*1 IN THE SUPREME RAFTERY, ANNE B. of ALLEN G. the Estate Administratrix of RAFTERY, Deceased v. WM. C. VICK CONSTRUCTION CO. Corporation EQUIPMENT COMPANY, CLARK a
No. 66 (Filed 1976) 7 December — wrongful 4—§ 1. Death death statute of limitations year period prescribed by 1-53(4) conjunction The two G.S. wrongful with for the is G.S. 1-46 commencement of a death action limitations, precedent a statute of not a condition the cause of action. — wrongful 2. 4— § death of Death statute limitations allegedly by negligent wrongful An action for death caused design 1-53(4) or manufacture of a crane was not barred G.S. where it was within two from the intestate’s death. — precedent 3. Death 3— § death condition precedent G.S. 28A-18-2 makes a condition to a death plain- the manufacturer of a crane the death by wrongful act, neglect tiff’s intestate was caused the manufacturer of had or default of would, injured person “such crane if the damages him have entitled to an action for therefor.” 4; injury 4— § 4. Death not or dis- § Limitation Actions discovered — purpose 1-15(b) of G.S. coverable— statute of limitations give injured persons purpose The relief of G.S. 1-15 was to flowing by case law from harsh results that from the rule established begins run from the when the statute limitations time plaintiff initially injured though injury even is not discovered by рlaintiff such time. or discoverable — 4; bodily injury 4—§ 5. Death Limitation of Actions actions for § — — proviso apparent statute of limitations statute ten-year proviso (b) applies limitation in property or defect in to cases which the sought readily apparent are was not the claimant which at the origin. of its — 4; 4— defect 6. Limitation of Actions death § § Death — — — apparent of limitations accrual of action crane At the time instituted allegedly crane manufactured caused in a prior nineteen have been barred to the intestate’s the intestate would ten-year proviso limitation in the of G.S. TERM 1976 FALL Raftery Co. v. Construction *2 instituting received in the an from because occurred; injury apparent nor as soon as it his was incident three-year by plaintiff’s limita- have been barred would intestate 1-52(5) action would have accrued his cause of of since tion begun when he was to run would have and the limitation negligent omission, injured, act or of defendant’s not at three-year period. plaintiff’s There- was within that action instituted ground on the fore, barred death action was bodily injuries by would her have been an intestate that barred action of those two limitаtions of either statutes. the time concurring. Branch and Exum Justices joins concurring opinion Judge Branch. of Justice Huskins Sharp dissenting. Moore Chief and Justice Justice Copeland dissenting joins opinions. in the Justice decision, Appeals to review its On certiorari of Court vacating (1976), App. 495, 2d 706 reported summary judgment, dismissing against the defend- the action J., Brewer, Equipment Company, at the entered ant Clark August 1975 Session of Johnston. voluntary with- took dismissal of prejudice, C. Construction out as to the defendant William Vick against Thus, only Equipment Company. Clark Com- pany appeal. is involved in this As Clark This action was instituted June 1974. alleges complaint On
Equipment Company, in substance: employee Roger intestate, 1972, plaintiff’s of K. 14 June Barbour, Welding trading Service, while in as Industrial upon por- employment, struck the head course by Michigan Equipment tion of a crane manufactured sold Equipment Company Company, the successor which Clark Company Equipment has and the which Clark liabilities plaintiff’s in- death assumed. The resulted proximate of the on 14 June 1972. The cause testate and Michigan negligence Equipment Company death was Indemnity design Home and manufacture crane. compensation сarrier Company, insurance the workmen’s IN THE SUPREME COURT Roger Barbour, employer, paid K. under benefits due Compensation the North Carolina Workmen’s Act and provisions was instituted for its benefit under the that Act. Equipment Company negli- denying Clark filed answer
gence by predecessor and, defenses, its as one of several further pleading three-year limitations, alleging statute of crane was predecessor manufactured and sold more than years prior three to 14 June 1972. By reason of pleaded, the statute of limitations so Clark
Equipment Company summary judgment dismissing moved for the support motion, action as to it. In of its it affidavits filed to the by sold, new, effect that the crane was manufactured and predecessor
its on 23 prede- June 1953 and neither it nor its owned, possession cessor any has had upon of or done work the crane since that date. The crane has been in use since that by purchaser subsequent and owners. Judge genuine Brewer found there is no issue of and fact action, dismissed Equipment the Company, as Clark law, concluding a matter of plaintiff’s that the barred is by the statute of limitations. Appeals judgment Court of vacated the of dismissal and remandеd the proceedings. case for further Hedrick, Parham, Helms, by Kellam & Feerick Richard T. Feerick and John plaintiff. A. Gardner III for Maupin, Taylor & Ellis Maupin Armistead J. and Rich- ard M. Lewis for defendant.
LAKE, Justice. purpose For the appeal that, must be assumed although the question crane in had been use for 19 with- any malfunction, out known falling of the boom was due proximately to a negligence caused of the manu- design facturer or manufacture Thus, of the crane. we presently are not concerned with plaintiff, whether upon trial of produce can negligence evidence of such and question causation. gence whether, The sole assuming negli- is such proximate was a cause of the death FALL TERM
Raftery v. Co. Construction any recovery preclude intestate, of this State the statutes death. such provides:
G.S. 28A-18-2 recovery as- by wrongful another; act “Death by a (a) person caused of a sets.— wrongful act, When tooidd, another, neglect such as or default person entitled him to injured if therefor, damages person corporation that or personal repre- liable, their been so or would have collectors, an action for shall be liable to sentatives or brought representative or damages, to be notwithstanding decedent; and this collector of the default, although neglect death, act, * * * death, felony. causing .” in law amounts added.) (Emphasis
[1] G.S.
1-53(4),
conjunction
with
1-46, provides that
of a
on account of the death
an action for
neglect
act,
another must
or default of
caused
years.
limitations,
This is a
within two
be
not a
establishing
provision
precedent
to the cause
a condition
28-173,
prede
provision
was the
of G.S.
of action such as
Brown
28A-18-2, prior
in 1951.
its amendment
cessor G.S.
