STATE of North Carolina
v.
CESSNA AIRCRAFT CORPORATION and Continental Motors Corporation.
No. 7010DC554.
Court of Appeals of North Carolina.
October 21, 1970.*797 Atty. Gen. Robert Morgan by Asst. Atty. Gen. Roy A. Giles, Jr., for the state.
Young, Moore & Henderson by Gerald L. Bass, Raleigh, for defendant appellees.
*798 BRITT, Judge.
Plaintiff assigns as error the granting of the motion to dismiss the action as to Continental. A careful review of the record impels us to conclude that the assignment is without merit and it is overruled.
Plaintiff's other assignment of error is to the granting of Cessna's motion for summary judgment based on its plea of the three years statute of limitations. We agree with the action of the trial court and its conclusion that any claim which plaintiff might have had against Cessna arose on 10 August 1966, the date of the sale of the airplane to Ross and Beam, which date was more than three years prior to the institution of the action.
We think the decisions of our Supreme Court in Thurston Motor Lines, Inc. v. General Motors Corporation, 258 N.C. 323, 128 S.E.2d 413 (1962), and Hooper v. Carr Lumber Company, 215 N.C. 308, 1 S.E.2d 818 (1939), are controlling in this case. The facts and holding in the Motor Lines case are accurately set forth in the headnote to the opinion (written by Bobbitt, J., now C. J.) as follows:
"Plaintiff's allegations were to the effect that one defendant sold and the other defendant manufactured a motor vehicle equipped with a faulty and dangerous carburator, that defendants knew or by the exercise of due care should have known of such defect and failed to warn plaintiff thereof, and that by reason of such defect the vehicle subsequently caught fire to plaintiff's damage. HELD: Plaintiff's cause of action, whether for negligence or for breach of warranty, accrued at the time plaintiff purchased the vehicle, since plaintiff then had a cause of action for nominal damages at least, and it appearing from the complaint that the action was not instituted until more than three years thereafter, judgment on the pleadings in favor of defendant is without error, it being immaterial that the actual or substantial damage did occur within three years of the institution of the action."
But plaintiff contends its position differs from that of plaintiff in the Motor Lines case because the plaintiff in that case was the purchaser of the alleged defective motor. In Hooper v. Carr Lumber Company, supra, plaintiff instituted an action to recover damages resulting from the overflow of waters of a river alleged to have been caused by the negligent acts and omission of defendant in its logging operations in the improper construction of bridges across the river, the leaving of tree laps and debris along the river bank, and the negligent failure to remove the bridges after cessation of logging operations. Plaintiff, a lower riparian property owner, was in no way a party to or interested in the logging operations. We quote from the opinion by Seawell, J.:
"The statute of limitations having been pleaded, the burden was on the plaintiff to show that his cause of action against the defendant accrued within three years prior to the institution of the suit. (numerous citations)
"While the plaintiff could not have brought and maintained his action until some injury to his property had occurred by reason of the alleged negligent acts or omissions of duty of the defendant, it does not follow that the time of the injury marks the beginning point of the running of the statute of limitations.
"Logically speaking, in a matter of tort at least, it takes both the negligent act or omission of duty, and the resultant injury, to constitute a cause of action; but since these may be widely separated in point of time, a closer analysis may be necessary in applying the statute of limitations. Whatever definition of `cause of action' may be adopted (see 1 Am.Jur. p. 404, sec. 2), and whatever distinction may be made between the `right of action' and `cause of action,' it seems clear that in a case of this sort both reason *799 and authority require that the running of the statute must be computed from the time of the wrongful act or omission, from which the injury resulted. Mobley v. Murray County, 178 Ga. 388, 173 S.E. 680. If we view the negligence or wrongful conduct complained of as a continuing omission of duty toward the plaintiff in permitting the logs, laps, and trestles to remain in the condition described, and a source of probable injury to plaintiff's land by causing obstructions in the river and consequent overflow, in order to repel the bar of the statute of limitations it must affirmatively appear from the evidence that these conditions were under control of the defendant, and the breach of duty with reference thereto had taken place some time within the period of three years preceding the injury. C.S. 441."
In the instant case, the alleged wrongful act or omission occurred on 10 August 1966 when the Cessna airplane was sold to Ross and Beam. Plaintiff makes no allegation that Cessna had any control over the airplane after that date. The assignment of error is overruled.
The order and judgment appealed from are
Affirmed.
CAMPBELL and VAUGHN, JJ., concur.