LEWIS
v.
SHAVER.
No. 389.
Supreme Court of North Carolina.
November 19, 1952.*321 David H. Armstrong, Troy, for plaintiff appellant.
J. Laurence Jones and John H. Small, Charlotte, for defendant appellee.
BARNHILL, Justice.
The evidence considered in the light most favorable to plaintiff is sufficient to make out a prima facie case of technical assault or trespass upon the person of plaintiff. Therefore, the one question posed for decision is this: Is plaintiff's cause of action barred by the one-year, G. S. § 1-54, subd. 3, or the three-year, G.S. § 1-52, subd. 5, statute of limitations? We are constrained to answer in the affirmative.
The defendant demurred for that it appears upon the face of the complaint that plaintiff's alleged cause of action is barred by the one-year and the three-year statutes of limitations. The demurrer was overruled. Even so, the order overruling the demurrer was not binding on the trial court on the motion for judgment as in case of nonsuit.
A demurrer to a complaint, G.S. § 1-127, and a demurrer to the evidence, G.S. § 1-183, are different in purpose and result. One challenges the sufficiency of the pleadings, the other the sufficiency of the evidence. Smith v. Sink, 211 N.C. 725, 192 S.E. 108; Law v. Cleveland, 213 N.C. 289, 195 S.E. 809; Montgomery v. Blades, 222 N.C. 463, 23 S.E.2d 844; Coleman v. Whisnant, 226 N.C. 258, 37 S.E.2d 693.
Furthermore, the demurrer on the grounds assigned was an improper and unwarranted pleading. The statutes of limitations can never be taken advantage of by demurrer. Guthrie v. Bacon, 107 N.C. 337, 12 S.E. 204; Bacon v. Berry, 85 N.C. 124; King v. Powell, 127 N.C. 10, 37 S.E. 62; Oldham v. Rieger, 145 N.C. 254, 58 S.E. 1091; Logan v. Griffith, 205 N.C. 580, *322 172 S.E. 348. "The objection that the action was not commenced within the time limited can only be taken by answer." G. S. § 1-15.
Although the plea of a statute of limitations in bar of plaintiff's right to recover places the burden on plaintiff to show that the action was instituted within the time allowed by the pleaded statute, Allsbrook v. Walston, 212 N.C. 225, 193 S.E. 151; Muse v. Muse, 236 N.C. 182, 72 S.E. 2d 431, there is no time limitation on the right of such plaintiff to prosecute his cause until and unless the statute is expressly pleaded in the answer.
Plaintiff stressfully contends, however, that in any event she did not ascertain that the alleged tort upon which she relies had been committed until she consulted Dr. Welton in 1951, and that the statute began to run as of that date. But the statute itself fixes the date upon which the statutes began to run. "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." G.S. § 1-15. And the only "special case" in respect to torts "where * * * a different limitation is prescribed by statute" is contained in the three-year statute, G.S. § 1-52. This "different limitation" relates only to actions grounded on allegations of fraud or mistake. G.S. § 1-52, subd. 9. Consequently it has no application here.
Furthermore, we have heretofore expressly held that lack of knowledge on the part of plaintiff does not suspend the statute. Gordon v. Fredle, 206 N.C. 734, 175 S.E. 126.
The plaintiff in her amended complaint alleges that defendant "wrongfully, knowingly, fraudulently and unlawfully concealed and withheld from the plaintiff the fact that he had ligated * * * both fallopian tubes and thereby completely and permanently rendered the plaintiff sterlite * * * which this plaintiff did not and could not * * * have discovered except as herein alleged." She now contends that the alleged fraudulent concealment suspended the statute which, under the circumstances, began to run on the day in 1951 she actually ascertained the facts.
On the questions whether (1) the lack of knowledge of a cause of action postpones the commencement of the period of limitation until the facts are discovered, 34 A.J. 186, or (2) the fraudulent concealment of the facts constitutes an implied exception to the statutes of limitations, postponing the commencement of the running of the statute until discovery or opportunity to discover the facts, the courts are divided in opinion. See cases cited in 34 A.J. 186, n. 17, and p. 188, n. 13.
As stated, our statute fixes the commencement date of our statutes of limitations, and this Court has already adopted the majority view that the mere lack of knowledge of the facts constituting a cause of action does not postpone the running of the statute. Gordon v. Fredle, supra.
Whether the fraudulent concealment of the facts by the tort-feasor constitutes an implied exception to the statute, notwithstanding its express language, we need not now decide for the reason plaintiff offered no evidence to support her allegation of fraudulent concealment. Indeed, she testified the only time she saw the defendant was in the operating room, that he did not visit her in the hospital either before or after the operation, and she did not thereafter consult him about her condition or the operation he performed.
Since the alleged tort was committed in 1944 and summons in this action was issued 25 August 1951, the plaintiff's cause of action is barred by the three-year, G.S. § 1-52, subd. 5, if not the one-year, G.S. § 1-54, subd. 3, statute of limitations. Therefore the judgment dismissing the action as in case of nonsuit is
Affirmed.