Raftery v. Wm. C. Vick Construction Co.

230 S.E.2d 405, 291 N.C. 180, 1976 N.C. LEXIS 966

• Court: Supreme Court of North Carolina
• Decided: December 7, 1976
• Docket: 66
• Status: Published

Opinions

LAKE, Justice.

For the purpose of this appeal it must be assumed that, although the crane in question had been in use for 19 years without any known malfunction, the falling of the boom was due to a defect proximately caused by the negligence of the manufacturer in the design or manufacture of the crane. Thus, we are not presently concerned with whether the plaintiff, upon trial of the action, can produce evidence of such negligence and causation. The sole question is whether, assuming such negligence was a proximate cause of the death of the plaintiff’s intestate, the statutes of this State preclude any recovery for such death.

G.S. 28A-18-2 provides:

“Death by wrongful act of another; recovery not assets.— (a) When the death of a person is caused by a wrongful act, neglect or default of another, such as tooidd, if the injured person had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their personal representatives or collectors, shall be liable to an action for damages, to be brought by the personal representative or collector of the decedent; and this notwithstanding the death, and although the wrongful act, neglect or default, causing the death, amounts in law to a felony. * * * .” (Emphasis added.)

G.S. 1-53(4), in conjunction with G.S. 1-46, provides that an action for damages on account of the death of a person caused by the wrongful act, neglect or default of another must be brought within two years. This is a statute of limitations, not a provision establishing a condition precedent to the cause of action such as was the provision of G.S. 28-173, the predecessor of G.S. 28A-18-2, prior to its amendment in 1951. Brown v. Casualty Co., 285 N.C. 313, 204 S.E. 2d 829 (1974); Kinlaw v. R. R., 269 N.C. 110, 119, 152 S.E. 2d 329 (1967); Graves v. Welborn, 260 N.C. 688, 133 S.E. 2d 761 (1963); McCrater v. Engineering Corp., 248 N.C. 707, 104 S.E. 2d 858 (1958).

G.S. 1-15(a), a general provision applicable to all statutes of limitations, provides, “Civil actions can only be commenced within the periods prescribed in this Chapter, after the cause of action has accrued, except where in special cases a different limitation is prescribed by statute.” (Emphasis added.) “In no event can a statute of limitations begin to run until plaintiff is entitled to institute action.” Strong, N. C. Index 2d, Limitation of Actions, § 4. “The cause of action does not accrue until the injured party is at liberty to sue. The statute of limitations begins to run only when a party becomes liable to an action.” Aydlett v. Major & Loomis Co., 211 N.C. 548, 551, 191 S.E. 31 (1937). “Generally, a cause of action accrues to an injured party so as to start the running of the statute of limitations when he is at liberty to sue, being at that time under no disability.” Insurance Co. v. Insurance Co., 277 N.C. 216, 222, 176 (1970). “Ordinarily, the period of the statute of limitations begins to run when the plaintiff’s right to maintain an action for the wrong alleged accrues. The cause of action accrues when the wrong is complete, even though the injured party did not then know the wrong had been committed.” (Emphasis added.) Wilson v. Development Co., 276 N.C. 198, 171 S.E. 2d 873 (1970). “The only exception [prior to 1971], as pointed out in Lewis v. Shaver [236 N.C. 510, 73 S.E. 2d 320 (1952)], relates to actions grounded on allegations of fraud and mistake. G.S. 1-52(9).” Shearin v. Lloyd, 246 N.C. 363, 370, 98 S.E. 2d 508 (1957).

Obviously, the plaintiff could not bring an action for the wrongful death of her intestate until he died. She did so within two years from his death. Consequently, the action is not barred by G.S. 1-53(4), the statute of limitations relating specifically to actions for wrongful death;

We are thus brought to the question of whether the uncontroverted facts (for the purpose of this appeal) gave rise to a cause of action in the plaintiff for the wrongful death of her intestate. G.S. 28A-18-2, above quoted, makes it a condition precedent to such right of action in this plaintiff that the death of her intestate was caused by a wrongful act, neglect or default of the manufacturer of this crane “such as would, if the injured person had lived, have entitled him to an action for damages therefor.”

