Little v. Rose , 285 N.C. 724 ( 1974 )

208 S.E.2d 666 (1974) 285 N.C. 724

Beldon N. LITTLE
v.
James D. ROSE and Richard (Dick) O'Neal.

No. 34.

Supreme Court of North Carolina.

October 10, 1974.

Wilkinson, Vosburgh & Thompson, by James R. Vosburgh, Washington, for appellant.

LeRoy Scott, Washington, for appellee.

BRANCH, Justice.

Defendant contends that the Court of Appeals erred by holding that the three-year statute of limitations did not bar plaintiff's action.

In this connection, prior to trial defendant moved for judgment on the pleadings on the ground that the action was barred by the three-year statute of limitations.

The Court of Appeals, relying on rules set forth in Wilson v. Development Co., 276 N.C. 198, 171 S.E.2d 873, correctly held that plaintiff had "pleaded facts sufficient to establish that the commencement of this action took place within the three year period as required by G.S. § 1-52(1)" and that the trial judge properly denied defendant's motion for judgment on the pleadings.

When defendant O'Neal pleaded the three-year statute of limitations, he thereby placed upon plaintiff the burden of showing that the action was instituted within the prescribed period. Jewell v. Price, 264 N.C. 459, 142 S.E.2d 1; Willetts v. Willetts, 254 N.C. 136, 118 S.E.2d 548. Had plaintiff failed to introduce evidence to carry such burden, the trial judge could have allowed a defense motion for a directed verdict. Fulp v. Fulp, 264 N.C. 20, 140 S.E.2d 708; Jennings v. Morehead City, 226 N.C. 606, 39 S.E.2d 610. Whether a cause of action is barred by a statute of limitation is a mixed question of law and fact, and where the facts are admitted or established, the trial court may sustain the plea to dismiss as a matter of law. Teele v. Kerr, 261 N.C. 148, 134 S.E.2d 126; Roberts v. Bottling Co., 257 N.C. 656, 127 S.E.2d 236. Where, however, the evidence is sufficient to support an inference that the cause of action is not barred, the issue is for the jury. Distributors v. Mitchell, 255 N.C. 489, 122 S.E.2d 61; Brooks v. Construction Co., 253 N.C. 214, 116 S.E.2d 454.

This Court will not ordinarily consider questions not properly presented by objections duly made, exceptions entered and assignments of error not properly set forth. Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400; State v. Kirby, 276 N.C. 123, 171 S.E.2d 416; Shuford v. Phillips, 235 N.C. 387, 70 S.E.2d 193. Examination of this record discloses that defendant did not tender an issue as to the statute of limitations, did not move for directed verdict or judgment notwithstanding the verdict on the grounds that the pleaded statute barred the cause of action, did not request instructions on the statute of limitations or except to the Judge's failure to instruct thereon. In short, by his failure to interpose objections, enter exceptions and properly assign error to the actions of the trial judge, defendant failed to present to the Court of Appeals or to this Court the question of whether the plaintiff had failed to introduce evidence sufficient to carry the burden of showing that the action was commenced within the prescribed period. Further, we find no error of law upon the face of the record. Thus, defendant's contention as to the plea in bar is of no avail.

Defendant next assigns as error the sufficiency of the charge of the trial judge on the question of mitigation of damages.

This Court stated the rule on this question as applied to contract cases in Tillinghast v. Cotton Mills, 143 N.C. 268, 55 S.E. 621:

"It is an established principle that when there has been a breach of contract definite and entire, the injured party must do what fair and reasonable business prudence requires to save himself and reduce the damage; or the damage which arises from his own neglect will be considered too remote for recovery."

This principle has been reaffirmed by numerous decisions of this Court. See, e.g., Construction Company v. Crain & Denbo, Inc., 256 N.C. 110, 123 S.E.2d 590; Tillis v. Cotton Mills & Cotton Mills v. Tillis, 251 N.C. 359, 111 S.E.2d 606; Chesson v. Container Co., 215 N.C. 112, 1 S.E.2d 357; Harrell v. Brinkley, 184 N.C. 624, 113 S.E. 770; Johnson v. Railroad, 184 N.C. 101, 113 S.E. 606; Cotton Oil Co. v. Telegraph Co., 171 N.C. 705, 89 S.E. 21. See generally Annotation, 81 A.L.R. 282; 25 C.J.S. Damages §§ 33-34.

