Matthieu v. Piedmont Natural Gas Co., 705

• Decision Date: 20 January 1967
• Docket Number: No. 705,705
• Citation: 269 N.C. 212,152 S.E.2d 336
• Court: North Carolina Supreme Court
• Parties: Donald E. MATTHIEU, Plaintiff, v. PIEDMONT NATURAL GAS COMPANY, Original Defendant, and Walter J. Davenport, t/a Davenport Heating and Air Conditioning Company, Additional Defendant. Donald E. MATTHIEU and Evelyn S. Matthieu v. PIEDMONT NATURAL GAS COMPANY, Original Defendant, and Walter J. Davenport, t/a Davenport Heating and Air Conditioning Company, Additional Defendant.

Page 336

152 S.E.2d 336

269 N.C. 212

Donald E. MATTHIEU, Plaintiff, v. PIEDMONT NATURAL GAS COMPANY, Original Defendant, and Walter J. Davenport, t/a Davenport Heating and Air

Conditioning Company, Additional Defendant.

Donald E. MATTHIEU and Evelyn S. Matthieu v. PIEDMONT NATURAL GAS COMPANY, Original Defendant, and Walter J. Davenport, t/a Davenport Heating and Air

Conditioning Company, Additional Defendant.

No. 705.

Supreme Court of North Carolina.

Jan. 20, 1967.

Smith, Moore, Smith, Schell & Hunter and Herbert O. Davis, Greenboro, for plaintiff appellants.

McLendon, Brim, Brooks, Pierce & Daniels, Hubert Humphrey and Jerry W. Amos, Greensboro, for defendant Gas Company.

BRANCH, Justice.

The sole question presented for decision is: Did the trial judge err in allowing original defendant's motion for nonsuit? It is stipulated by counsel that the cases be consolidated for the purpose of appeal. The plaintiffs have abandoned all causes of action in their complaint except the action for negligent inspection. In filing its responsive pleadings, the original defendant pled the three-year statute of limitations in bar of plaintiffs' right of recovery. The period prescribed for the commencement of this action is three years from the time the cause of action accrued. G.S. § 1--52. Upon this plea the burden is on plaintiffs to show they instituted their actions within this prescribed period in order to repel the motion for nonsuit. Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508.

A cause of action accrues and the statute of limitations begins to run whenever a party becomes liable to an action, if at such time the demanding party is under no disability. This rule is subject to certain exceptions, such as torts grounded on fraud or mistake, none of which are applicable to the instant case. However, the more difficult question is to determine when the cause of action accrues. In the case of Mast v. Sapp, 140 N.C. 533, 53 S.E. 350, 5 L.R.A.,N.S., 379, this Court said: 'Where there is a breach of an agreement or the invasion of a right, the law infers some damage. * * * The losses thereafter resulting from the injury, at least where they flow from it proximately and in continuous sequence, are considered in aggravation of damages. * * * The accrual of the cause of action must, therefore, be reckoned from the time when the first injury was sustained. * * * When the right of the party is once violated, even in ever so small a degree, the injury, in the technical acceptation of the term, at once springs into existence and the cause of action is complete.'

In the case of Shearin v. Lloyd, supra, these principles were recognized and applied to a cause of action for malpractice based on the surgeon's negligence in leaving a foreign object in the patient at the conclusion of an operation. The Court held that where there was no fraudulent concealment by the physician, the cause of action could not be maintained more than three years thereafter. See also Jewell v. Price, 264 N.C. 459, 142 S.E.2d 1.

Conceding a negligent failure by Piedmont to inspect the system in 1960, plaintiffs had an immediate right to sue for all damages which accrued therefrom. Plaintiffs presented evidence that they lived in the dwelling from 1960 until December 1964, and that continuously during this period the conditions complained of existed without interruption. The damage which resulted thereafter was In aggravation of the original damage and resulted from the first injury.

"(P)roof of actual damage may extend to facts that occur and grow out of the injury, even up to the day of the verdict. If so, it is clear the damage is not the cause of action.' * * * It is likewise unimportant that the harmful consequences of the breach of duty or of contract were not discovered or discoverable at the time the cause of action accrued.' Jewell v. Price, supra.

Plaintiffs contend that defendant is estopped to plead the statute of limitations, and rely particularly on the case of Nowell v. Great Atlantic and Pacific Tea Co., 250 N.C. 575, 108 S.E.2d 889. Nowell is distinguishable from the instant case in that the defendant there admitted the existence of a structural defect, performed work to correct the defect, and told the plaintiffs they had found and made the necessary corrections. The defects concerned were not continuous and patent, being concerned with waterproofing, leaks around the windows, and lack of reinforcement called for in the surfacing of a parking lot. The plaintiffs in the Nowell case relied on statements made by the defendants until the defendants changed their position shortly before the three-year statute had run by stating that they would no longer be responsible. In the instant case the situation complained of existed patently and continuously for over a period of four years. Piedmont consistently took the position from the date of first notice that no defect existed and that it never made representations that would have led plaintiffs to refrain from suing or to change their position. Plaintiff's allegations and proof show they knew some defect existed and therefore could not have been misled by the alleged representations of defendants. Defendant never contended that it had found the trouble and made corrections. In Nowell v. Great Atlantic and Pacific Tea Co., supra, it is said: 'They relied upon the promise and...