Waugh v. Guthrie Gas, Light, Fuel & Improvement Co.

• Decision Date: 07 January 1913
• Parties: WAUGH v. GUTHRIE GAS, LIGHT, FUEL & IMPROVEMENT CO. [d1]
• Court: Oklahoma Supreme Court

131 P. 174

37 Okla. 239, 1913 OK 42

WAUGH v. GUTHRIE GAS, LIGHT, FUEL & IMPROVEMENT CO. ^[d1]

Supreme Court of Oklahoma

January 7, 1913

Syllabus by the Court.

An action for damages for personal injuries, being an action for injury to the rights of a person, not arising on contract, is governed by the third subdivision of section 5550, Comp. Laws 1909, and must be brought within two years after the cause of action shall have accrued.

Fraudulent concealment constitutes an implied exception to the statute of limitations, and a party who wrongfully conceals material facts, and thereby prevents a discovery of his wrong, or the fact that a cause of action has accrued against him, is not allowed to take advantage of his own wrong by pleading the statute, the purpose of which is to prevent wrong and fraud.

The mere failure to disclose that a cause of action exists is not sufficient to prevent the running of the statute. There must be something more; some actual artifice to prevent knowledge of the fact; some affirmative act of concealment or some misrepresentation to exclude suspicion and prevent inquiry.

Commissioners' Opinion, Division No. 1. Appeal from District Court, Logan County; A. H. Huston, Judge.

Action by Le Roy E. Waugh against the Guthrie Gas, Light, Fuel & Improvement Company for damages for personal injury. From a judgment in favor of defendant, plaintiff appeals. Reversed and remanded.

Joseph Wisby, John A. Remy, and C. G. Hornor, all of Guthrie, for plaintiff in error.

Dale Bierer & Hegler, of Guthrie, for defendant in error.

SHARP C.

Plaintiff's petition, filed in the district court of Logan county, June 7, 1910, charged that defendant company was on April 7, 1907 engaged in the business of supplying artificial gas to the residents of the city of Guthrie, for use in their residences and places of business, and as such had constructed its gas pipe lines and other equipment throughout said city; that plaintiff was a merchant and occupied the ground floor room of a certain store building at No. 114 West Harrison avenue in said city; that said store building was piped for and supplied with water received through the water supply line of the waterworks of said city that the defendant company's gas line was constructed in the alleyway at the rear of said building, in close proximity with and near the water supply line; and that, by permitting its said gas line to become out of repair to an extent that gas escaped therefrom at a point near the water supply line in the rear of plaintiff's building, said gas was transmitted along, to, and under, the building occupied by plaintiff, and there caused to be ignited and exploded, whereby, and on account of which wrongful and negligent acts, plaintiff sustained permanent and serious physical injuries as described in said petition. Anticipating the plea of limitations, plaintiff sought to avoid that defense by charging that defendant was a public service corporation, and that there devolved upon it, under and by virtue of its franchise and by-laws, the high responsibility of keeping its pipe line and appliances in good repair, etc.; that this duty was one owing not only to its patrons, but to the public in general; that, notwithstanding the duties and obligations due and owing by defendant, it wholly failed to perform them in the above particulars, and further willfully, and after the date of said accident, concealed the facts connected therewith from plaintiff and all persons acting for and in his behalf. The petition alleged: "That the defendant, in order to conceal, and in the act of concealing, the said facts of the cause of said explosion from the plaintiff, at and for some time thereafter was guilty of wrongful, immoral, and unlawful conduct as follows, viz.: By that of one of its officers, agents, or employés, one whose name is unknown to the plaintiff, immediately after said explosion presenting himself at said building and preventing divers persons, who were friends and representatives of the plaintiff, from entering said building and making any investigations whatever as to the cause thereof, and then and there, by words, signs, and gestures, unknown to the plaintiff leading the plaintiff's said friends and representatives to believe that his action was in order to protect, and for the purpose of protecting, the interest of property; by the defendant, subsequent to said explosion; and further by preventing its said officers, agents, and employés from disclosing any facts of the cause thereof to persons other than the officers, agents, and employés of the defendant; and by the defendant making, and causing to be made, false, fictitious, and fraudulent reports as to the cause of said explosion--all of which was done by the defendant for the purpose of leading this plaintiff to believe that said explosion was not caused by the escape of artificial gas from the defendant's gas lines." It was further charged that plaintiff had made diligent efforts to discover the cause of the explosion by making inquiries from the officers and employés of the defendant, and from other persons, and by examination of the premises and lines of the defendant company, but was wholly unable to discover the cause thereof until within one month of the date of filing his petition.