*4
;
(1974)
Casualty
Kinlaw
Co.,
313,
N.C.
It
precedent
will be observed that
this condition
not, by
terms,
maintenance of
express
this action does
its
in-
but, upon
face,
clude a time limitation
to the nature
relates
“wrongful act, neglect
or default”
which caused
legal capacity
death and to the
of the decedent
sue therefor
example,
employee
had he lived. For
within'the Workmen’s
the administrator of an
Compensation
Act cannot
em-
sue-the
ployer
employee
death of the
since
employee
employer
could not have sued the
Horney
Co.,
he lived.
v. Pool
2d 554
N.C.
*5
(1966). Likewise, except
provides,
as G.S. 1-539.21 now
unemancipated
bring
administrator of an
minor child cannot
an
wrongful
against
negligent parent.
death
the child’s
Capps
Smith,
120,
(1964) ;
263
v.
v.
N.C.
Raftery v. Construction. Co.
268,
(1899), quoted
approval by
46 W.Va.
Court said the death West similar state, “plainly statute of that relates to the character of regard question without to the of time of suit or death.” alleged “wrongful act, neglect The or default” of the de- predecessor (which, fеndant’s purposes appeal, for the of this we fact) must take to be established as a is in the manufacture which, by design sale of a crane reason of its and the manufacture, materials used in its was defective so that being boom fell facturer, contemplated by while it was used as the manu- plaintiff’s struck the on head and killed intestate him, apparently being Clearly, nothing death instantaneous. else appearing, plaintiff’s intestate, employee ultimate purchaser crane, and owner of the had he could have damages against maintained an action for such manufacturer- Douglas Mallison, 362, 370, seller. v. 265 N.C. 144 2d S.E. (1965) ; Wyatt Equipment Co., 138 355, v. 253 2d N.C. 117 S.E. (1960) ; Gwynn Motors, Inc., 123, 21 v. 252 113 2d N.C. 302 (1960); Co., 675, Lemon v. Lumber N.C. S.E. 2d 868 (1960) ; Tyson Manufacturing Co., 557, v. 107 S.E. (1959). Thus, 2d 170 precedent if the condition to the main plaintiff’s tenance of the action for his death is limited neg “wrongful act, nature of the manufacturer-seller’s legal lect or capacity plaintiff’s default” and to the of the in sue, testate to that condition has been satisfied and the action is maintainable. defendant, however, prece- that the contends condition
dent set forth 28A-18-2(a) in G.S. is not so limited. The defend- ant precedent contends that this condition extends аlso to the time within which the intestate could have instituted an action the defendant for had the plaintiff’s intestate lived. Courts of other states have so con- provisions strued similar states. Ellis v. Black Diamond Coal death statutes of those
Mining Co.,
576,
268 Ala.
(1959) ;
That have been head, would not on the he blow survived the intestate pas- due to for his an “entitled” years) the manufacture sage (approximately 19 between of (cid:127) intestate, plaintiff’s and the the crane and sale of may maintain this reason, not and, for that therefore, question of We, turn to death. for whether, on the blow survived plaintiff’s intestate had the against lawfully the defendant instituted head, he could alleged negli- by the injuries proximately caused action for his gence design before the crane manufacture of upon him. fell the boom 1-52, which, conjunction with G.S. turn first to G.S.
We 1-46, provides as follows: — pеriods pre- prescribed. “Periods G.S. 1-U6: actions, than for other of for the commencement
scribed in this recovery property, set forth real are as article.” — years an years. three 1-52: “Three Within
action— contract and not “(5) For criminal hereafter [*] rights conversation, eumerated. [*] [*] another, * * * or .” (Emphasis any arising other on
added.) (assumed
Obviously, negligence the defendant right purposes appeal) of action would confer no injury proxi- upon mately intestate until he suffered an thereby. then, Until his cause of caused nothing three-year complete and, appearing, else begin right run Wilson v. would not to sue. supra; Co., Development Co., supra; Insurance Co. Insurance 4; Strong, Actions, McIntosh, 2d, N. Index Limitation of C. § Procedure, 291; 51 Am. North Practice and 2d Ed. Carolina § 2d, Actions, 107; C.J.S., Limitation of Jur. Limitation of § Jurispru- Actions, 108, 109. The section in American cited §§ states, words, “In an action cannot be maintained dence other complete, and hence the statute until a of action is FALL TERM 1976 *7 run limitations cannot before that The above cited sec- time.” Corpus states, tion 108 in “No limita- Juris Secundum statute of person by tions runs things until do the he is allowed law to interposed.” which as to the statute is says, however, precedent the estab- condition by 28A-18-2(a) plain- lished has not been met because the tiff would not have bеen entitled to maintain an action for damages injuries, survived, for his had he for the that reason deprive right. G.S. 1-15 would him of that That statute reads:
“(b) Except by statute, provided where otherwise having wrongful death, cause of other than one for as an essential element or a damage property originated in or under making damage not circumstances the defect or readily apparent origin, claimant the at the time its of is deemed to have at the accrued time the was dis- by claimant, ought reasonably covered the to have been by him, occurs; discovered provided whichever event first period years that in such cases the shall not exceed ten last act the of the defendant claim rise to the (Emphasis added.) for relief.” statute, To construe this enacted in we must into take State,
account law of Court, prior the this as declared this Lloyd, supra, In enactment. Shearin v. v. and in Lewis Shaver, supra, judgments involuntary this Court affirmed of malpractice nonsuit in actions for medical for the reason plaintiff brought the the had not the action within the applicable case, statute plaintiff of limitations. In each the contended that the action not was barred the statute because brought years plaintiff it was within three after the discovered injury. Lloyd, brought supra, the In Shearin v. the action was negligence surgeon for alleged caused of a was who gauze sponge body to have left a within surgical when he closed the This incision. was not discovered operation performed, until a substantially second was later. years discovery The action was within three from the foreign object patient’s body of the in the but more than three years operation. supra, Shaver, after first Lewis surgeon alleged tying sued was unauthorized plaintiff’s Fallopian surgical procedure, tubes course of a IN THE SUPREME and, knowing so, not contemplated plaintiff not was plain- having was discovered consented thereto. This brought her action tiff until a substantial time thereafter. She alleged trespass discovery
