Cochran v. Appalachian Power Co. ( 1978 )

Neely, Justice,

dissenting:

I dissent on the grounds that syl. pt. 1 is wrong and the lower court should have granted the appellant Power Company’s motion to dismiss on statute of limitations grounds. It is obvious that the appellee pled a good cause of action coming within the statute of limitations; however, at trial he proved only a cause of action barred by the statute of limitations.

Appellees alleged that on or about March 6, 1968 the appellant Power Company “... willfully, wantonly and negligently ...” removed the power line and thus terminated appellant’s power supply. The complaint was filed on March 3, 1970. Appellant’s evidence at trial showed that the power was actually terminated on May 3, 1966, four years before the action was filed. Appellant Power Company contends, and I agree, that the action was thus barred by the two year statute of limitations applicable to personal actions for property damage. W.Va. Code, 55-2-12 [1963]. While the complaint alleged a written contract giving rise to a duty, the action brought was tortious in nature. Many tort actions have their origins in contracts. As this Court noted in Homes v. Monongahela Power Co., 136 W. Va. 877, 69 S.E.2d 131 (1952):

Where the transaction complained of had its origin in a contract which places the parties in such a relation that in attempting to perform the promised service the tort was committed, the breach of contract is not the gravamen of the action. The contract in such case is mere inducement, creating the state of things which furnishes the occasion of the tort, and in all such cases the remedy is an action ex delicto and not an action ex contractu,

136 W. Va. at 884, 69 S.E.2d at 136, citing 12 Am Jur., Contracts, § 459 (1938).

While a contract was alleged in the complaint, there was no express charge of breach of contract. Rather the appellees used words that denote tort exclusively such as “willfully, wantonly and negligently.” Accord, Family Savings and Loan, Inc. v. Ciccarello, _ W. Va. _, 207 S.E.2d 157 (1974).

Furthermore, the measure of damages is differrent in tort than it is in contract although this case does not warrant a dissertation on that subject.

The proof of damages was at best sloppy. The reason that strict standards of proof of damages are required is that it is usually impossible for the defendant to offer any proof concerning damages whatsoever. To say that the defendant offered no countervailing proof is to say nothing; the real question is whether plaintiff proved his damages under applicable rules of evidence, and in this case he did not.