It will be observed that this condition precedent to the maintenance of this action does not, by its express terms, include a time limitation but, upon its face, relates to the nature of the “wrongful act, neglect or default” which caused the death and to the legal capacity of the decedent to sue therefor had he lived. For example, the administrator of an employee within'the Workmen’s Compensation Act cannot sue-the employer for the wrongful death of the employee since the employee could not have sued the employer for his injury had he lived. Horney v. Pool Co., 267 N.C. 521, 148 S.E. 2d 554 (1966). Likewise, except as G.S. 1-539.21 now provides, the administrator of an unemancipated minor child cannot bring an action for wrongful death against the child’s negligent parent. Capps v. Smith, 263 N.C. 120, 139 S.E. 2d 19 (1964); Lewis v. Insurance Co., 243 N.C. 55, 89 S.E. 2d 788 (1955); Goldsmith v. Samet, 201 N.C. 574, 160 S.E. 835 (1931). In Hoover v. R. R., 46 W.Va. 268, 33 S.E. 224 (1899), quoted with approval by this Court in Causey v. R. R., 166 N.C. 5, 81 S.E. 917 (1914), the Supreme Court of West Virginia said the similar wrongful death statute of that state, “plainly relates to the character of the injury, without regard to the question of time of suit or death.”

The alleged “wrongful act, neglect or default” of the defendant’s predecessor (which, for the purposes of this appeal, we must take to be established as a fact) is in the manufacture and sale of a crane which, by reason of its design and the materials used in its manufacture, was defective so that the boom fell while it was being used as contemplated by the manufacturer, struck the plaintiff’s intestate on the head and killed him, death apparently being instantaneous. Clearly, nothing else appearing, the plaintiff’s intestate, an employee of the ultimate purchaser and owner of the crane, had he lived, could have maintained an action for damages against such manufacturer-seller. Douglas v. Mallison, 265 N.C. 362, 370, 144 S.E. 2d 138 (1965); Wyatt v. Equipment Co., 253 N.C. 355, 117 S.E. 2d 21 (1960); Gwynn v. Motors, Inc., 252 N.C. 123, 113 S.E. 2d 302 (1960); Lemon v. Lumber Co., 251 N.C. 675, 111 S.E. 2d 868 (1960); Tyson v. Manufacturing Co., 249 N.C. 557, 107 S.E. 2d 170 (1959). Thus, if the condition precedent to the maintenance of the plaintiff’s action for his wrongful death is limited to the nature of the manufacturer-seller’s “wrongful act, neglect or default” and to the legal capacity of the plaintiff’s intestate to sue, that condition has been satisfied and the action is maintainable.

The defendant, however, contends that the condition precedent set forth in G.S. 28A-18-2(a) is not so limited. The defendant contends that this condition precedent extends also to the time period within which the plaintiff’s intestate could have instituted an action against the defendant for damages had the plaintiff’s intestate lived. Courts of other states have so construed similar provisions in the wrongful death statutes of those states. Ellis v. Black Diamond Coal Mining Co., 268 Ala. 576, 109 So. 2d 699 (1959); Milford Memorial Hospital, Inc. v. Elliott, 58 Del. 480, 210 A. 2d 858 (1965); Myers v. Plattsburgh, 214 N.Y.S. 2d 773 (1961); Howard v. Bell Telephone Co., 306 Pa. 518, 160 A. 613 (1932); Street v. Consumers Mining Corp., 185 Va. 561, 39 S.E. 2d 271 (1946). These cases hold that if a statute of limitations has run so that, at the time of the bringing of the wrongful death action, a suit by the deceased for his injuries would have been barred, the action for wrongful death cannot be maintained.

That is, the defendant contends that, had the plaintiff’s intestate survived the blow on the head, he would not have been “entitled” to an action for damages for his injury, due to the passage of time (approximately 19 years) between the manufacture and sale of the crane and the injury to the • plaintiff’s intestate, and, for that reason, the plaintiff may not maintain this action for wrongful death. We, therefore, turn to the question of whether, had the plaintiff’s intestate survived the blow on the head, he could lawfully have instituted against the defendant an action for his injuries proximately caused by the alleged negligence in the design and manufacture of the crane 19 years before the boom fell upon him.