within three after case, this three In each but more than after occurred. the cause Court held the occurred and complete operation first at the time of the although began immediately did to run limitations injury. know of the then Similarly, Price, 2d 1 Jewell v. involuntary judgment (1965), nonsuit this Court affirmed a ground damage their plaintiffs’ on *8 oil-burning by the home was barred from a defective furnace alleged that, by of plaintiffs reason statute of limitations. The by defend to them and installed the defects ant, furnace sold furnishings damaged by and and smoke their home were of con held of action was for breach soot. This Court the cause tract was installed and accrued when the defective furnace began “The the then run. We said: statute of limitations to from the cause must therefore be reckoned accrual of of action * ** slight, sustained. injury, the the first was time however consequences the unimportant of It is that the likewise harmful duty or of were discovered or discover breach of contract not To effect time the of action the same able at the cause accrued.” Motors in v. General was decision of Motor Lines the this Court Corp., (1962), this 2d in which 128 S.E. warranty in the of Court held the of action for breach delivery immediately upon the sale and sale of a truck accrued of the subsequent
truck, upon fire due its destruction therefore, manufacture, and, to a in its the statute defect began run time applicable at the to such action limitatiоns though then delivery, defect was not the even the sale readily discoverable. discovered or [4] purpose of was to give relief to injured flowing previously persons results from from the harsh this By the enactment of this statute rule law. established having Legislature provided that a cause of the property, or a essential element originated making injury, “which under circumstances de the readily damage apparent the fect not is claimant at the origin,” the to have at the time of deemed accrued ought reasonably dis- was discovered or have been FALL TERM 1976 Thus, purpose the statute covered claimant. of this was enlarge, not to restrict the time within which an action for damages brought. could be
[5] To prevent from subjecting tort feasors to suit alleged past for acts or defaults so far in the that evidence as intervening to the event would difficult be to secure and causes likely, though Legislature prove, would be difficult to added “ proviso: [p] period [i.e., rovided that in such cases the may brought] within which ex the action be shall not ceed ten from the last rise act of the (Emphasis added.) Expressly, pro to the claim for relief.” cаses”; is, applies proviso viso is limited to “such bodily injury, property, to cases in which or defect sought readily apparent are was not origin. case, must claimant at the time of its In such the action be within ten act or default though injury even until later. did not discover [6] This statute has no application whatever present First, expressly case for two reasons. states that it does apply Second, plain to an action for death. had the survived, tiff’s intestate would not come cause appar within the terms of this statute because his ent as soon as it occurred. The intestate would have suing negligence of one been caused relation, defect in with whom he had no contractual not for a constituting warranty product him a breach of made to *9 Thus, of action the manufacturer-seller. his cause would three-year injured and statute of accrued when he was the begun time, run that the limitations would have to at negligent time of the defendant’s act or omission. Lloyd, supra, v. and
This is not inconsistent with Shearin gave the the other cases above cited which rise to enactment (b). cases, accrued, 1-15 In each of those of action G.S. the cause began injury occurred, run, and the statute to when the not be- that, date. held the fore that having occurred, What this Court there was though began run, then even the statute plaintiff injured. the the did not know he or had she been present case, plaintiff’s there was no intestate so, survived, until fell on 14 June had he the boom been of action then accrued and would not have barred by three-year plaintiff time the administratrix the statute at the present the action for death. instituted THE IN SUPREME Raftery v. Co. Construction Casualty distinguishable from Brown present The case is case, (1974). the Co., In that 2d 829 endorse- plaintiff motorist insurance sued under the uninsured liability policy re- affixed an insurance ment automobile damages plaintiff’s intestate cover for the death of the negligence by and run the of a hit automobile collision caused the after driver. The action was more than two Therefore, insurance when the suit on the contract of death. against run instituted, hit and was an action the unknown by G.S. been motorist death would have barred against 1-53(4). plaintiff The contended that the action and, therefore, company insurance was for breach of contract three-yеar applied not barred. statute and the action was “pay policy provided company all sums would legally en- legal representative shall he which the insured or his damages operator of an titled to recover as from the owner or bodily injury, (a) sickness uninsured automobile of: because disease, including resulting death therefrom sustained * * added.) imposed (Emphasis Thus, the contract insured carrier, recovery precedent from the insurance condition “legally plaintiff to re- that the entitled condition was be wrongdoer. through present Speaking Chief cover” from the Justice, two-year limita- held that since the Court feasor, against he tort tions had barred the insured’s claim “legally the tort was not entitled to recover” was the insurer. This feasor so could recover construing a matter contract. insurance determine [6] It is not whether, necessary, if, at the time the however, present case, for us fully instituted, limitations had run so the statute of barred, plaintiff’s an action would have been intestate consequence, would, be barred administratrix relating though specifically statute of limitations even present In the death had not run its course. actions for intestate, case, stated, above for the reasons 1-52(5), three- not have been barred G.S. he would proviso in year statute, nor would he have been barred (b). *10 wrong- alleged that not of the fact are unmindful We occurred, it neglect predecessor if the defendant’s ful act or injury all, prior sustained to the occurred at Court, Legislature, not for this It is for the intestate. FALL TERM 1976 liability impose, precedent to as a condition injury, injury specified after must occur within a wrongdoing alleged proximate which is to have been the 1-52(5), three-year cause. Neither G.S. statute of limita- tions, (b), precedent nor G.S. 1-15 creates such a condition liability case, this, pon- in a such as where no intestate, unknown, tiff's known or more than three occurred years prior to the institution of the action. Bobbitt, said, speaking through As this Court later Justice Justice, Lloyd, supra, Chief page Shearin v. 371: purpose
“The of a statute limitations is to afford security against demands, anyone deprive stale not rights just by lapse Bell, his of time. Butler instances, may operate 106 S.E. In some 217. bar maintenance meritorious of action. When causes cause, urge strong confronted with such a into the to write exceptions appear In that do not therein. case, Campbell’s such we bear must in mind Lord caution: ” ‘Hard cases must make bad laws.’ Likewise, charged negligence concern for manufacturers with past, grown in the distant when dim memories have and records files, hard to locate in the does not authorize this to en- Court large given protections Legislature and, thus, them injured by a-negligently cut off product of one made injury injury sue for redress before the occurs. Corp., Supp. Williams v. General Motors 393 F.
