Rowland v. Beauchamp, 96

• Decision Date: 02 November 1960
• Docket Number: No. 96,96
• Citation: 116 S.E.2d 720,253 N.C. 231
• Court: North Carolina Supreme Court
• Parties: , 79 A.L.R.2d 1263 Danny ROWLAND, by his Next Friend, W. H. Messer, v. Dewey William BEAUCHAMP.

Page 720

116 S.E.2d 720

253 N.C. 231, 79 A.L.R.2d 1263

Danny ROWLAND, by his Next Friend, W. H. Messer, v. Dewey William BEAUCHAMP.

No. 96

Supreme Court of North Carolina.

Nov. 2, 1960

I. C. Crawford and Lawrence C. Stoker, Asheville, for plaintiff, appellee.

Van Winkle, Walton, Buck & Wall, by Herbert L. Hyde, Asheville, for defendant, appellant.

PARKER, Justice.

Defendant's motion to dismiss plaintiff's action was heard on 14 August 1959 by Burgin Pennell, Presiding Judge of the General County Court of Buncombe County. The parties stipulated that this court was duly organized and constituted according to law, and had jurisdiction of the parties and of the action. Judge Pennell in his judgment made findings of fact from facts stipulated by the parties and from the pleadings. Defendant has no exception to any of these findings of fact. The facts so found, so far as relevant to a decision of this appeal, are in summary, except as quoted:

On 18 February 1953, plaintiff, Danny Rowland, a child four years of age, sustained personal injuries as a result of being struck by an automobile driven by defendant. On 2 November 1953 plaintiff by his duly appointed next friend, Mrs. Edna Rowland, his mother, instituted an action against defendant in the General County Court of Buncombe County for the recovery of damages for personal injuries suffered as above set forth. On 1 December 1954 the General County Court of Buncombe County dismissed plaintiff's action by a judgment of involuntary nonsuit. From this judgment plaintiff appealed to the Superior Court of Buncombe County. On motion of defendant, the General County Court of Buncombe County dismissed this appeal to the Superior Court by judgment entered on 15 November 1956, which judgment, after reciting that this case came on to be heard on defendant's motion that the appeal by plaintiff from the judgment of involuntary nonsuit entered on 1 December 1954 be dismissed, contains the following findings of fact: 'The Court allowed plaintiff sixty days in which to serve case on appeal and allowed defendant forty days thereafter in which to serve countercase, and adjudged appeal bond in the sum of $50.00 to be sufficient. Thereafter, plaintiff served case on appeal on defendant's counsel on January 29, 1955, and thereafter defendant's counsel served exceptions on plaintiff's counsel on March 8, 1955. Appellee filed exceptions in the office of the Clerk of the General County Court on March 8, 1955, and appellant filed his case on appeal in the office of the General County Court on April 8, 1955. No further action was taken in said case with respect to said appeal, or otherwise, by either party until motion of the defendant for dismissal of the appeal, which was filed on the 19th day of September, 1956.' Whereupon, the court concluded as a matter of law that the appellant had failed to comply with the provisions of G.S. § 7-295, as well as other applicable provisions of the statutory law of North Carolina with respect to said appeal, and entered judgment dismissing the appeal. Plaintiff did not except to this judgment.

On 13 November 1957, W. H. Messer, grandfather of plaintiff, was duly appointed his next friend, and instituted the present action in the General County Court of Buncombe County by the issuance of summons on the day of his appointment, which summons was served on defendant 14 November 1957. The allegations in each of plaintiff's complaints are substantially identical. In the instant action defendant filed a verified answer in which he pleads as a bar to plaintiff's action the three-year statute of limitations, G.S. § 1-52(5), and the provisions of G.S. § 1-25-New action within one year after nonsuit, etc.

Judge Pennell in his judgment made the following conclusions of law:

'1. The present action was commenced more than three (3) years after the appointment of a next friend for plaintiff on November 2, 1953, and more than three (3) years after the institution of the original action by said next friend on November 2, 1953.

'2. That when the present action was instituted more than one year had elapsed since a judgment of involuntary nonsuit was entered by this Court on the 1st day of December, 1954.

'3. That when the present action was instituted less than one year had elapsed since the entry by this Court on November 15, 1956, of the judgment dismissing appeal from said judgment of involuntary nonsuit.

