Hooper v. Carr Lumber Co.

Seaweix, 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. Southerland v. Crump, 199 N. C., 111, 153 S. E., 845; Phillips v. Penland, 196 N. C., 425, 147 S. E., 731; Rankin v. Oates, 183 N. C., 517, 112 S. E., 32; Marks v. McLeod, 203 N. C., 257, 165 S. E., 693; Aldridge v. Dixon, 205 N. C., 480, 171 S. E., 777. 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 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. O. S., 441. The law will not permit recovery for negligence which has become a fait accompli at a remote time not within the statutory period, although injury may result from it within the period of limitation; nor will the fact that defendant failed to remedy conditions out of which plaintiff might have been damaged, but which conditions had passed *312 beyond bis control more tban three years prior to plaintiff’s injury, be attributed to him as an omission of legal duty. In this case, considering the evidence in its most favorable light to plaintiff, it does not affirmatively appear that the acts complained of— at least those to which plaintiff’s injury under the evidence might have been attributable — had taken place within the three years prior to the institution of the suit; and if we should consider the leaving of the logs and laps and trestles in the condition described in the evidence in the aspect of a continuing omission of duty, plaintiff has not produced any evidence tending to show that the defendant had any further connection by way of ownership or lease with the premises or any circumstances from which control of these conditions at the time of plaintiff’s injury or within the statutory period during which his cause of action must have accrued, might be inferred and thus repel the bar of the statute. Under these circumstances, we need not inquire into the legal aspects of the controversy between the parties as to whether the evidence is sufficient to show negligence or wrongful conduct on the part of the defendant as the proximate cause of plaintiff’s injury and damage. The judgment of the court below is Affirmed.