(MDNC 1975), Judge held, United States District Ward quite case us, similar the one now before that the action to. wrongful death did not accrue until the death occurred and require G.S. 1-15 does not such action within to be ten from the last act of the defendant rise said, claim for relief. The “The Court statute of limitations can- begin aggrieved to run party who under no circumstances could have maintained an action at the time the aggrieved party act was committed until becomes entitled to Likewise, maintain an action.” in Stell v. Firestone Co., Supp. (WDNC 1969), Tire & Rubber 306 F. the Court held that a cause of action for sustained in an accident allegedly defeсtively caused failure aof manufactured accrue, begin tire did not statute of limitations did not thereon, to run until the accident occurred and the thereby sustained. *11 IN THE SUPREME
Raftery v. Co. Construction Causey R., supra, plaintiff’s in- R. intestate was In v. the jured death, his conceded to have been caused in' and Obviously, plaintiff’s the not occur until 1.912. the did injuries right damages was of action for for his intestate’s for limitations when he died. Suit barred wrongful the statute of brought by this his administrator and death was for was the of action death not bar- Court held cause limitations, saying: red the of. privity
“If is no the administrator there between action, former suc- intestate as to this cause of and the the rights illogical, appears other, to no it is ceeds us, for to hold that intestate sue to personal failure right will bar the the administrator damages death, the first of action recover for when pass did not to the administrator the second could exist until death.” necessary present determine
It is not for us correctly Causey R., supra, R. decided or v. was whether whether it is Casualty our in Brown v. decision consistent with case, contrary Co., supra. present in each the situation not, cases, intestate, would of thosе he instituted have been barred at the bodily instituting injuries. for an action for his granting Consequently, Superior was in error Court Equipment Company summary judg- the motion of Clark dismissing Appeals the action as to it and the ment Court judgment. correctly vacated
Affirmed. concurring.
Justice Branch dissenting Sharp opinion, In her Chief Justice condemns holding Causey Railroad, of the Court in N.C. effect that the statute of limitations does begin personal representative until death to run notwithstanding of personal decedent the fact that the injuries barred caused decedent’s death was agree. portion I died. I also in accord with that when he am that “the ex- in which he concluded Justice Moore’s dissent operation of G.S. death actions from clusion of two-year preserve the statute of intended FALL TERM 1976 However, . . . for rea- limitations actions.” stated, questioned I sons hereinafter do not believe that holding Causey or the of G.S. death exclusion *12 (b) appeal. 1-15 is before us on this
[6] I
am
agreement
with the
principal
reasoning
and the
majority
my
opinion because,
view,
result
reached in the
provisions
1-15(h)
application
G.S.
have no
whatever to
this case.
facts of
recognized
For more than 144
it has been
in this
jurisdiction
begin
that a statute of limitations does not
to run
plaintiff
until
after
cause of action has accrued and the
has
right
City
Burton,
a
206,
to maintain a suit.
Reidsville v.
269 N.C.
147;
Shoaf,
319,
152
2d
S.E.
Miller v.
110
14
N.C.
S.E.
Godley
800;
Taylor,
demanding party
v.
14
If
N.C. 179.
is
disability,
begins
under no
the statute
to run at
time the
plaintiff
injury,
slight,
suffers some
however
such as entitles
stopped
him to maintain an action. It then continues to run until
by appropriate judicial process.
subject
This rule is
to certain
grounded
exceptions
as
such
torts
on fraud or mistake. Matthieu
Co.,
212,
336;
v. Piedmont Natural
Gas
N.C.
152 S.E. 2d
Acceptance Corp.
