Lewis v. Godwin Oil Company

162 S.E.2d 135 (1968)

1 N.C. App. 570

G. K. LEWIS and wife L. P. Lewis v. GODWIN OIL COMPANY, Inc.

No. 68SC175.

Court of Appeals of North Carolina.

July 10, 1968.

*136 Sullivan & Horne, by Thomas E. Horne, Southport, for plaintiffs appellants.

James, James & Crossley, by Joshua S. James, Wilmington, for defendant appellee.

BRITT, Judge.

The sole question presented on this appeal is: Was the cause of action alleged by plaintiffs barred by the three-years statute of limitations pleaded by defendant? We hold that it was.

The period prescribed for the commencement of this action is three years from the time the cause of action accrued. G.S. § 1-52. Upon the plea of this statute the burden is on plaintiffs to show that they instituted their action within the prescribed period. Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508.

The decision of the Supreme Court of North Carolina in Matthieu v. Piedmont Natural Gas Co., 269 N.C. 212, 152 S.E.2d 336, is controlling in the case at bar. Branch, J., speaking for the court, said:

"A cause of action accrues and the statute of limitations begins to run whenever *137 a party becomes liable to an action, if at such time the demanding party is under no disability. This rule is subject to certain exceptions, such as torts grounded on fraud or mistake, none of which are applicable to the instant case. However, the more difficult question is to determine when the cause of action accrues. In the case of Mast v. Sapp, 140 N.C. 533, 53 S.E. 350, 5 L.R.A.,N.S., 379, this Court said: `Where there is a breach of an agreement or the invasion of a right, the law infers some damage. * * * The losses thereafter resulting from the injury, at least where they flow from it proximately and in continuous sequence, are considered in aggravation of damages. * * * The accrual of the cause of action must therefore be reckoned from the time when the first injury was sustained. * * * When the right of the party is once violated, even in ever so small a degree, the injury, in the technical acceptation of that term, at once springs into existence and the cause of action is complete.'"

In the instant case, plaintiffs' cause of action accrued prior to 16 August 1964. If it did not accrue on 22 July 1964, the day that defendant installed the tobacco curer, it definitely accrued several days later when plaintiffs completed curing their first barn of tobacco and discovered an oil film on the tobacco. The damage which resulted thereafter was in aggravation of the original damage and resulted from the first injury.

A judgment on the pleadings in favor of a defendant on defendant's plea in bar of the statute of limitations is proper when all the facts necessary to establish said plea are alleged or admitted in plaintiff's pleadings. City of Reidsville v. Burton, 269 N. C. 206, 152 S.E.2d 147.

The judgment of the Superior Court is

Affirmed.

CAMPBELL and MORRIS, JJ., concur.