The sufficiency of the petition was attacked by demurrer; the defendant specifically pleading the two-year statute of limitations. The demurrer was sustained. Plaintiff electing to stand on the sufficiency of his petition, judgment was rendered for the defendant, and, from this judgment, an appeal has been prosecuted. The statute of limitations applicable is, we think, the third subdivision of section 5550, Comp. Laws 1909, which provides that an action for the injury to the rights of another, not arising on contract, and not therein enumerated, shall be brought within two years after the cause of action shall have accrued. Atchison, T. & S. F. Ry. Co. v. King, 31 Kan. 708, 3 P. 565; Missouri, K. & T. Ry. Co. v. Wilcox, 32 Okl. 51, 121 P. 656.

Plaintiff's injury was sustained more than two years before the bringing of the action, so that, unless the alleged fraudulent concealment by defendant of the facts serves to postpone the operation of the statute, plaintiff's cause of action was barred by limitations. This is the sole remaining question presented for our determination. The statute contains no exception of the kind; and, the action not being predicated upon fraud, that provision of the statute, authorizing suit to be commenced, in an action for relief on the ground of fraud, within two years after the discovery of the fraud, does not apply. The first three subdivisions of section 5550, Comp. Laws 1909, are identical with the same numbered provisions of section 5610, General Statutes of Kansas 1909. It does not appear, from an examination of the authorities that we have made, that the exact question here presented was ever before the Supreme Court of Kansas prior to the adoption by the territorial Legislature of the above part of the statute, though in the early case of Voss v. Bachop, 5 Kan. 59, we find that the Supreme Court of that state refused to permit the plea of the statute of limitations in bar of an action brought by a client against an attorney for money collected and not accounted for. The court, speaking through Kingman, C.J., held that, the allegations of the petition charging that defendant, by his own misrepresentations, had prevented a demand being made on him, said defendant was estopped by his own acts from setting up the statute, and cited in support of its position the case of Way v. Cutting, 20 N.H. 190, a case not involving any professional or fiduciary relationship. In quoting from the latter case the court said: " 'The principle of natural justice and of positive law that precludes a party from deriving a benefit from his own wrong has from an early period been applied by courts, both of law and equity, to the construction of the statute of limitations. It has accordingly been repeatedly held that a party shall not be protected by the lapse of time during which he has, by his own fraud, prevented the party whom he has injured from asserting his rights at law, and that he, against whom the statute bar is interposed, may avoid it by showing that he has been kept in ignorance of his claim till within the period limited by law for bringing his suit by the fraudulent practices of the party setting up the defense.' "

The question, in a somewhat changed form, was again before the Supreme Court of Kansas in McMullen v. Winfield Bldg. & Loan Ass'n, 64 Kan. 298, 67 P. 892, 56 L. R. A. 924 91 Am. St. Rep. 236. There the default was made more than six years prior to the commencement of the action; but it was charged that the secretary of the company artfully and fraudulently concealed his misappropriations by making false entries, etc., in the books, and that the association had no knowledge of his wrongful and fraudulent acts until shortly before bringing its action. It was observed by the court: "Did the fraudulent concealment interfere with the operation of the statute of limitations? Did the cause of action accrue when the fraud was committed, or not until the fraudulent conduct and defaults were discovered? Courts of equity have been holding that, independent of a statutory provision, the defendant's fraud and concealment of a cause of action will postpone the running of the statute of limitations until such time as the plaintiff discovers the fraud, and this upon the theory that the defendant, having by his own wrong and fraud prevented the plaintiff from bringing his action, cannot take advantage of his own wrong by setting up the statute as a defense. Some authorities confine this...