Spencer,
1,
B-W
268 N.C.
The that rule statute of limitations action, i.e., run from the accrual of the the time when the initially injured, firmly so became embedded in our rigidly applied plain- case law that we the rule even when the knowledge constituting tiff was without the facts the cause Shaver, 320; 510, of action. Lewis v. 73 S.E. 2d Lloyd, 508; Shearin v. N.C. S.E. 2d Matthieu v. Co., supra; Refrigerators, Inc., Piedmont Natural Gas Sellers v. unyield- 283 ing 2d 817. The N.C. enforcement of this rigid produced inequitable rule often harsh and results. It, therefore, аpparent legislature seems G.S. enacted existing (b) flowing to relieve the harsh results from the law. case 1-15(b) provides:
(b) provided by wrongful Except statute, where otherwise having death, cause of other than one as an essential element or a IN THE SUPREME originated under damage property which defect or damage or making the circumstances origin, of its readily apparent at the time to the claimant injury dis- was time the at the accrued is deemed reasonably claimant, ought have been or covered occurs; provided him, event first whichever discovered years from exceed 10 shall not in such cases to the claim rise of the defendant the last act [Emphasis relief. ours.] limitation contained must refer apparent. [5] damage The originate provisions of G.S. 1-15 Obviously, readily under circumstances to cases under apparent in which the facts of instant proviso of the to the claimant. making relate to causes of statute, was not case, the injury, defect therefore, ten-year readily privity readily or contractual apparent. Plaintiff had no *13 injured any way in relationship and was not with defendant manufactured, His initial sold or assembled. the crane was
when January that time cause and at on 14 occurred of action accrued. ten-year proviso legislature apply to intended Had the easily provided with- cases, it have so to all could of the statute language (b). resorting of G.S. 1-15 to the cumbersome
out majority opinion. stated, I in the concur the reasons For concurring opinion. joins in this Huskins Justice concurring. Exum Justice and, noted, majority except opinion
I concur in concurring opinion Branch. in of Justice 1-15(b) provides: General Statute by statute, provided a cause “Except where otherwise having wrongful death, as an than for other one in person aor to the essential element defect originated damage property which under circum- or to readily damage making injury, defect or stances apparent origin, deemed time of is at the to the claimant injury was discovered the time the to have accrued at ought reasonably discovered claimant, to have been or the by occurs; provided that in such him, first event whichever FALL TERM 1976 cases the shall exceed 10 from the last act giving (Em- of the defendant to the rise claim for relief.” added.) phasis “bodily injury
It is to per- clear me that the words to the damage bodily property” son or a in or defect to refer to damage property belonging or claimant a defect in or to injury, damage latent, or, the claimant which defect or is readily in the words of the apparent statute “not the claim- “injury” It ant.” clear also in the line word seventh quoted personal injury, prop- of the statute as erty damage, above includes property upon and defects in claim which a might relief be based. The our statute amends traditional rule by which the claim relief accrued at the time the claimant injury, latent, suffered some however technical or inconse- quential, trespass because of a to his or a defect or damage property. to his own Under the statute his claim accrues damage prop- from defect in actually erty, latent, reasonably if discovered or should “by (How have been discovered the claimant.” could claimant expected property be ever discover a latent by it?) provides another he before is hurt The statute then this kind case the claimant more than shall no last act of rise to his discovery bring claim make and to suit. necessary
It is not to condemn or overrule this Court’s holding Causey R., (1914) v. R. N.C. S.E. 917 willing say wrongly I am not now that de- case was cided. *14 [5, 6] point by majority opinion The essential made well by concurring opinion Justice Branch in his that is here injury. is (b)
there no 1-15 latent Therefore General Statute simply application has no Pinkston v. Hamil these facts. In Company, 120, argued 1976, ton No. Fall Term in this Court 11, 1976, involving which, materially, on November are facts case, plaintiff the same as in the instant both for the counsel argument agreed and the in oral General Statute that (b) apply. 1-15 did not reasoning ap- in error of the dissenters becomes parent, me, they it seems to view assumed when base their on an they readily say apparent in defect the crane which was “not in claimant.” The the record defect references IN THE SUPREME COURT
Raftery v. Co. Construction complaint was allegations that the crane in the are in the crane designed. precise is the negligently Nowhere manufactured may is the defect It be that the defect described. nature of knowledgeable any Furthermore observer. perfectly obvious decedent, owned the crane when, ever, who never if should the reasonably or, know, possession, have had it in his as far as we how the dis- to understand I am at a loss discovered defect? unsup- assumption, on their senters would dismiss this claim record, in the crane by anything ported hidden, readily apparent latent, claimant.” or “not Casualty 2d Co., Brown S.E. by in stands (1974), Justice her dissent relied on Chief ultimately proposition that if a claim for the death it is than from the date of is more two by 1-53(4) is whether the defendant barred General Statute liability insurance or the deceased’s the hit and run motorist statement that General Statute carrier. The Chief Justice’s necessary refers, by (b) in context . . . also 1-15 when “[r]ead by property implication, caused a defect origin” only if the apparent at of its is correct the time If the “property” that of the claimant himself. referred to is belongs than the “property” to someone other claim- referred to then seems amend rather than construe ant this statement the statute. import I understand the of the Chief Justice’s
Neither do majority’s interpretation statement that under General bringing (b) an action “will extend the time for Statute Price, in a to that Jewell v. N.C. situation similar (1965), plaintiff dam- 2d 1 where a sued to recover ages de- for the destruction of his home a fire caused furnace, he sues to fective but will bar the same if injuries blaze.” In recover for sustained the same case, statute, interpreted majority, would such a operate furnace installed in a as follows: When a defective grounded home, the owner has an immediate claim for relief readily apparent on this defect. If the defect is not to the owner installed, provides when furnace is General Statute 1-15 accruing claim, in- instead of at the time of owner’s ought stallation, accrues when the defect is discovered or rea- may sonably discovered him. In no event to have been longer than 10 from the defendant’s last act owner have *15 causing discovery in the furnace to make and to FALL TERM y.
Raftery Co. Construction the home be bring furnace caused the defective suit. If fire, injured the owner’s owner to be and the burned damage injury personal would both property claims for de- subject defense if the owner statute of limitations to a be filing date layed three suit more than from the last act of the more than 10 fire or causing The distinction between this the defect in the furnace. extant there was an now before us is that and the case situation immediately after the de- which could have been claim Raftery the other hand had purchased. on furnace was fective hurt and killed the crane. until he was no claim whatever Sharp dissenting: Justice Chief dissenting opinion Moore and add
I of Justice concur following additional observations. majority opinion (1) is: that G.S. of the The rationale (b), any terms, application for no has injuries for when the death or to an action immediately (2) apparent; and is instantaneous until the time since intestate sustained no upon plaintiff’s death, no statute of limitation bears his two-year period except 1-53(4), prescribed bringing an action for death. stated, my plain- view that For the reasons hereinafter the interaction of G.S. 1-15 and G.S. tiff’s suit is barred 28A-18-2, which authorizes an action for the statute basically remained un- death. Our death statute has and, begin my analysis changed majority, I since 1868 like the of this case with it. part pertinent provides: G.S. 28A-18-2 by wrongful
“(a) person the death of a is caused When another, would, injured act, neglect stick as or default if рerson damages to an action have entitled him therefor, corporation that would been or so liable, personal representatives collectors, and his or their damages, (Emphasis liable to an action for . . .” shall be added.) meaning italicized that had the
The clear clause is injuries deceased survived the which caused his death and had legally therefor, per- recover he been entitled to *16 THE IN SUPREME Raftery v. Construction Co. wrongful representative of
sonal
then has a cause
action for his
legal rights
possessed
on
death based
whatever
the decedent
legal rights,
his
If the
had
the time of
death.
deceased
no
his
only
proviso
has
administrator
none. The
thus refers not
to a
rights,
procedural
deceased’s substantive
but to the
limitations
attending
by
rights. Therefore,
those
if the deceased was barred
applicable
of
of
limitations at the time
his death
maintaining
injuries
per-
from
sonal
an
then
action
his
maintaining
representative
will also be
from
barred
resulting
injuries.
from
those
majority
juris-
This construction follows that
a
problem.
page
which
dictions
have considered
See
majority opinion
and cases therein citеd. It
is also the
adopted by
Casualty Co.,
rationale
Brown
this Court in
v.
