Price v. JC PENNEY COMPANY, INC.

216 S.E.2d 154 (1975) 26 N.C. App. 249

Hepsie H. PRICE
v.
J. C. PENNEY COMPANY, INC.

No. 758SC54.

Court of Appeals of North Carolina.

June 18, 1975. Certiorari Denied August 25, 1975.

Dees, Dees, Smith, Powell & Jarrett by Tommy W. Jarrett, Goldsboro, for plaintiff appellant.

Harris, Poe, Cheshire & Leager by W. C. Harris, Jr., Raleigh, for defendant appellee.

Certiorari Denied by Supreme Court August 25, 1975.

PARKER, Judge.

To escape the bar of the statute of limitations, an action for libel or slander must be commenced within one year from the time the action accrues, G.S. § 1-54(3), and the action accrues at the date of the publication of the defamatory words, regardless of the fact that plaintiff may discover the identity of the author only at a later date. Gordon v. Fredle, 206 N.C. 734, 175 S.E. 126 (1934).

Plaintiff's original complaint filed 15 August 1973 does not allege any slanderous statement made within one year before it was filed. Her proposed amended complaint filed 8 July 1974 does not allege any slanderous statement made within one year before it was filed. Therefore, any claim for relief which plaintiff has alleged or attempted to allege based upon libel or slander is barred by the statute of limitations unless the claim which plaintiff seeks to assert as her second claim for relief in her proposed amended complaint can properly be held to relate back to the date of the filing of her original complaint.

G.S. § 1A-1, Rule 15(c) provides:

"Relation Back of Amendments. A claim asserted in an amended pleading is deemed to have been interposed at the time the claim in the original pleading was interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading."

Here, the original complaint does not give notice of any "transactions, occurrences, or series of transactions or occurrences" taking place after 8 August 1972. The allegation in the original complaint that "defendant later ratified all actions of the store manager," clearly refers to the actions of the store manager on and prior to 8 August 1972, since these were the only actions on his part which were in any way mentioned in the original complaint. Certainly, the broad statement that "defendant later ratified" the store manager's actions in discharging plaintiff on 8 August 1972 does not give notice of any transaction or occurrence involving a subsequent slander or libel of plaintiff.

Although Rule 15 of the North Carolina Rules of Civil Procedure is not identical with the Federal Rule 15, the two are sufficiently similar that authorities discussing the Federal Rule are here pertinent. Speaking of the Federal Rule, the authors of 6 Wright & Miller, Federal Practice and Procedure, had this comment in § 1497, pp. 489-490: "When plaintiff attempts to allege an entirely different transaction by amendment, as, for example, the separate publication of a libelous statement . . the new claim will be subject to the defense of statute of limitations." The same authority, at § 1474, p. 384, states: "[W]henever a party seeks to add an entirely new claim for relief under Rule 15(a), it will be subject to the applicable statute of limitations and may not be allowed if it is time barred."

In the second claim for relief set forth in plaintiff's proposed amended complaint, she has set forth an entirely new claim as to which the allegations in her original complaint give no notice. The new claim asserted in the amended complaint was barred at the time it was filed. The court correctly denied her leave to file the amendment, and the order appealed from is

Affirmed.

BROCK, C. J., and ARNOLD, J., concur.