Stamey v. Rutherfordton Electric Membership Corp. , 249 N.C. 90 ( 1958 )

105 S.E.2d 282 (1958) 249 N.C. 90

Mrs. James R. STAMEY, Jr., Administra trix of the Estate of James R. Stamey, Jr., Deceased, Plaintiff,
v.
RUTHERFORDTON ELECTRIC MEMBERSHIP CORPORATION, Defendant, and Brawley Construction Company, Additional Defendant.

No. 249.

Supreme Court of North Carolina.

October 29, 1958.

Wm. H. Booe and Carswell & Justice, Charlotte, for plaintiff-appellant.

Carpenter & Webb, Charlotte, for defendant Rutherfordton Electric Membership Corp., appellee.

BOBBITT, Justice.

Plaintiff alleged, separately, two causes of action. Her first cause of action is for personal injuries suffered by her intestate from his injury on February 22, 1956, until his death on February 26, 1956; and her second cause of action is for her intestate's wrongful death. Hinson v. Dawson, 241 N.C. 714, 86 S.E.2d 585, 50 A.L.R. 2d 333; Hoke v. Atlantic Greyhound Corp., 226 N.C. 332, 38 S.E.2d 105.

We are of opinion, and so hold, that the amended complaint, as amended in March, 1958, states facts sufficient to constitute a cause of action. We need not determine whether the facts alleged in paragraph 11, as amended in March, 1958, standing alone, are sufficient to establish legal responsibility of defendant for the contact made with the "live" power line.

While the allegations relating to defendant's negligence are identical in both causes of action, both before and after the amendments of March, 1958, the legal significance of these amendments in relation to the first cause of action is different from their legal significance in relation to the second cause of action. Hence, each cause of action requires separate consideration.

1. First cause of action. The three-year statute of limitations applies to this cause of action. G.S. § 1-52, subd. 5. It appears affirmatively that the amendments of March, 1958, were filed within three years from the date of the intestate's injury. Hence, the question presented is whether these amendments were permissible under G.S. § 1-163.

Unquestionably, the facts alleged in the amendments of March, 1958, are material to the case. They relate directly to plaintiff's right to recover from defendant on account of the intestate's injury on February 22, 1956, on the occasion referred to in plaintiff's prior pleadings. While, for reasons stated below, we are of opinion that plaintiff, in the amendments of March, 1958, for the first time stated facts sufficient to constitute a cause of action, the cause of action then stated embraces relevant facts connected with the transactions forming the subject of her prior pleadings. Hence, absent the bar of an applicable statute of limitations, such new cause of action may be introduced by way of amendment of plaintiff's prior pleadings. Perkins v. Langdon, 233 N.C. 240, 63 S.E.2d 565; Capps v. Atlantic Coast Line R. Co., 183 N.C. 181, 111 S.E. 533.

The amendment approved in Perkins v. Langdon, supra, filed within three years of the accrual of the cause of action, permitted the plaintiff to allege (a) that the defendant covenanted not to sell the warehouse properties during the term of their threeyear lease, and (b) that he breached the covenant by selling after the end of the first year to a bona fide purchaser. It is noted that a demurrer ore tenus in this Court to the original complaint, which was silent as to the matters alleged in said approved amendment, had been sustained in Perkins v. Langdon, 231 N.C. 386, 57 S.E.2d 407.

On authority of Perkins v. Langdon, supra, 233 N.C. 240, 63 S.E.2d 565, and cases therein cited, we hold that the court erred in striking paragraph 12(j) of the first cause of action and in sustaining the demurrer thereto.

2. Second cause of action. The twoyear statute of limitations applies to this cause of action. G.S. (Vol. 1A) § 1-53, subd. 4; G.S. (Vol. 2A) § 28-173, as amended by Ch. 246, Session Laws of 1951.

"In the absence of statute otherwise providing, the general rule is that an amendment introducing a new cause of action does not relate back to the commencement of the action, with respect to limitations, but is the equivalent of a new suit, so that the statute of limitations continues to run until the time of the filing of the amendment." 54 C.J.S. Limitations of Actions § 281; 34 Am.Jur., Limitation of Actions Sec. 260. This is the established rule in North Carolina. Capps v. Atlantic Coast Line R. Co., supra, and cases cited therein. While a statute of limitations was not involved in Perkins v. Langdon, supra, 233 N.C. 240, 63 S.E.2d 565, it is noted that Johnson, J., quoting from Capps v. Atlantic Coast Line R. Co., supra, recognized this limitation on the discretionary power of the court to allow amendments under G.S. § 1-163.

It appears that the amendments of March, 1958, were filed more than two years from the date of the intestate's death. Nothing else appearing, this cause of action is vulnerable to a proper plea of the two-year statute of limitations if plaintiff, in the amendments of March, 1958, for the first time stated facts sufficient to constitute a cause of action.

While, as indicated below, a statute of limitations may not be pleaded by demurrer, it seems appropriate, for the guidance of the court and of the parties in further proceedings, that we consider and pass upon whether the cause of action alleged in the amendments of March, 1958, is a new cause of action. In this connection, it is noted that this question was debated in the briefs and on oral argument on this appeal.