313,
(1974).
N.C.
Brown,
S.E. 2d 829
April
highway
intestate died on 26
and
1969 when his car left the
having
crashed after
been
rear
struck
a hit-and-
sought
plaintiff
run driver. The
policy
recover the
limit
from the
liability
deceased’s automobile
insurance
under
carrier
required
the uninsured motorist
rider which
the insurer “to
pay all
legally
sums which the insured . . . shall be
entitled to
damages
recover
operator
as
owner or
of an uninsured
(Emphasis
brought
added.)
plaintiff
automobile. ...”
her
April
suit on 25
1972.
Casualty
In Brown
Co., supra,
we held that
be
“[t]o
‘legally
damages’
entitled
to recover
a
must not
remedy
a cause of
a
but
which he can reduce his
judgment,”
id. at
204 S.E. 2d at
and that
defense of
upon
statute of
stands
limitations
plane
any
legal
the same
as
other
defense.
Since
insured
any
died,
against
suit
the hit-and-run motorist
to recover
for his
death would have had to have been
within two
1-53(4).
Therefore,
death. G.S.
a re
covery
legal rights
based on the insured’s
also had to meet the
two-year
bar. The
Casualty Company having
suit
been
filed almost three
death,
after the accident and
we held
that the
“legally
insured was not
entitled to recover” from the
unidentified uninsured motorist
plaintiff,
and hence the
personal representative, could not recover from his insurer.
significant
There can be no
import
difference
between
phrase
the italicized
policy,
in the
required
insurance
FALL TERM 1976
“legally
pay
en-
the sums which the insurer was
the insurer
damages”
operator of an
recover
from the owner or
titled to
automobile,
phrase
uninsured
the similar
personal representative
cause of action
death statute
when the death of his decedent was caused
negligent
would,
injured
act of another
had the
such as
*17
party
him an
there-
“have entitled
action for
It
not that
in an insurance
for.”
matters
one clause is found
logic
contract and the other in the statute books. The same
compelled
compels
first
second.
which
the
construction
the
support
In
of its conclusion that
the
limitations,
majority
not barred
the
cites
statute of
the
Causey
R.,
5,
(1914).
v. R.
166
case
N.C.
The facts in v. a R. were these: injuries employee, railroad died on 7 June 1912 from sustained negligence 1on December 1903 as a of defendant result of the 1903, $75.00, the Railroad. On 27 December consideration agent injured Railroad’s claim obtained a from the release Causey. brought by Causey’s the action administrator wrongful death, 1912 for the release was set aside the allowed to recover for his intestate’s death. Causey’s
At the time of death both his action to rescind the injuries personal release and to recover for his were barred Notwithstanding, although that statute. this Court held “ good against rdinarily, bar of the statute is defense [o] intestate,” administrator, if in an available privity action for death there was no between Therefore, lapse administrator and his intestate. and the death not bar
between the of the intestate would wrongful death, action for administrator’s which did until that come into existence the death. The rationale was statutory requirement deceased, at the time of his injuries death, must have been entitled recover for the death relates to the without caused his character regard question of time of suit or death. THE IN SUPREME COURT
200
Causey
had not been decided two
before the Court
began
away from
to back
that decision. In Edwards v. Chemical
551,
Co.,
(1916),
635
N.C.
S.E.
the Court held that
injuries
personal
intestate’s action for
and his administrator’s
single wrong,”
on
were based
“a
compensated
injuries
a defendant who had
the deceased for his
during
description
per-
his lifetime did “not answer the
of ‘the
”
son who would have been
if death had
liable
not ensued.’ . . .
said,
may
meaning
The Court
“The statute
well be construed as
party
bringing
who at the time of the
of the action
‘would
if
have been liable
death had not ensued’ shall be liable
notwithstanding
death,
to an
555,
etc.” Id. at
Causey
S.E. at 637.
reference
With
said:
Court
“We were
Causey
R.,
being
5,
referred
counsel to
v. R.
ruling,
N.C.
present
contravention of our
but
inter-
we do
so
pret
the decision.” Id. at
637.
Talley,
Mitchell
Not since
(1921), involving only representative’s a case *18 property wrongful to attach the in death action, Causey any involving has this Court cited case wrongful infrequently during death statute. When cited years, past grounds it has been with reference to fraud as for rescission of an instrument. my wrong.