When, however, plaintiff has relied upon representations of the defendants, as here alleged, the essentially equitable rule of mitigation will not be applied to achieve an unjust result. The rule under such circumstances has been succinctly stated, as follows:

". . . [T]he repeated assurances of the defendant after an injury has begun that he will remedy the condition is sufficient justification for the plaintiff's failure to take steps to minimize loss, so long, at least, as there is ground for expecting that he will perform."

22 Am.Jur.2d Damages § 32. This modification of the general rule that plaintiff must mitigate his damages has achieved judicial acceptance in numerous cases. See, e. g., Krauss v. Greenbarg, 137 F.2d 569 (3rd Cir.), cert. den., 320 U.S. 791, 64 S.Ct. 207, 88 L.Ed. 477, reh. den., 320 U.S. 815, 64 S.Ct. 368, 88 L.Ed. 492; American Surety Co. v. Franciscus, 127 F.2d 810 (8th Cir.); Norfolk and W.R.R. v. Amicon Fruit Co., 269 F. 559 (4th Cir.); Kentucky Distilleries & Warehouse Co. v. Lillard, 160 F. 34 (6th Cir.); Midwest Marine Inc. v. Sturgeon Bay Shipbuilding and Dry Dock Co., 247 F.Supp. 283 (E.D.Wis.); Ford v. Illinois Refrigerating Construction Co., 40 Ill.App. 222; Graves v. Glass, 86 Iowa 261, 53 N.W. 231; Steele v. J. I. Case Co., 197 Kan. 554, 419 P.2d 902; Winfrey v. Automobile Co., 113 Kan. 343, 214 P. 781; Illinois Central R.R. v. Doss, 137 Ky. 659, 126 S.W. 349; Garbis v. Apatoff, 192 Md. 12, 63 A.2d 307; Cronan v. Stutsman, 168 Mo.App. 46, 151 S.W. 166; Reed v. Universal C.I.T. Credit Corp., 434 Pa. 212, 253 A.2d 101; Act-O-Lane Gas Service Co. v. Hall, 35 Tenn.App. 500, 248 S.W.2d 398; Vermont Salvage Corp. v. Northern Oil Co., 118 Vt. 337, 109 A.2d 267; Sears, Roebuck & Co. v. Grant, 49 Wash.2d 123, 298 P.2d 497; Lopeman v. Gee, 40 Wash.2d 586, 245 P.2d 183; Florence Fish Co. v. Everett Packing Co., 111 Wash. 1, 188 P. 792.

In instant case plaintiff testified that he was assured by defendants on several occasions that they would repair the damaged crane. Defendant O'Neal denied that he had given plaintiff any assurance that he would repair the crane. Thus a question of fact was presented for decision by the jury.

Judge Fountain, in relevant part, instructed the jury:

"Now, the question of loss of use is subject to certain qualifications and explanations. If the defendants agreed that the equipment had been damaged and that they would repair it and put it back in the same condition it had been before it was damaged, then the plaintiff had a right to rely upon such representations and expect the defendants to do so, until in the exercise of reasonable care for his own property, it became apparent to him that they would not do so, and if it did become apparent, that is if it was obvious to him from inaction on the part of the defendants that they would not repair the equipment as they agreed to do, if they had so agreed, then it became his duty to take such action as he could to reduce or minimize any loss that he might otherwise have had, and if the plaintiff knew or should have known that the defendants were not going to repair the equipment and if he, in the exercise of reasonable care for his own property, and own contracts and own business could have repaired it or had it repaired so that he could have used it on the job in October of 1967 at the Georgia-Pacific yard or in July of 1968 on the marina work, then it was his duty to do so and thereby eliminate the necessity of renting equipment and, instead, charge against the defendants the repair costs, if repairing the equipment would have minimized or reduced his loss.

"In other words, members of the jury, a plaintiff or a party who is injured by a breach of contract has the duty to minimize his loss where he can do so, rather than accept as much loss as he can and seek to recover for it.

"I am not suggesting to you that he could have or could not have, or should have or should not have repaired it. I am simply saying to you that is a matter for you to determine in passing upon the question of damages."

These instructions fully and accurately stated the applicable law as to mitigation of damages and correctly applied the law to the facts of this case. This assignment of error is overruled.

We do not deem it necessary to discuss the other questions presented by this appeal. Suffice it to say that our careful examination of this record reveals no reversible error.

The decision of the Court of Appeals is

Affirmed.

BOBBITT, C. J., not sitting.