Raftery v. Wm. C. Vick Const. Co.

• Decision Date: 07 December 1976
• Docket Number: No. 66,66
• Citation: 291 N.C. 180,230 S.E.2d 405
• Parties: Anne B. RAFTERY, Administratrix of the Estate of Allen G. Raftery, Deceased v. WM. C. VICK CONSTRUCTION CO. and Clark Equipment Company, a corporation.
• Court: North Carolina Supreme Court

Page 405

230 S.E.2d 405

291 N.C. 180

Anne B. RAFTERY, Administratrix of the Estate of Allen G Raftery, Deceased v. WM. C. VICK CONSTRUCTION CO. and Clark Equipment Company, a corporation.

No. 66.

Supreme Court of North Carolina.

Dec. 7, 1976.

Hedrick, McKnight, Parham, Helms, Kellam & Feerick by Richard T. Feerick and John A. Gardner, III, Charlotte, for plaintiff.

Maupin, Taylor & Ellis by Armistead J. Maupin and Richard M. Lewis, Raleigh, for defendant.

LAKE, Justice.

For the purpose of this appeal it must be assumed that, although the crane in question had been in use for 19 years without any known malfunction, the falling of the boom was due to a defect proximately caused by the negligence of the manufacturer in the design or manufacture of the crane. Thus, we are not presently concerned with whether the plaintiff, upon trial of the action, can produce evidence of such negligence and causation. The sole question is whether, assuming such negligence was a proximate cause of the death of the plaintiff's intestate, the statutes of this State preclude any recovery for such death.

GS 28A--18--2 provides:

'Death by wrongful act of another; recovery not assets.--(a) When the death of a person is caused by A wrongful act, neglect or default of another, Such as would, if the injured person had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their personal representatives or collectors, shall be liable to an action for damages, to be brought by the personal representative or collector of the decedent; and this notwithstanding the death, and although the wrongful act, neglect or default, causing the death, amounts in law to a felony. * * *.' (Emphasis added.)

GS 1--53(4), in conjunction with GS 1--46, provides that an action for damages on account of the death of a person caused by the wrongful act, negliect or default of another must be brought within two years. This is a statute of limitations, not a provision establishing a condition precedent to the cause of action such as was the provision of GS 28--173, the predecessor of GS 28A--18--2, prior to its amendment in 1951. Brown v. Casualty Co., 285 N.C. 313, 204 S.E.2d 829 (1974); Kinlaw v. R.R., 269 N.C. 110, 119, 152 S.E.2d 329 (1967); Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761 (1963); McCrater v. Engineering Corp., 248 N.C. 707, 104 S.E.2d 858 (1958).

GS 1--15(a), a general provision applicable to all statutes of limitations, provides, 'Civil actions can only be commenced within the periods prescribed in this Chapter, After the cause of action has accrued, except where in special cases a different limitation is prescribed by statute.' (Emphasis added.) 'In no event can a statute of limitations begin to run until plaintiff is entitled to institute action.' Strong, N.C. Index 2d, Limitation of Actions, § 4. 'The cause of action does not accrue until the injured party is at liberty to sue. The statute of limitations begins to run only when a party becomes liable to an action.' Aydlett v. Major & Loomis Co., 211 N.C. 548, 551, 191 S.E. 31, 33 (1937). 'Generally, a cause of action accrues to an injured party so as to start the running of the statute of limitations when he is at liberty to sue, being at that time under no disability.' Insurance Co. v. Insurance Co., 277 N.C. 216, 222, 176 S.E.2d 751, 756 (1970). 'Ordinarily, the period of the statute of limitations begins to run when The plaintiff's right to maintain an action For the wrong alleged accrues. The cause of action accrues When the wrong is complete, even though the injured party did not then know the wrong had been committed.' (Emphasis added.) Wilson v. Development Co., 276 N.C. 198, 171 S.E.2d 873, 884 (1970). 'The only exception (prior to 1971), as pointed out in Lewis v. Shaver (236 N.C. 510, 73 S.E.2d 320 (1952)), relates to actions grounded on allegations of fraud and mistake. GS 1--52(9).' Shearin v. Lloyd, 246 N.C. 363, 370, 98 S.E.2d 508, 514 (1957).

Obviously, the plaintiff could not bring an action for the wrongful death of her intestate until he died. She did so within two years from his death. Consequently, the action is not barred by GS 1--53(4), the statute of limitations relating specifically to actions for wrongful death.

We are thus brought to the question of whether the uncontroverted facts (for the purpose of this appeal) gave rise to a cause of action in the plaintiff for the wrongful death of her intestate. GS 28A--18--2, above quoted, makes it a condition precedent to such right of action in this plaintiff that the death of her intestate was caused by a wrongful act, neglect or default of the manufacturer of this crane 'such as would, if the injured person had lived, have entitled him to an action for damages therefor.'

