Shuler v. Gaston County Dyeing Mach. Co.

• Decision Date: 01 September 1976
• Docket Number: No. 7627SC202,7627SC202
• Parties: Calvin SHULER v. GASTON COUNTY DYEING MACHINE COMPANY, a corporation.
• Court: North Carolina Court of Appeals

Page 634

227 S.E.2d 634

30 N.C.App. 577

Calvin SHULER v. GASTON COUNTY DYEING MACHINE COMPANY, a corporation.

No. 7627SC202.

Court of Appeals of North Carolina.

Sept. 1, 1976.

Certiorari Denied by Supreme Court Nov. 4, 1976.

Roberts, Caldwell & Planer, P.A. by Joseph B. Roberts, III, Mount Holly, for plaintiff-appellant.

Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston by William E. Poe and Ervin W. Hankins, III, Charlotte, for defendant-appellee.

PARKER, Judge.

Chapter 1157 of the 1971 Session Laws, which was ratified on 21 July 1971, is as follows:

'Section 1. G.S. 1--15 is hereby amended by adding a new paragraph as subsection (b) and by designating the first paragraph as subsection (a) so that G.S. 1--15 shall read as follows:

' § 1--15. Statute runs from accrual of action.--(a) 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.

(b) Except where otherwise provided by statute, a cause of action, other than one for wrongful death, having as an essential element bodily injury to the person or a defect in or damage to property which originated under circumstances making the injury, defect or damage not readily apparent to the claimant at the time of its origin, is deemed to have accrued at the time the injury was discovered by the claimant, or ought reasonably to have been discovered by him, whichever event first occurs; provided that in such cases the period shall not exceed 10 years from the last act of the defendant giving rise to the claim for relief.'

Sec. 2. This act shall become effective upon ratification and shall not affect pending litigation.'

The present action was not commenced until 26 November 1973, which was after the effective date of Ch. 1157, 1971 Session Laws. This action, therefore, was not 'pending litigation' when that statute became effective. We find nothing in the statute to manifest a legislative intent that it should not affect claims, such as plaintiff's which were in existence on the effective date of the statute but as to which no litigation was then pending. Had that been the legislative intent, language appropriate for that purpose could easily have been employed. Trust Co. v. Redwine, 204 N.C. 125, 167 S.E. 687 (1933), cited by defendant, is not here controlling. The legislative act involved in that case provided it should be 'in force and effect From and after its ratification' (emphasis added), and the court held the statute to operate prospectively only. Section 2 of Ch. 1157 of the 1971 Session Laws provides that the act 'shall become effective upon ratification,' the sole exception being that it 'shall not affect pending litigation.' The 1971 act is remedial in nature, and absent a clear manifestation of legislative intent that it apply prospectively only, we hold it applicable to claims in existence and not yet barred when the statute became effective, the sole exception being that the statute 'shall not affect pending litigation.' Although an action already barred may not be revived by the legislature, 'that body may extend at will the time for bringing actions not already barred by an existing statute.' Jewell v. Price, 264 N.C. 459, 461, 142 S.E.2d 1, 3 (1965).

Applying G.S. 1--15(b) in the present case, plaintiff's cause of action against defendant 'is deemed to have accrued at the time the injury was discovered by the claimant, or ought reasonably to have been discovered by him, whichever event first occurs.' In this case that date was 27 November 1970, the date plaintiff received bodily injuries as result of the allegedly defective safety device. The action having been commenced within three years after that date, plaintiff's action is not barred by G.S. 1--52(5).

Since we hold G.S. 1--15(b) applicable to the present case, it is not necessary that we pass upon plaintiff's further contention that even without the benefit of that statute, plaintiff's cause of action against defenda...