We turn first to G.S. 1-52, which, in conjunction with G.S. 1-46, provides as follows:

G.S. 1-U6: “Periods prescribed. — The periods prescribed for the commencement of actions, other than for the recovery of real property, are as set forth in this article.”

G.S. 1-52: “Three years. — Within three years an action—

* * *

“(5) For criminal conversation, or for any other injury to the person or rights of another, not arising on contract and not hereafter eumerated. * * * .” (Emphasis added.)

Obviously, the negligence of the defendant (assumed for the purposes of this appeal) would confer no right of action upon the plaintiff’s intestate until he suffered an injury proximately caused thereby. Until then, his cause of action was not complete and, nothing else appearing, the three-year statute would not begin to run against his right to sue. Wilson v. Development Co., supra; Insurance Co. v. Insurance Co., supra; Strong, N. C. Index 2d, Limitation of Actions, § 4; McIntosh, North Carolina Practice and Procedure, 2d Ed. § 291; 51 Am. Jur. 2d, Limitation of Actions, § 107; 54 C.J.S., Limitation of Actions, §§ 108, 109. The cited section in American Jurisprudence states, “In other words, an action cannot be maintained until a right of action is complete, and hence the statute of limitations cannot run before that time.” The above cited section 108 in Corpus Juris Secundum states, “No statute of limitations runs against a person until he is allowed by law to do the things as to which the statute is interposed.”

The defendant says, however, the condition precedent established by G.S. 28A-18-2(a) has not been met because the plaintiff would not have been entitled to maintain an action for damages for his injuries, had he survived, for the reason that G.S. 1-15 (b) would deprive him of that right. That statute reads:

“(b) Except where otherwise provided by statute, a cause of action, other than one for wrongful death, having as an essential element bodily injury to the person or a defect in or damage to property which originated under circumstances making the injury, defect or damage not readily apparent to the claimant at the time of its origin, is deemed to have accrued at the time the injury was discovered by the claimant, or ought reasonably to have been discovered by him, whichever event first occurs; provided that in such cases the period shall not exceed ten years from the last act of the defendant giving rise to the claim for relief.” (Emphasis added.)

To construe this statute, enacted in 1971, we must take into account the law of this State, as declared by this Court, prior to its enactment. In Shearin v. Lloyd, supra, and in Lewis v. Shaver, supra, this Court affirmed judgments of involuntary nonsuit in actions for medical malpractice for the reason that the plaintiff had not brought the action within the period of the applicable statute of limitations. In each case, the plaintiff contended that the action was not barred by the statute because it was brought within three years after the plaintiff discovered the injury. In Shearin v. Lloyd, supra, the action was brought for damages caused by the negligence of a surgeon who was alleged to have left a gauze sponge within the plaintiff’s body when he closed the surgical incision. This was not discovered until a second operation was performed, substantially later. The action was brought within three years from the discovery of the foreign object in the patient’s body but more than three years after the first operation. In Lewis v. Shaver, supra, the surgeon was sued for the alleged unauthorized tying of the plaintiff’s Fallopian tubes in the course of a surgical procedure, the plaintiff not knowing this was contemplated and, so, not having consented thereto. This was not discovered by the plaintiff until a substantial time thereafter. She brought her action within three years after the discovery of the alleged trespass but more than three years after it occurred. In each case, this Court held the injury occurred and the cause of action was complete at the time of the first operation and the statute of limitations began immediately to run although the plaintiff did not then know of the injury.

Similarly, in Jewell v. Price, 264 N.C. 459, 142 S.E. 2d 1 (1965), this Court affirmed a judgment of involuntary nonsuit on the ground that the plaintiffs’ action for damage to their home from a defective oil-burning furnace was barred by the statute of limitations. The plaintiffs alleged that, by reason of defects in the furnace sold to them and installed by the defendant, their home and furnishings were damaged by smoke and soot. This Court held the cause of action was for breach of contract and accrued when the defective furnace was installed and the statute of limitations began then to run. We said: “The accrual of the cause of action must therefore be reckoned from the time the first injury, however slight, was sustained. * * * It is likewise unimportant that the harmful consequences of the breach of duty or of contract were not discovered or discoverable at the time the cause of action accrued.” To the same effect was the decision of this Court in Motor Lines v. General Motors Corp., 258 N.C. 323, 128 S.E. 2d 413 (1962), in which this Court held the right of action for breach of warranty in the sale of a truck accrued immediately upon the sale and delivery of the truck, not upon its subsequent destruction by fire due to a defect in its manufacture, and, therefore, the statute of limitations applicable to such action began to run at the time of the sale and delivery, even though the defect was not then discovered or readily discoverable.