It Causey clearly is view that the decision in It cannot express wrongful be reconciled with the words of the statute, dеath and it is inconsistent with the unanimous Court’s Casualty Co., supra, decision in Brown v. rendered in sixty years Causey specifically later. should be overruled forth left, with misplaced and not sign, like a street to create con fusion. See Williams v. Corporation, General Motors 393 F. Supp. 387, (1975). personal representative’s wrongful Since a action for death by any is barred statute of limitation which would have barred his personal decedent’s action for injuries, question we must decide here Raftery, is whether the deceased had he could have maintained an action. Raftery Defendant contends that had injuries, (b) (1971) survived his G.S. 1-15 prevented would have maintaining him from an provides: action. This statute “(b) Except provided by statute, where otherwise a cause wrongful other than one death, having es- sential element or a defect in or FALL TERM 1976 damage originated property under mak- circumstances ing damage injury, readily apparent defect or origin, claimant of its is deemed to have accrued ought at the time the was discovered the claimant or reasonably by him, to have been discovered whichever event first occurs; provided in such cases the shall not exceed years from the last act of defendant rise to the claim for relief.” earlier, majority’s
As noted first contention with refer- (b) ence to application G.S. 1-15 it has no to this case wrongful because specifically excepted death is from those ac- tions deemed to have accrued at the time the damage property in or is or should have been dis- along covered contention, the claimant. This same with the (b) upon 1-15 (G.S. effect G.S. death statute 28A-18-2), was considered in Arrowood v. Motors General Corp., (4th 1976). F. 2d 1321 Cir. That case involved an arising instantaneously out of an fatal automobile accident which was caused a car concealed defect purchased by decedent more than three before Except quoted, analysis death. Russell, when (b) by Judge, opinion Circuit who wrote the of the court Arrowood, is summarized below: By “excepting phrase” 1. legisla- in G.S. 1-15 expressed ture its intention “permit that this section should not wrongful death, an action arising whether prod- one out of a otherwise, begun uct defect or to be more than two after death; 1-53(4) it intended that should continue to § control the accruаl date actions for death and the time when begin the statute of limitations should Specifically, to run. delay did not intend the accrual of . . . *19 death ac- involving product tions a discovery defect defect, until (b) which was effect personal the of 1-15 injury actions, for § but intended that the accrual of such action should remain the 1-53(4).” date of death as fixed 359 F. 2d at § 1324. excepting 2. Without language, (b) G.S. 1-15 would changed have the date on which began the statute of limitations wrongful run on an action for involving product death de- fect from the date of death to “the time when the defect in the product causing death was discovered the exercise of due diligence should have been (However, discovered.” IN THE SUPREME
Raftery Co. v. Construction years act of discovery from the last “shall not exceed for relief.”) giving for Without rise to the claim the defendant right clause, in such a excepting of action “the accrual of personal actions for identical situation be] [would wrongful actions”; and, cases, the omission death in some for wrongful have extended exception would of death actions of years beyond far two the time for the accrual of suсh an action (b) To extent 1-15 would the date death. this G.S. of 1-53(4). prevent result the General Id. To amended G.S. wrongful exception Assembly for death. inserted though, (b), excepting phrase in 1-15 did 3. “The § allegedly wrongful defec- due to an mean that actions for death accrue, of limita- product and the statute tive tion were to be held to begin run, purchase as of the date of along (b) product. wrongful with G.S. 1-15 is considered ...” When directly itself, on it bears death statute is clear that right for the one for the to an action basic condition “ death, i.e., ‘injured party,’ main- if he had could have could, personal injuries. If he the action for tained an action for exists; not, does not death if he could the action Id. exist.” (b) requirement
4. 1-15 removed that an When G.S. personal injuries arising product out a concealed brought years purchase must within after be three any product requirement suit it removed for injuries personal for not barred on the date of its ratification (21 July 1971) hypothetical for but also “for the [suit way injuries] of a con- stated 28-173 § [now 28A-18-2] of an death. dition to the maintenance However, death must still be ... [a]n years expressly provided in from death as within two discovery 1-53(4) the defect and not two from the § purpose, purpose, product. This was the and the sole it, excepting (b).” phrase 1-15 Id. at 1325. we see § analy- Judge interpretation I flaw in find no Russell’s (b). interpreted Raftery’s plain- 1-15 bars sis of G.S. Thus because, to recover for at the tiff’s death, than of the elapsed which caused his more ten rise to the
since “the last act of claim for relief.” *20 FALL TERM 1976 injuries personal caused majority view that
The obvious by damage readily property apparent at a to not purview defect in origin (b) 1-15 the time within of G.S. of its are not purpose with strict a inconsistent of the statute too Motors to construction be reasonable. See Arrowood General noted, Corp., supra already at As action af- 1322-23. causes of by (b) those, 1-15 than fected other one for are “having death, bodily injury as an essential element to originated damage property or a defect in or to which making damage under readily circumstances defect or origin.” apparent to the claimant at the time of its (Emphasis added.) pronoun equally injury The its refers to an person, property, injury property. defect in refers, by necessary bodily implication, Read in context it also property apparent caused defect in origin. of its case, taking allegations
In this complaint of the as true stage proceedings —which must do we at this defect —a crane, origin in apparent which was not at the time of its the proximate in cause of plaintiff’s
resulted in the death of in intestate This con- 1972. property cealed in in defect would “an have been essential element” personal injuries, intestate’s for his survived he However, them. since the defect had not been discovered origin, (b) more than 10 after its G.S. 1-15 would have barred his -action. That section therefore relates to and bars plaintiff’s death. G.S. 28A-18-2. majority’s assumption an action an obvious
personal caused a hidden property, pronoun (as (b)) used in G.S. 1-15 refers to the iujury alone, enures to However, benefit this case. inevitably operate it will many detriment of future claim- ants and instance, lead some absurd results. For this limited interpretation will bringing extend the time for an action in a Price, situation similar to that in Jewell v. N.C. (1965), plaintiff 2d 1 where a sued to recover for the destruction of home furnace, a fire caused a defective but it will bar the same if per- he sues recоver for injuries sonal sustained in the same blaze. majority correctly As the observed, purpose “The of G.S. give injured towas relief to persons from the harsh THE SUPREME IN
