Pinkston v. Baldwin, Lima, Hamilton Co.

BRANCH, Justice. The facts of this case are strikingly similar to those presented in Raftery v. Construction Co., 291 N.C. 180, 230 S.E. 2d 405. In that case the majority and concurring opinions agreed that the ten-year statute of limitations contained in G.S. 1-15 (b) applies only to those cases where the plaintiff’s initial injury is “not readily apparent.” In such cases the action is barred unless the injury is discovered and the suit is brought within ten years from the last act of the defendant giving rise to the claim. Obviously, under the facts of this case the provisions of G.S. 1-15 (b) never came into play, since there was no latent injury. In instant case defendants concede that G.S. 1-15 (b) does not apply to these facts, but argue instead that the action is barred by the three-year statute of limitations of G.S. 1-52(5), applicable to personal injury actions. G.S. 28A-18-2 [formerly G.S. 28-173], our wrongful death statute, in pertinent part, provides : 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; .... Defendants contend that the decedent Robert M. Pink-ston, had he lived, would have been barred by G.S. 1-52(5) from bringing suit to recover damages for his injuries and therefore his personal representative is likewise barred. This argument is based upon the assumption that the three-year statute of limitations in G.S. 1-52(5) began to run from the date on which defendants last had control of the injury-causing instrumentality. In Raftery, the majority and concurring opinions reaffirmed the well-established rule that a statute of limitations *263 does not begin to run until the cause of action has accrued and the plaintiff has a right to maintain a suit. A plaintiff’s cause of action accrues only when he suffers some injury. Here plaintiff’s intestate was not injured until the crane collapsed and killed him on 14 January 1972. At that time, his cause of action accrued and the three-year statute of limitations of G.S. 1-52 (5) began to run. This action was instituted against appellants in January 1973, which was clearly before the action was barred by the three-year statute, G.S. 1-52 (5), or the two-year statute applicable to wrongful death actions, G.S. 1-53(4). Therefore, for the reasons stated above and by authority of Raftery v. Construction Co., supra, and authorities therein cited, we hold that the present action is not barred by any statute of limitations. The decision of the Court of Appeals reversing the entry of summary judgment in favor of defendants is Affirmed. Chief Justice Sharp, Justices Moore and Copeland dissent for the reasons stated in their respective dissenting opinions in Raftery v. Construction Company, 291 N.C. 180, 197 et seq.