Wall v. Flack

190 S.E.2d 671 (1972)

Mrs. Bonita WALL v. Mrs. Charles Z. FLACK, Sr.

No. 7229SC48.

Court of Appeals of North Carolina.

August 23, 1972.

*672 Hamrick & Hamrick, by J. Nat Hamrick, Rutherfordton, for plaintiff appellant.

Hamrick & Bowen, by Fred D. Hamrick, Jr., Rutherfordton, for defendant appellee.

MORRIS, Judge.

The sole question presented by this appeal is whether the record discloses that the plaintiff's claim is barred by the running of the statute of limitations. G.S. § 1-52(5). If so, defendant was entitled to judgment as a matter of law and summary judgment pursuant to G.S. § 1A-1, Rule 56, was appropriate. Brantley v. Dunstan, 10 N.C.App. 706, 179 S.E.2d 878 (1971).

"`The party moving for summary judgment has the burden of clearly establishing the lack of any triable issue of fact by the record properly before the court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded.' (Citations omitted.)" Singleton v. Stewart, 280 N.C. 460, 465, 186 S.E.2d 400, 403 (1972).

The affidavits supporting defendant's motion for summary judgment merely reiterate the allegation contained in her answer as to when the accident occurred, and viewing the record in the light most favorable to plaintiff, clearly show the existence of a triable issue of material fact. Liberty Loan Corporation of North Charlotte v. Miller, N.C.App., 190 S.E.2d 672 (filed 23 August 1972). To resolve the issue of when this accident occurred would have required a "trial by affidavits" at hearing on the motion for summary judgment which is clearly impermissible. Lee v. Shor, 10 N.C.App. 231, 178 S.E.2d 101 (1970).

The entry of summary judgment dismissing plaintiff's action constituted error.

Reversed.

BROCK and HEDRICK, JJ., concur.