'4. That the language of G.S. [s] 1-25 'The plaintiff is nonsuited or judgment therein reversed on appeal, or is arrested.' includes within its meaning the judgment of dismissal of the appeal of the plaintiff, dated November 15th, 1956 from the judgment of nonsuit entered by this Court on the 1st day of December, 1954.'

Whereupon, Judge Pennell entered judgment denying defendant's motion to dismiss plaintiff's action.

From this judgment defendant appealed to the Superior Court of Buncombe County assigning as errors the court's conclusion of law number four, its refusal to sign the judgment tendered by defendant, and its signing of the judgment entered.

When this appeal came on to be heard by Judge Froneberger in the Superior Court, he entered judgment overruling all of defendant's assignments of error, affirming the judgment of the General County Court of Buncombe County, and remanding the case to that court for further proceedings.

Defendant appealed to the Supreme Court, and his assignments of error to this Court are the same as were his assignments of error to the Superior Court.

G.S. § 1-52(5) provides that an action for personal injuries must be brought within three years. When plaintiff's cause of action accrued, he was under the disability of infancy.

G.S. § 1-17 provides that a person entitled to commence an action, with exceptions not pertinent here, who is at the time the cause of action accrued an infant, 'may bring his action within the times herein limited, after the disability is removed, * * *, when he must commence his action, * * *, within three years next after the removal of the disability, and at no time thereafter.'

G.S. § 1-64 states that an infant may sue by his general or testamentary guardian or by his next friend.

In North Carolina, contrary it seems to the general rule in most jurisdictions, the rule, except in suits for realty where the legal title is in the ward, is that the statute of limitations runs against an infant as to all rights of action, 'which the guardian might bring and which it was incumbent on him to bring, in so far as may be consistent with the limitations of his office.' Johnson v. Pilot Life Insurance Co., 217 N.C. 139, 7 S.E.2d 475, 477, 128 A.L.R. 1375; Annotations 6 A.L.R. 1689 et seq., and 128 A.L.R. 1379 et seq.

This Court said in Johnston County v. Ellis, 226 N.C. 268, 38 S.E.2d 31, 38: 'In 27 Am.Jur., p. 839, sec. 118, is a summarized expression of the law as we conceive it to be here: 'The nexr friend has full power to act for the purpose of securing the infant's rights, and may do all things that are necessary to this end, although his power is strictly limited to the performance of the precise duty imposed upon him by law.' Roberts v. Vaughn, 142 Tenn. 361, 219 S.W. 1034, 9 A.L.R. 1528.'

Plaintiff's next friend, his mother, was duly appointed on 2 November 1953 to bring an action for plaintiff for damages for personal injuries, and she instituted such an action against the defendant the same day. It would seem that under the rule adopted in this jurisdiction as to the running of the statute of limitations against an infant who has a general or testamentary guardian, the statute of limitations began to run against the infant here upon the appointment of his mother as next friend for the special purpose of bringing an action for him to recover damages for personal injuries. See also Lineberry v. Town of Mebane, 219 N.C. 257, 13 S.E.2d 429, 142 A.L.R. 1033.

It is stated in Mebane v. Patrick, 46 N.C. 23: '* * *; so that it has grown into a legal adage, 'When the statute begins to run, it continues to run.' ' It is said in Frederick v. Williams, 103 N.C. 189, 9 S.E. 298: 'It is well settled that, when the statute of limitations begins to run nothing stops it.' What was said in Mebane v. Patrick is quoted in In re Will of Evans, 209 N.C. 828, 184 S.E. 818.

The record does not disclose why another next friend was appointed for plaintiff. The present action was instituted after plaintiff's first action was nonsuited and more than three years after the appointment of plaintiff's mother as his next friend, and is barred by the three-year statute of limitations, unless it is saved by the provisions of G.S. § 1-25, which reads as follows: 'If an action is commenced within the time prescribed therefor, and the plaintiff is nonsuited, or a judgment therein reversed on appeal, or is arrested, the plaintiff or, if he dies and the cause of action survives, his heir or representative may commence a new action within one year after such nonsuit, reversal, or arrest of judgment, if the costs in the original action have been paid by the plaintiff before the commencement of the new suit, unless the original suit was brought in forma pauperis.' The original action was brought in forma pauperis.

This Court said in Keener v. Goodson, 89 N.C. 273: 'The statute allowing actions to be brought within a year after judgment of nonsuit, was intended to extend the period...