Powers v. Planters Nat. Bank & Trust Co

• Decision Date: 05 March 1941
• Docket Number: No. 108.,108.
• Citation: 13 S.E.2d 431,219 N.C. 254
• Court: North Carolina Supreme Court
• Parties: POWERS. v. PLANTERS NAT. BANK & TRUST CO.

13 S.E.2d 431

219 N.C. 254

POWERS.

v.PLANTERS NAT. BANK & TRUST CO.

No. 108.

Supreme Court of North Carolina.

March 5, 1941.

Appeal from Superior Court, Nash County; J. J. Burney, Judge.

Action by R. A. Powers against the Planters National Bank & Trust Company to recover damages for wrongfully leasing and conveying certain property. From a judgment of nonsuit, plaintiffs appeal.

Affirmed.

Dan B. Bryan and Harold D. Cooley, both of Nashville, W. H. Yarborough, of Louisburg, and W. F. Taylor, of Golds-boro, for appellant.

Battle, Winslow & Merrell and J. P. Bunn, all of Rocky Mount, for appellee.

DEVIN, Justice.

Plaintiff instituted his action against defendant Bank for wrongfully leasing and conveying to him certain property which he alleged had been used by one infected with the germs of pulmonary tuberculosis, without informing him of that fact. He alleged that in consequence thereof he contracted tuberculosis and suffered substantial injury to his health. Defendant was acting as agent for the owner in leasing the premises, and as administrator in conveying the personal property.

The defendant, among other defenses, pleaded the statute of limitations. It was therefore incumbent upon the plaintiff to show that his action was begun within the time limited by the statute, and not afterward. It was admitted that the lease and conveyance of the property described was made November 30, 1934. The record shows that this action was begun December 15, 1938.

To rebut the conclusion that the action was barred by the three years' statute of limitations, the plaintiff contended that the action was based on fraud--fraudulent concealment--and that the statute did not begin to run until discovery of the fraud. Johnson v. Pilot Life Ins. Co., N.C, 13 S.E. 2d 241. But the complaint is bottomed on negligence. It alleges the breach of a duty on the part of the defendant in failing to inform him that the house had been occupied and the furniture used by a person suffering from tuberculosis. There was neitherallegation nor proof of fraud. It is well settled that in an action for damages, resulting from negligent breach of duty, the statute of limitations begins to run from the breach, from the wrongful act or omission complained of, without regard to the time when the harmful consequences were discovered. 17 R.C.L. 763-775; 37 CJ. 881, 882; Bank of Spruce Pine v. McKin-ney, 209 N.C. 668, 184 S.E. 506; Gordon v. Fredle, 206 N.C. 734, 175 S.E. 126; Daniel v. Grizzard, 117 N.C. 105, 23 S.E. 93; Blount v. Parker, 78 N.C. 128; Sullivan v. Stout, 120 N.J.L. 304, 199 A. 1, 118 A.L.R. 211; Schmidt v. Merchants Despatch Transportation Co., 270 N.Y. 287, 200 N.E. 824, 104 A.L.R. 450.

In his complaint the plaintiff alleged that the negligence of defendant was "continuing negligence in that it created or maintained a nuisance." This view is not presented in the brief, nor is it supported by the evidence....