Raftery Co. v. Construction supra; Price, v. flowing as Jewell from such cases results” ; (1967) and Lloyd, 363, 2d 508 v. 246 N.C. 98 S.E. Shearin (1952). See 510, Shaver, 2d 320 v. 73 S.E. Lewis (4th Products, Inc., Cir. this F. 2d Green M.T.D. 1971) In view of pertinent are collated.” “where the cases (b) legislative only perceive 1-15 purpose I G.S. can manifest having broadly cases where a claimant drawn to cover all been time peril him at a exposed causes a dormant which limitation, but applicable statutes past the limits otherwise giv years from act of more than “10 the last ing within This case falls rise the claim relief.” 10-year proscription. right interpretation, intestate Under survived, injuries, recover had he for his any passage he barred of time before ever suffered was injury, might just he was
but it as well have banished before also majority adopted interpretation of seems to its born. (b) However, within 1-15 in order to avoid even G.S. this result. many majority’s construction, operates to bar the statute injury. For exam- causes of action before the claimant suffers ple, the current owner crane is barred recovering failure for the which caused its hidden defect from Indeed, years before in 1972. was barred in three bought However, original purchaser. its we he the crane from possibility face that must the fact solons cannot eliminate may appli- hardships in result situations from the unusual general. any salutary operation its cation of statute however Indubitably perils not cause there can be and defects will origin. long equally until their It is true that after may proof passage impossible make valid sub- allegations upon stantive an action based of ancient defenses to wrongs or This could a case. defects. be such appears
Here it from the the trial affidavits considered judge hearing summary judgment upon the at the motions (1) that had no with the defendant-manufacturer contact Thompson Company in suit sale to M. crane since its the J. 1953; Thompson (2) Company used crane in June general selling business for 13 it
construction before Roger Barbour, employer, 1966 to K. Industrial intestate’s t/'a Welding Service; (3) similarly that Barbour had used crane for before failed and caused death. intestate’s FALL TERM any event, Assembly has that for the General decided resulting nonapparent perils, injuries the statute certain begin act of the defend- of limitations shall to run from the last necessarily to the claim for relief. That decision ant rise the in- implies jury action will before that some causes of be barred public reasonably A sound occurs or becomes discoverable. liability, put policy requires that at sometime an end must be thereby The ulti- even if meritorious claims are cut off. some *22 goad purpose mate procrastinating limitation has not been behind statutes of rights asserting pro- into their but to claimants from claims adequately tect are too old to be defendants which purpose afford “The of a of limitation is to refuted. statute against deprive anyone security demands, of his not to stale may just rights by instances, lapse of ... In some time. operate bar of meritorious causes of action. the maintenance strong cause, urge to write confronted with such a is When exceptions appear there. In such into the case, that do not statute Campbell’s ‘Hard we must bear mind Lord caution: ” Lloyd, supra cases must not make bad laws.’ Shearin 2d at 514. 98 S.E. voting join stated, I Moore in For thе reasons with Justice Appeals to reverse the decision of the Court of and to affirm dismissing judgment Superior plaintiff’s Court action. of Copeland joins dissenting opinion. Justice in this dissenting: Justice Moore respectfully opinion adopted ma- I dissent from against
jority de- and I would hold that claim of fendant, Equipment Company, barred. Clark should be 1-15(b) provides: by statute,
“Except provided where otherwise cause action, having an death, than one for other essential element or a defect damage property originated or under circumstan- readily appar- damage making ces ent to or origin, deemed to the claimant at the its is have accrued at the time the discovered claimant, ought reasonably discovered to have been him, occurs; provided such that whichever event first the last cases the shall not exceed IN THE SUPREME act rise to the claim defendant for relief.” added.) (Emphasis statutory construction, Under the rules a statute is “plain meaning.” (b) be construed G.S. 1-15 that states “ applicable having it is ... a cause of action . . . as an essen- readily tial property appar- element ... a defect in .. . . . not . origin. ent tо the claimant at the time of its ...” The statute clearly only requirement states that application ten-year contain, the essential the cause of action as an proof, property. element of the fact of a defect in In case, plaintiff’s instant an essential element of claim is that property there (a crane), was a defect in the and therefore G.S. operate should to bar claim Equipment Company. Clark wording statute, “a cause of than other wrongful death,” change one for my opinion does not
ten-year period applies limitation to the case at bar. The words quoted “cause of action” in portion the above of the statute re- legislatively fer to a words, created claim for relief. other remedy the statute persons injured creates for those who are by an undiscoverable *23 bringing defect and extends the time for years. such action to not more than ten As stated the ma- jority opinion, purpose (b) give “The of G.S. 1-15 was to relief injured persons flowing from the harsh results from this previously established rule of law delineated in Jewell v. [as Price, supra, and Motor Motors, Corp., Lines v. Gеneral su- pra] Thus, purpose .... enlarge, of this statute was to to restrict within damages the time which an action for could brought.” add, however, be I would that in no event was statute intended to period beyond extend the limitation ten years. my opinion, In wrongful the exclusion of death actions operation from (b) 1-15 G.S. was pre- intended two-year serve limitations, had, statute of already which we wrongful for Otherwise, death two-year actions. limitation meaningless. would have For, been if death actions excluded, had not been bringing the time for such actions would have been extended to not more than ten from the time the hidden defect caused the death. majority opinion states, As the statute, death 28A-18-2, precedent creates a condition TERM 1976 FALL by caused plaintiff that death of the intestate was wrongful act, default, neglect manufacturer of of the or lived, injured person crane, would, had if the this “such as . . .” therefor.
have entitled him to an action for require death statute was and is intent of the a for decedent, in order he have a cause of action had majority bring personal representative such action. The requirement. opinion defeats this intention and two action within Plaintiff this Hence, it is not barred of the date on which it occurred. two-year lived, he However, plaintiff would statute. ten-year provides that statute which have been barred years from injuries period exceed 10 shall not for “the for relief.” rise to the claim the last act of the defendant twenty years. case, be In this would passed to agree majority 1-15 I with the that G.S. arising being subjected from to suits prevent tort feasors agree occurring many years past. I cannot facts wrongful death an to maintain entitled alleged over defect in a crane caused due to an twenty years. To so has had no control which defendant upon a manu- place burden an unconscionable hold would be arising subject from defects him claims to stale facturer fifty years twenty-five occurred, all, ten, or even if at which cases, without records ago. would be In a defendant such may at an earlier date. been available witnesses which my legislature majority the intent opinion, defeats years. ten period not to exceed to a to limit such claims Causey necessary, and, overrule if I to reverse vote prior to by plaintiff, was decided R., supra, relied on R. (b). of G.S. the enactment Copeland dissenting opinion. joins in this Justice