It will be observed that this condition precedent to the maintenance of this action does not, by its express terms, include a time limitation but, upon its face, relates to the nature of the 'wrongful act, neglect or default' which caused the death and to the legal capacity of the decedent to sue therefor had he lived. For example, the administrator of an employee within the Workmen's Compensation Act cannot sue the employer for the wrongful death of the employee since the employee could not have sued the employer for his injury had he lived. Horney v. Pool Co., 267 N.C. 521, 148 S.E.2d 554 (1966). Likewise, except as GS 1--539.21 now provides, the administrator of an unemancipated minor child cannot bring an action for wrongful death against the child's negligent parent. Capps v. Smith, 263 N.C. 120, 139 S.E.2d 19 (1964); Lewis v. Insurance Co., 243 N.C. 55, 89 S.E.2d 788 (1955); Goldsmith v. Samet, 201 N.C. 574, 160 S.E. 835 (1931). In Hoover v. R.R., 46 W.Va. 268, 33 S.E. 224 (1899), quoted with approval by this Court in Causey v. R.S., 166 N.C. 5, 81 S.E. 917, 920 (1914), the Supreme Court of West Virginia said the similar wrongful death statute of that state, 'plainly relates to the character of the injury, without regard to the question of time of suit or death.'

The alleged 'wrongful act, neglect or default' of the defendant's predecessor (which, for the purposes of this appeal, we must take to be established as a fact) is in the manufacture and sale of a crane which, by reason of its design and the materials used in its manufacture, was defective so that the boom fell while it was being used as contemplated by the manufacturer, struck the plaintiff's intestate on the head and killed him, death apparently being instantaneous. Clearly, nothing else appearing, the plaintiff's intestate, an employee of the ultimate purchaser and owner of the crane, had he lived, could have maintained an action for damages against such manufacturer-seller. Douglas v. Mallison, 265 N.C. 362, 370, 144 S.E.2d 138 (1965); Wyatt v. Equipment Co., 253 N.C. 355, 117 S.E.2d 21 (1960); Gwynn v. Motors, Inc., 252 N.C. 123, 113 S.E.2d 302 (1960); Lemon v. Lumber Co., 251 N.C. 675, 111 S.E.2d 868 (1960); Tyson v. Manufacturing Co., 249 N.C. 557, 107 S.E.2d 170 (1959). Thus, if the condition precedent to the maintenance of the plaintiff's action for his wrongful death is limited to the nature of the manufacturer-seller's 'wrongful act, neglect or default' and to the legal capacity of the plaintiff's intestate to sue, that condition has been satisfied and the action is maintainable.

The defendant, however, contends that the condition precedent set forth in GS 28A--18--2(a) is not so limited. The defendant contends that this condition precedent extends also to the time period within which the plaintiff's intestate could have instituted an action against the defendant for damages had the plaintiff's intestate lived. Courts of other states have so construed similar provisions in the wrongful death statutes of those states. Ellis v. Black Diamond Coal Mining Co., 268 Ala. 576, 109 So.2d 699 (1959); Milford Memorial Hospital, Inc. v .Elliott, 58 Del. 480, 210 A.2d 858 (1965); Myers v. Plattsburgh, 13 A.D.2d 866, 214 N.Y.S.2d 773 (1961); Howard v. Bell Telephone Co., 306 Pa. 518, 160 A. 613 (1932); Street v. Consumers Mining Corp., 185 Va. 561, 39 S.E.2d 271 (1946). These cases hold that if a statute of limitations has run so that, at the time of the bringing of the wrongful death action, a suit by the deceased for his injuries would have been barred, the action for wrongful death cannot be maintained.

That is, the defendant contends that, had the plaintiff's intestate survived the blow on the head, he would not have been 'entitled' to an action for damages for his injury, due to the passage of time (approximately 19 years) between the manufacture and sale of the crane and the injury to the plaintiff's intestate, and, for that reason, the plaintiff may not maintain this action for wrongful death. We, therefore, turn to the question of whether, had the plaintiff's intestate survived the blow on the head, he could lawfully have instituted against the defendant an action for his injuries proximately caused by the alleged negligence in the design and manufacture of the crane 19 years before the boom fell upon him.

We turn first to GS 1--52, which, in conjunction with GS 1--46, provides as follows:

GS 1--46: 'Periods prescribed.--The periods prescribed for the commencement of actions, other than for the recovery of real property, are as set forth in this article.'

GS 1--52: 'Three years.--Within three years an action--

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'(5) For criminal conversation, or for any other Injury to the person or rights of another, not arising on contract and not hereafter enumerated. * * *.' (Emphasis added.)

Obviously, the negligence of the defendant (assumed for the purposes of this appeal) would confer no right of action upon the plaintiff's intestate until he suffered an injury proximately caused thereby. Until then, his cause of action was not complete and, nothing else appearing, the...