 Kan. 783, 786, 494 P.2d 1219.)

We note that the general prefatory section, K.S.A. 60-510, relating to the limitations prescribed for commencing civil actions other than for recovery of real property, provides that the period of limitation 'can only be commenced . . . after the cause of action shall have accrued.'

The time when a cause of action accrues and can be commenced has acquired an appropriate meaning in the law of Kansas. The terminology 'when a cause of action has arisen' and 'when a cause of action has accrued' are synonymous. Both phrases designate that first point in time when one party has the right to sue another for damages suffered. See Bruner v. Martin, 76 Kan. 862, 866, 93 P. 165, and Cleghorn v. Thompson, 62 Kan. 727, 64 P. 605.

Prior to 1951 in situations where tortious acts caused immediate damage this court had indicated that the statute of limitations commenced to run at the time of the occurrence of the negligent act. (See Becker v. Porter, 119 Kan. 626, 240 Pac. 584, and Becker v. Floersch, 153 Kan. 374, 110 P.2d 752.)

In 1951, however, this court was faced with a clear-cut situation in which the wrongful act occurred more than 2 years prior to the filing of the suit but the resultant damage occurred later. In Kitchener v. Williams, 171 Kan. 540, 236 P.2d 64, suit was brought within 2 years...