The purpose of G.S. 1-15 (b) was to give relief to injured persons from the harsh results flowing from this previously established rule of law. By the enactment of this statute in 1971, the Legislature provided that a cause of action, having as an essential element bodily injury or a defect in property, “which originated under circumstances making the injury, defect or damage not readily apparent to the claimant at the time of its origin,” is deemed to have accrued at the time of the injury, was discovered or ought reasonably to have been discovered by the claimant. Thus, the purpose of this statute was to enlarge, not to restrict the time within which an action for damages could be brought.

To prevent the statute from subjecting tort feasors to suit for alleged acts or defaults so far in the past that evidence as to the event would be difficult to secure and intervening causes would be likely, though difficult to prove, the Legislature added this proviso: “ [p] rovided that in such cases the period [i.e., the period within which the action may be brought] shall not exceed ten years from the last act of the defendant giving rise to the claim for relief.” (Emphasis added.) Expressly, the proviso is limited to “such cases”; that is, the proviso applies only to cases in which the bodily injury, or defect in property, for which damages are sought was not readily apparent to the claimant at the time of its origin. In such case, the action must be brought within ten years from the wrongful act or default even though the plaintiff did not discover the injury until later.

This statute has no application whatever to the present case for two reasons. First, it expressly states that it does not apply to an action for wrongful death. Second, had the plaintiff’s intestate survived, his cause of action would not come within the terms of this statute because his injury was apparent as soon as it occurred. The plaintiff’s intestate would have been suing for personal injury caused by the negligence of one with whom he had no contractual relation, not for a defect in a product constituting a breach of warranty made to him by the manufacturer-seller. Thus, his cause of action would have accrued when he was injured and the three-year statute of limitations would have begun to run at that time, not at the time of the defendant’s negligent act or omission.

This is not inconsistent with Shearin v. Lloyd, supra, and the other cases above cited which gave rise to the enactment of G.S. 1-15 (b). In each of those cases, the cause of action accrued, and the statute began to run, when the injury occurred, not before that date. What this Court there held was that, the injury having occurred, the statute began then to run, even though the plaintiff did not know he or she had been injured. In the present case, there was no injury to the plaintiff’s intestate until the boom fell on 14 June 1972, and so, had he survived, his right of action then accrued and would not have been barred by the three-year statute at the time the plaintiff administratrix instituted the present action for wrongful death.

The present case is distinguishable from Brown v. Casualty Co., 285 N.C. 313, 204 S.E. 2d 829 (1974). In that case, the plaintiff sued under the uninsured motorist insurance endorsement affixed to an automobile liability insurance policy to recover damages for the death of the plaintiff’s intestate in an automobile collision caused by the negligence of a hit and run driver. The action was brought more than two years after the death. Therefore, when the suit on the contract of insurance was instituted, an action against the unknown hit and run motorist for wrongful death would have been barred by G.S. 1-53(4). The plaintiff contended that the action against the insurance company was for breach of contract and, therefore, the three-year statute applied and the action was not barred. The policy provided that the company would “pay all sums which the insured or his legal representative shall he legally entitled to recover as damages from the owner or operator of an uninsured automobile because of: (a) bodily injury, sickness or disease, including death resulting therefrom sustained by the insured * * (Emphasis added.) Thus, the contract imposed a condition precedent to recovery from the insurance carrier, which condition was that the plaintiff be “legally entitled to recover” from the wrongdoer. Speaking through the present Chief Justice, this Court held that since the two-year statute of limitations had barred the insured’s claim against the tort feasor, he was not “legally entitled to recover” damages from the tort feasor and so could not recover against the insurer. This was a matter of construing the insurance contract.

