Nowell v. Hamilton

RodmaN, J. Plaintiff asserts her right to maintain this action on two distinct theories: *525 First. She says this action is not one for a negligent injury barred at the expiration of .three years from the date of the injury, G.S. 1-52 (5), but is an .action based on fraud, governed by G.S. 1-52 (9) which fixes the date on which the statute starts to run not as the day of the injury but the day when the fraud was discovered. We think plaintiff’s pleadings point to G.S. 1-52(5) as the applicable statute. Shearin v. Lloyd, 246 N.C. 363, 98 S.E. 2d 508; Lewis v. Shaver, 236 N.C. 510, 73 S.E. 2d 320. Nonetheless, if, as plaintiff asserts, the applicable statute is G.S. 1-52(9), we must ascertain if plaintiff’s pleadings establish that her asserted cause of action is barred. We examine the pleadings to ascertain if plaintiff has fixed the moment when the statute started to run. That moment can in no event be later than the discovery of defendant’s asserted wrongful act. The amended complaint which is the first pleadings asserting defendant acted fraudulently does not point to the time of discovery, perhaps for the reason plaintiff had previously fixed the latest date when she could deny knowledge of defendant’s asserted wrongful act. In her complaint filed in 1953, included as a part of the pleadings in this action, she had charged defendant: “Failed to take into account the X-ray reports of the plaintiff’s condition which demonstrated that she was not obstructed.” (Emphasis supplied.) Plaintiff does not now deny that she knew in 1953 that defendant bad not correctly evaluated the X-rays. More than three years elapsed between plaintiff’s admitted discovery of the wrong and March 1958 when she stopped the clock by filing her amended complaint. Stamey v. Membership Corp., 249 N.C. 90. Her pleadings establish the bar of the statute which she selects as applicable to her ease. Second. Plaintiff’s second and somewhat inconsistent- position is that the present action is based on the same cause of action stated in 1953 and because the nonsuit suffered in 1955 was voluntary, she is permitted to bring another action based on the same cause within one year from the nonsuit. Even though plaintiff’s cause of action may be otherwise barred, G.S. 1-25 permits a plaintiff who has been nonsuited to bring another action to redress the asserted wrong. But the statute -annexes two conditions to the right: (1) The new suit must be brought within one year from the nonsuit. (2) Plaintiff must pay the costs awarded -against him in the prior action if he did not ,sue as a pauper. Plaintiff in this -action -admittedly has not paid the costs awarded against her. Defendant pleads that failure to deprive plaintiff of the benefit of the statute. *526 . Plaintiff, having elected not to comply with the statute, is not entitled to claim its protection. Osborne v. R.R. Co., 217 N.C. 263, 7 S.E. 2d 500; Loan Co. v. Warren, 204 N.C. 50, 167 S.E. 494; Rankin v. Oates, 183 N.C. 517, 112 S.E. 32. Affirmed.