Hager v. Brewer Equipment Co., No. 7318SC109

Docket NºNo. 7318SC109
Citation195 S.E.2d 54, 17 N.C.App. 489
Case DateMarch 14, 1973
CourtCourt of Appeal of North Carolina (US)

Page 54

195 S.E.2d 54
17 N.C.App. 489, 57 A.L.R.3d 861
Edward Lee HAGER, Plaintiff,
v.
BREWER EQUIPMENT COMPANY, Defendant and Third-Party Plaintiff,
v.
E. E. YOUNTS, INC., and John S. MacBryde Company,
Third-Party Defendants.
No. 7318SC109.
Court of Appeals of North Carolina.
March 14, 1973.

Smith, Moore, Smith, Schell & Hunter, by Bynum M. Hunter, Greensboro, for defendant and third-party plaintiff appellant Brewer Equipment Co.

Perry C. Henson and Thomas C. Duncan, Greensboro, for third-party defendant appellee John S. MacBryde Co.

GRAHAM, Judge.

The question for decision is whether Brewer's third-party action for indemnity is barred by the three year statute of limitations. G.S. § 1--46; G.S. § 1--52(1) and G.S. § 1--52(5). We hold that it is not and reverse the judgment.

"In general a cause or right of action accrues, so as to start the running of the statute of limitations, as soon as the [17 N.C.App. 491] right to institute and maintain a suit arises, . . .' 54 C.J.S. Limitations of Actions § 109; 34 Am.Jur. Limitation of Action § 113; Shearin v. Lloyd, 246 N.C. 363, 367, 98 S.E.2d 508.' Motor Lines v. General Motors Corp., 258 N.C. 323, 325, 128 S.E.2d 413, 415. 'A cause or right of action accrues, so as to start the statute of limitations running, when the right to institute and maintain a suit arises, And not before' (emphasis added). 54 C.J.S. Limitations of Actions § 109, p. 11. G.S. § 1--15(a) (Supp.1971) provides that '(c)ivil actions can only be commenced within the periods prescribed in this chapter, After the cause of action has accrued. . . .' (Emphasis added.)

If Brewer's claim for indemnity accrued so as to give it a right to sue at the time it purchased the elevator, the statute of limitations started to run at that time and now

Page 56

bars the claim. However, while Brewer may have had a right to sue at that time for damages it incurred as a result of the negligence and breach of warranty now alleged, it obviously had no right to sue at that time to recover for damages it may be forced to pay a third party as a result of MacBryde's primary liability.

The right to sue for indemnity for damages resulting from the negligence, misfeasance or malfeasance of another does not accrue until legal payment has been made. Pritchard v. R.R., 166 N.C. 532, 82 S.E. 875. See 41 Am.Jur.2d, Indemnity, § 39, p. 729; 42 C.J.S. Indemnity § 25, p. 603; Annot., 20 A.L.R.2d 925 (1951). In this jurisdiction a defendant may have his indemnity claim against a third party determined in the plaintiff's original action, but '. . . a separate action for indemnity may not be commenced until after payment and satisfaction of the debt.' Ingram v. Smith, 16 N.C.App. 147, 152, 191 S.E.2d 390, 394, cert. denied, 282 N.C. 304, 188 S.E.2d 304.

In Pritchard v. R.R., Supra, plaintiff, an initial carrier, was compelled to pay to a shipper of peanuts damages caused by the negligence of defendant, a connecting carrier. Plaintiff sought recovery of the sum paid and defendant pleaded the statute of limitations. In an opinion rejecting the plea, it is stated: 'If the cause of action arose in June, 1910, when the peanuts were injured, then we think the claim would be barred by the statute, but in our opinion the cause of action did not arise until the money was paid by the plaintiff to the owner of the peanuts, and that was in July, 1911. * * * As between the common carrier and the shipper, the cause of action would arise when the [17 N.C.App. 492] damage ensued and the injury was inflicted; but now as between common carriers themselves, a cause of action would not arise in behalf of one carrier against the other until the common carrier suing for the same had paid the damages, as, until that had been done, it would have sustained no injury.' Id., 166 N.C. at 535--536, 82 S.E. at 876.

In the case of Godfrey v. Power Co., 223 N.C. 647, 27 S.E.2d 736, the question for decision was whether one of several defendants in an action for wrongful death arising out of a joint...