It is not necessary, however, in the present case, for us to determine whether, if, at the time the action for wrongful death was instituted, the statute of limitations had fully run so that an action by the plaintiff’s intestate would have been barred, the plaintiff administratrix would, in consequence, be barred even though the statute of limitations specifically relating to actions for wrongful death had not run its course. In the present case, for the reasons above stated, the plaintiff’s intestate, had he lived, would not have been barred by G.S. 1-52(5), the three-year statute, nor would he have been barred by the proviso in G.S. 1-15 (b).

We are not unmindful of the fact that the alleged wrongful act or neglect of the defendant’s predecessor occurred, if it occurred at all, 19 years prior to the injury sustained by the plaintiff’s intestate. It is for the Legislature, not for this Court, to impose, as a condition precedent to liability for personal injury, that the injury must occur within a specified time after the wrongdoing which is alleged to have been the proximate cause. Neither G.S. 1-52(5), the three-year statute of limitations, nor G.S. 1-15 (b), creates such a condition precedent to liability in a case, such as this, where no injury, to the pontiff's intestate, known or unknown, occurred more than three years prior to the institution of the action.

As this Court said, speaking through Justice Bobbitt, later Chief Justice, in Shearin v. Lloyd, supra, at page 371:

“The purpose of a statute of limitations is to afford security against stale demands, not to deprive anyone of his just rights by lapse of time. Butler v. Bell, 181 N.C. 85, 106 S.E. 217. In some instances, it may operate to bar the maintenance of meritorious causes of action. When confronted with such a cause, the urge is strong to write into the statute exceptions that do not appear therein. In such case, we must bear in mind Lord Campbell’s caution: ‘Hard cases must not make bad laws.’ ”

Likewise, concern for manufacturers charged with negligence in the distant past, when memories have grown dim and records hard to locate in the files, does not authorize this Court to enlarge the protections given them by the Legislature and, thus, cut off the right of one injured by a-negligently made product to sue for redress of his injury before the injury occurs.

In Williams v. General Motors Corp., 393 F. Supp. 387 (MDNC 1975), United States District Judge Ward held, in a case quite similar to. the one now before us, that the action for wrongful death did not accrue until the death occurred and G.S. 1-15 (b) does not require such action to be brought within ten years from the last act of the defendant giving rise to the claim for relief. The Court said, “The statute of limitations cannot begin to run against an aggrieved party who under no circumstances could have maintained an action at the time the wrongful act was committed until that aggrieved party becomes entitled to maintain an action.” Likewise, in Stell v. Firestone Tire & Rubber Co., 306 F. Supp. 17 (WDNC 1969), the Court held that a cause of action for injury sustained in an accident allegedly caused by the failure of a defectively manufactured tire did not accrue, and the statute of limitations did not begin to run thereon, until the accident occurred and the injury was thereby sustained.

In Causey v. R. R., supra, the plaintiff’s intestate was injured in' 1903 and his death, conceded to have been caused by the injury, did not occur until 1.912. Obviously, the plaintiff’s intestate’s right of action for damages for his injuries was barred by the statute of limitations when he died. Suit for wrongful death was brought by his administrator and this Court held the cause of action for wrongful death was not barred by the statute of. limitations, saying:

“If there is no privity between the administrator and the intestate as to this cause of action, and the former succeeds to no rights of the other, it is illogical, as it appears to us, to hold that the failure of the intestate to sue for personal injury will bar the right of the administrator to recover damages for death, when the first right of action could not pass to the administrator and the second did not exist until death.”

It is not necessary for us in the present action to determine whether Causey v. R. R., supra, was correctly decided or whether it is consistent with our decision in Brown v. Casualty Co., supra. In the present case, contrary to the situation in each of those cases, the plaintiff’s intestate, had he lived, would not, at the time the plaintiff instituted this action, have been barred from instituting an action for damages for his bodily injuries.

Consequently, the Superior Court was in error in granting the motion of Clark Equipment Company for summary judgment dismissing the action as to it and the Court of Appeals correctly vacated that judgment.

Affirmed.