North Carolina State Ports Authority v. Lloyd A. Fry Roofing Co.

• Decision Date: 24 January 1978
• Docket Number: No. 42,42
• Citation: 240 S.E.2d 345,294 N.C. 73
• Court: North Carolina Supreme Court
• Parties: NORTH CAROLINA STATE PORTS AUTHORITY, an Agency of the State of North Carolina v. LLOYD A. FRY ROOFING COMPANY, a corporation, United Pacific Insurance Company, a corporation, Dickerson, Inc., a corporation, and E. L. Scott Roofing Company, a corporation.

Page 345

240 S.E.2d 345

294 N.C. 73

NORTH CAROLINA STATE PORTS AUTHORITY, an Agency of the State of North Carolina v. LLOYD A. FRY ROOFING COMPANY, a corporation, United Pacific Insurance Company, a corporation, Dickerson, Inc. a corporation, and E. L. Scott Roofing Company, a corporation.

No. 42.

Supreme Court of North Carolina.

Jan. 24, 1978.

Rufus L. Edmisten, Atty. Gen. by Edwin M. Speas, Jr., Special Deputy Atty. Gen., Raleigh, for the State.

Dawkins & Glass by W. David Lee, Monroe, for Dickerson, Inc.

White, Allen, Hooten & Hines by Thomas J. White, III, Kinston, for E. L. Scott Roofing Co.

LAKE, Justice.

The Superior Court gave judgment on the pleadings dismissing the plaintiff's action against Dickerson for the reason that the plaintiff's claim is barred by the statute of limitations, having accrued more than three years prior to the institution of this action on 7 August 1973.

Such judgment on the pleadings is proper if, but only if, it appears upon the face of the complaint that the plaintiff's right to recover is barred by the lapse of time properly pleaded. Speas v. Ford, 253 N.C. 770, 117 S.E.2d 784 (1961); Nowell v. Hamilton, 249 N.C. 523, 107 S.E.2d 112 (1959); Mobley v. Broome, 248 N.C. 54, 102 S.E.2d 407 (1958); Latham v. Latham, 184 N.C. 55, 113 S.E. 623 (1922); Stubbs v. Motz, 113 N.C. 458, 18 S.E. 387 (1893); McIntosh, North Carolina Practice and Procedure, 2d Ed., § 373; G.S. 1A-1, Rule 12. Otherwise, the question is a mixed question of law and fact, the plaintiff having the burden of proving that his action was brought within the time allowed by the applicable statute, but having the right to offer such proof. Stubbs v. Motz, supra. As stated in McIntosh, "When the statute has been properly pleaded, it raises an issue of fact to be tried by a jury; and no reply is necessary by the plaintiff, but if it appears on the face of the complaint that the action is barred, and defendant pleads the statute, and there is nothing to show that the bar does not operate, the Court may decide the question upon the facts admitted." McIntosh, North Carolina Practice and Procedure, 2d Ed., § 373.

In the third claim for relief set forth in the complaint, the plaintiff alleges it contracted with Dickerson for the construction of the two buildings, including the roofs thereon, "in accordance with plans and specifications outlined by the plaintiff, and Dickerson broke this contract, as the result of which breach the roofs leaked."

The plaintiff's only prayer for relief under its first claim set forth in the complaint is against Fry and United Pacific Insurance Company upon their guaranty bond. In this portion of the complaint, the plaintiff alleges that the leaks in the roofs were caused by the use of defective materials or by improper installation thereof. If this claim for relief be deemed to allege a cause of action against Dickerson, it is clearly for a breach of the same contract which is the subject of the third claim for relief and adds nothing thereto.

In the second claim for relief set forth in the complaint, the plaintiff alleges "roofing work" on these buildings was performed in the summer of 1967 by Scott under the supervision of Dickerson, that Scott and Dickerson negligently failed to allow the roofs (i. e., the subsurface portions thereof) to dry properly before applying the roofing material or failed to allow the roofing material itself to dry properly before installing it, and that the leaks in the roofs were caused by this negligent failure to exercise proper care and workmanship in the construction of the roofs.