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11 practice notes
  • Grinnell Mut. Reinsurance Co. v. Center Mut. Ins. Co., No. 20020073.
    • United States
    • United States State Supreme Court of North Dakota
    • March 26, 2003
    ...... is that the indemnitee must actually have paid on the obligation for which he seeks indemnification"); Hager v. Brewer Equip. Co., 17 N.C.App. 489, 195 S.E.2d 54, 57 (1973) ("it is almost universally held" that a right to indemnity does not accrue until indemnitee "has paid damages to t......
  • Grothe v. Shaffer, No. 44990
    • United States
    • Supreme Court of Minnesota (US)
    • July 25, 1975
    ...certiorari denied, 234 So.2d 122 (Fla.1969); McGlone v. Corbi, 59 N.J. 86, 279 A.2d 812 (1971); Hager v. Brewer Equipment Co., 17 N.C.App. 489, 195 S.E.2d 54 (1973); State Farm Mutual Auto. Ins. Co. v. Schara, 56 Wis.2d 262, 201 N.W.2d 758, 57 A.L.R.3d 922 (1972); Bair v. Bryant, 96 A.2d 50......
  • Central Mut. Ins. Co. v. H. O., Inc., Nos. 353 and 354
    • United States
    • United States State Supreme Court of Wisconsin
    • April 2, 1974
    ...not to have been negligent on the running of the statute of limitations, the court held: '. . . This Court, in Hager v. Equipment Co., 17 N.C.App. 489, 195 S.E.2d 54 (1973), held that the trial court erred in dismissing a third-party action for indemnity against the seller of an allegedly d......
  • Coca-Cola Bottling Co.-Goshen, Ind. v. Vendo Co., COCA-COLA
    • United States
    • Indiana Court of Appeals of Indiana
    • October 25, 1983
    ...Airlines, Inc. Fairchild-Hiller Corp. (1979), 71 Ill.App.3d 637, 28 Ill.Dec. 277, 390 N.E.2d 444; Hager v. Brewer Equip. Co. (1973), 17 N.C.App. 489, 195 S.E.2d 54. See also Annot., 57 A.L.R.3d Page 374 There are two significant consequences in recognizing this as an element of the claim. F......
  • Request a trial to view additional results
11 cases
  • Grinnell Mut. Reinsurance Co. v. Center Mut. Ins. Co., No. 20020073.
    • United States
    • United States State Supreme Court of North Dakota
    • March 26, 2003
    ...... is that the indemnitee must actually have paid on the obligation for which he seeks indemnification"); Hager v. Brewer Equip. Co., 17 N.C.App. 489, 195 S.E.2d 54, 57 (1973) ("it is almost universally held" that a right to indemnity does not accrue until indemnitee "has paid damages to t......
  • Grothe v. Shaffer, No. 44990
    • United States
    • Supreme Court of Minnesota (US)
    • July 25, 1975
    ...certiorari denied, 234 So.2d 122 (Fla.1969); McGlone v. Corbi, 59 N.J. 86, 279 A.2d 812 (1971); Hager v. Brewer Equipment Co., 17 N.C.App. 489, 195 S.E.2d 54 (1973); State Farm Mutual Auto. Ins. Co. v. Schara, 56 Wis.2d 262, 201 N.W.2d 758, 57 A.L.R.3d 922 (1972); Bair v. Bryant, 96 A.2d 50......
  • Central Mut. Ins. Co. v. H. O., Inc., Nos. 353 and 354
    • United States
    • United States State Supreme Court of Wisconsin
    • April 2, 1974
    ...not to have been negligent on the running of the statute of limitations, the court held: '. . . This Court, in Hager v. Equipment Co., 17 N.C.App. 489, 195 S.E.2d 54 (1973), held that the trial court erred in dismissing a third-party action for indemnity against the seller of an allegedly d......
  • Coca-Cola Bottling Co.-Goshen, Ind. v. Vendo Co., COCA-COLA
    • United States
    • Indiana Court of Appeals of Indiana
    • October 25, 1983
    ...Airlines, Inc. Fairchild-Hiller Corp. (1979), 71 Ill.App.3d 637, 28 Ill.Dec. 277, 390 N.E.2d 444; Hager v. Brewer Equip. Co. (1973), 17 N.C.App. 489, 195 S.E.2d 54. See also Annot., 57 A.L.R.3d Page 374 There are two significant consequences in recognizing this as an element of the claim. F......
  • Request a trial to view additional results

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