A cause of action consists of the facts alleged in the complaint. G.S. § 1-122; Lassiter v. Norfolk & C. R. Co., 136 N.C. 89, 48 S.E. 642. The decision on former appeal, sustaining the demurrer to the amended complaint "for the reason that the amended complaint considered in its entirety fails to allege a case of actionable negligence proximately causing the injury to, and death of, plaintiff's intestate," [247 N.C. 640, 101 S.E.2d 820] became the law of the case. George v. Atlanta & Charlotte Airline R. Co., 210 N.C. 58, 185 S.E. 431; Webb v. Eggleston, 228 N.C. 574, 46 S.E.2d 700; Glenn v. City of Raleigh, 248 N.C. 378, 103 S.E.2d 482; Hayes v. City of Wilmington, 243 N. C. 525, 91 S.E.2d 673; Robinson v. McAlhaney, 216 N.C. 674, 6 S.E.2d 517.

In George v. Atlanta & Charlotte Airline R. Co., supra, and in Webb v. Eggleston, supra, demurrers had been sustained for the reason that the original complaints did not state facts sufficient to constitute causes of action. It was held that the amendments, if otherwise good and available, "would relegate the plaintiff to the position of having thereby for the first time stated a cause of action against the demurring defendants." Devin, J. (later C. J.), in George v. Atlanta & Charlotte Airline R. Co., supra, quoted by Barnhill, J. (later C. J.), in Webb v. Eggleston, supra.

In George v. Atlanta & Charlotte Airline R. Co., supra, referring to the original complaint, Devin, J. (later C. J.), said: "It was not a defective statement of a good cause of action; it did not state facts sufficient to constitute a cause of action."

"As a general rule, and in the absence of statute otherwise providing, where the original complaint or declaration states no cause of action whatever, an amendment made after the bar of the statute will not relate back, but will be regarded as the beginning of the action, in reckoning the statutory period of limitations." 54 C.J.S. Limitations of Actions § 279b; Marks v. St. Francis Hospital & School of Nursing, 179 Kan. 268, 294 P.2d 258; Waddell v. Woods, 160 Kan. 481, 163 P.2d 348; Bahr v. National Safe Deposit Co., 234 Ill. 101, 84 N.E. 717; Fowler v. City of Seminole, 202 Okl. 635, 217 P.2d 513; Murray v. McGehee, 121 Okl. 248, 249 P. 700.

In Ely v. Early, 94 N.C. 1, cited by appellant, the original complaint stated facts sufficient to constitute a cause of action; and this Court held that the amendment "constituted a part of the plaintiff's cause of action at first alleged."

George v. Atlanta & Charlotte Airline R. Co., supra, and Webb v. Eggleston, supra, are discussed and distinguished in Davis v. Rhodes, 231 N.C. 71, 56 S.E.2d 43, where, upon the facts then considered, it was held (1) that the original complaint was not demurrable for failure to allege facts sufficient to constitute a cause of action, (2) that the amendment merely particularized prior general allegations of negligence, and (3) that the court was in error in sustaining the demurrer and in dismissing the action.

"The question whether an amendment of a pleading states a new cause of action is not affected by whether the statute involved is an ordinary statute of limitations or a limitation which goes to the existence of the right itself." 54 C.J.S. Limitations of Actions § 279c, p. 324. In each instance, the ultimate determinative question is whether the amendment states a new cause of action.

But there is this distinction: In George v. Atlanta & Charlotte Airline R. Co., supra, and in Webb v. Eggleston, supra, decided when C.S. § 160, later G.S. § 28-173, prior to the amendments of 1951, was in effect, the one-year limitation was an integral part of plaintiff's right of action, a condition precedent thereto. Accordingly, these actions were properly dismissed upon demurrer when it appeared affirmatively from plaintiff's pleadings that a cause of action was first stated more than one year after the death of the intestate. However, since the enactment of Ch. 246, Session Laws of 1951, the time within which a wrongful death action may be commenced is not an integral part of the right of action or a condition precedent thereto but is an ordinary (two-year) statute of limitations.

"The objection that the action was not commenced within the time limited can only be taken by answer." (Our italics.) G.S. § 1-15. It is not one of the grounds for demurrer specified in G.S. § 1-127. "The statutes of limitations can never be taken advantage of by demurrer." Lewis v. Shaver, 236 N.C. 510, 73 S.E.2d 320, 321, and cases cited; Moody v. Wike, 170 N.C. 541, 87 S.E. 350, and cases cited. It is equally true that statutes of limitations cannot be taken advantage of by motion to strike.

Although the reasons therefor are different in respect of each separately stated cause of action, as indicated above, we reach the conclusion that, as to both causes of action, defendant's demurrer should have been overruled and its motion to strike denied. Hence, the order from which plaintiff has appealed is vacated and the cause remanded, with direction that an order be entered in conformity with the law as stated herein.

Order vacated and cause remanded.

PARKER, J., not sitting.