Ordinarily, a breach of contract does not give rise to a tort action by the promisee against the promisor. Insurance Co. v. Sprinkler Co., 266 N.C. 134, 146 S.E.2d 53 (1966); Toone v. Adams, 262 N.C. 403, 137 S.E.2d 132 (1964); Greene v. Laboratories, Inc., 254 N.C. 680, 120 S.E.2d 82 (1961); Council v. Dickerson's, Inc., 233 N.C. 472, 64 S.E.2d 551 (1951). It is true that there are many decisions of this and other courts holding a promisor liable in a tort action for a personal injury or damage to property proximately caused by his negligent, or wilful, act or omission in the course of his performance of his contract. Insurance Co. v. Sprinkler Co., supra; Jewell v. Price, 264 N.C. 459, 142 S.E.2d 1 (1965); Toone v. Adams, supra; Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508 (1957); Pinnix v. Toomey, 242 N.C. 358, 87 S.E.2d 893 (1955); Insurance Co. v. Parker, 234 N.C. 20, 65 S.E.2d 341; Council v. Dickerson's, Inc., supra; Powers v. Trust Co., 219 N.C. 254, 13 S.E.2d 431 (1941); Williamson v. Dickens, 27 N.C. 259 (1844). See also: Corbin on Contracts, § 1019; Prosser, Law of Torts, 4th Ed., § 1. However, such decisions by this Court, which have been brought to our attention, appear to fall into one of four general categories:

(1) The injury, proximately caused by the promisor's negligent act or omission in the performance of his contract, was an injury to the person or property of someone other than the promisee. See: Pinnix v. Toomey, supra; Council v. Dickerson's, Inc., supra.

(2) The injury, proximately caused by the promisor's negligent, or wilful, act or omission in the performance of his contract, was to property of the promisee other than the property which was the subject of the contract, or was a personal injury to the promisee. See: Insurance Co. v. Sprinkler Co., supra (promisee's merchandise damaged by water as the result of negligence in the installation of a sprinkler system); Jewell v. Price, supra (promisee's house burned as the result of negligence in the installation of a furnace); Toone v. Adams, supra (baseball umpire injured by an irate spectator allegedly due to the Club owner's failure to supply adequate protection); Shearin v. Lloyd, supra (medical malpractice).

(3) The injury, proximately caused by the promisor's negligent, or wilful, act or omission in the performance of his contract, was loss of or damage to the promisee's property, which was the subject of the contract the promisor being charged by law, as a matter of public policy, with the duty to use care in the safeguarding of the property from harm, as in the case of a common carrier, an innkeeper or other bailee. See: Insurance Co. v. Parker, 234 N.C. 20, 65 S.E.2d 341 (1951) (automobile stolen from a parking lot inviting public patronage).

(4) The injury so caused was a wilful injury to or a conversion of the property of the promisee, which was the subject of the contract, by the promisor. See: Williamson v. Dickens, supra (conversion of notes by a bailee for collection); Simmons v. Sikes, 24 N.C. 98 (1841) (conversion or wilful destruction of a canoe by a bailee).

It may well be that this enumeration of categories in which a promisor has been held liable in a tort action by reason of his negligent, or wilful, act or omission in the performance of his contract is not all inclusive. However, our research has brought to our attention no case in which this Court has held a tort action lies against a promisor for his simple failure to perform his contract, even though such failure was due to negligence or lack of skill.

In the present case, according to the complaint, Dickerson contracted to construct buildings, including roofs thereon, in accordance with agreed plans and specifications. It is alleged that Dickerson did not so construct the roofs. If that be true, it is immaterial whether Dickerson's failure was due to its negligence, or occurred notwithstanding its exercise of great care and skill. In either event, the promisor would be liable in damages. Conversely, if the roofs, as constructed, conformed to the plans and specifications of the contract, the promisor, having fully performed his contract, would not be liable in damages to the plaintiff even though he failed to use the degree of care customarily used in such construction by building contractors. Thus, the allegation of negligence by Dickerson in the second claim for relief set forth in the complaint is surplusage and should be disregarded. Consequently, the only basis for recovery against Dickerson, alleged in the complaint, is breach of contract and the Court of Appeals was in error in its view that the complaint "alleges an action in tort" against Dickerson.

The complaint alleges, "During the summer of 1968, the construction of these buildings was completed." It also alleges, "Roofing work on these two buildings was performed during the summer of 1967." Assuming that this latter allegation is intended to mean that all of the roofing work was completed during the summer of 1967, and further assuming, as the complaint alleges, that such work was improperly performed, so that the roofs were not built in accordance with the plans and specifications, the plaintiff's cause of action against Dickerson did not accrue in the summer of 1967 but in the summer of 1968 when Dickerson finished its work on the entire building. Dickerson's contract was for the construction of a building (actually two buildings). So long as the building was still under construction by Dickerson, defects therein were subject to correction by Dickerson and would not give rise to a cause of action by the plaintiff for breach of contract. A building contractor is not subject to suit instantaneously whenever his employee negligently fastens a beam or a shingle in place. Thus, the plaintiff's alleged cause of action for breach of contract accrued "during the summer of 1968."

At that time, an action for breach of contract, regardless of the nature of the breach, was barred by the statute of limitations after three years from the time the cause of action accrued. G.S. 1-52(1). This action was instituted 7 August 1973. Consequently, had there been no change in the applicable statute of limitations, this action would have been barred and, since this appeared on the face of the complaint, the judgment of the Superior Court would have been...