City of Reidsville v. Burton

152 S.E.2d 147 (1967)

269 N.C. 206

CITY OF REIDSVILLE, a Municipal Corporation v. Joseph F. BURTON.

No. 765.

Supreme Court of North Carolina.

January 20, 1967.

*150 Jule McMichael, by Albert J. Post, Reidsville, for plaintiff appellant.

Defendant in pro. per.

PARKER, Chief Justice.

A judgment on the pleadings is proper only when the pleadings fail to present any issue of fact for the determination of a jury. Fisher v. Taylor Motor Co., 249 N.C. 617, 107 S.E.2d 94; Waggoner v. Waggoner, 246 N.C. 210, 97 S.E.2d 887; Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384; Jeffreys v. Boston Insurance Co., 202 N.C. 368, 162 S.E. 761; 3 Strong's N.C. Index, Pleadings, § 30, and supplement to ibid, § 30.

On a motion for judgment on the pleadings it is error for the court to hear evidence and find facts in support of its judgment, since only the pleadings themselves may be considered. Crew v. Crew, 236 N.C. 528, 73 S.E.2d 309; Remsen v. Edwards, 236 N.C. 427, 72 S.E.2d 879. In Erickson v. Starling, supra, Ervin, J., said for the Court: "When a party moves for judgment on the pleadings, he admits these two things for the purpose of his motion, namely: (1) The truth of all well-pleaded facts in the pleading of his adversary, together with all fair inferences to be drawn from such facts; and (2) the untruth of his own allegations in so far as they are controverted by the pleading of his adversary." The findings of fact by the trial judge upon the motion for judgment on the pleadings are entirely inapposite and must be disregarded.

A judgment on the pleadings in favor of a defendant on a plea in bar of the statute of limitations pleaded by defendant is proper when, and only when, all the facts necessary to establish the plea in bar of the statute of limitations are either alleged or admitted in plaintiff's pleadings, construing plaintiff's pleadings liberally in his favor and giving him the benefit of all relevant inferences of fact to be drawn therefrom. McFarland v. News & Observer Publishing Co., 260 N.C. 397, 132 S.E.2d 752; Lockhart v. Lockhart, 223 N.C. 123, *151 25 S.E.2d 465; Currin v. Currin, 219 N.C. 815, 15 S.E.2d 279; Latham v. Latham, 184 N.C. 55, 113 S.E. 623; Ewbank v. Lyman, 170 N.C. 505, 87 S.E. 348.

It is alleged in the complaint and admitted in the answer that the city of Reidsville is a municipal corporation. It is generally held in this State and in the other States that the statute of limitations is no defense in actions by a municipality involving public rights or the exercise of governmental functions. It is also generally held in this State and in the other States, except as provided otherwise by constitutional or statutory provisions, that the statute of limitations may be interposed as a defense to an action by a municipal corporation to enforce private, corporate or proprietary rights. City of Charlotte v. Kavanaugh, 221 N.C. 259, 20 S.E.2d 97; 53 C.J.S. Limitation of Actions § 17(a); 17 McQuillin, Municipal Corporations, § 49.06. See also 34 Am.Jur., Limitation of Actions, § 397.

The construction and maintenance of public streets and of bridges constituting a part thereof are governmental functions of a municipality, and in exercising such governmental functions a municipal corporation is immune from application of the statute of limitations. Bessemer Improvement Co. v. City of Greensboro, 247 N.C. 549, 101 S.E.2d 336; Jenkins v. City of Henderson, 214 N.C. 244, 199 S.E. 37; Pickett v. Carolina & N. W. R. R., 200 N.C. 750, 158 S.E. 398; 53 C.J.S. Limitation of Actions § 17(b).

These facts appear from the fact of the complaint: On 8 October 1957 defendant in connection with developing certain lots and property on Coach Road lying outside the city of Reidsville and only a short distance from the city limits constructed a bridge in connection with the development of said property. It does not appear from the complaint that the defendant constructed this bridge for the use of the public nor that it was maintained by the city nor that it connected any public streets. Defendant was notified that this bridge constructed by him did not comply with the specifications of the city engineer, and he refused to accept it. It is alleged in the complaint that defendant signed, executed and delivered to the city of Reidsville the following letter: "The undersigned, Joseph F. Burton, in consideration of the city's accepting the bridge on Coach Road under protest of the city engineer hereby agrees that he will replace said bridge if it collapses by causes other than wear and tear within a period of 12 years from date." It is also alleged in the complaint that the bridge collapsed on 13 January 1961 and defendant was notified by the city by letter of its city attorney that the bridge had collapsed, and he was notified to make arrangements to replace the bridge according to the city engineer's specifications at once, and that the defendant failed and refused to do so.

The suit in the instant case is an action ex contractu to recover the cost of rebuilding the bridge upon a breach by defendant of his contract with plaintiff to replace it. In our opinion, and we so hold, the present action is an action to enforce private, corporate or proprietary rights, and as such the three-year statute of limitations may be interposed as a defense by defendant.

The plaintiff contends the North Carolina Legislature by Chapter 369, 1949 Session Laws of North Carolina, authorized the governing body of Reidsville to regulate and require minimum standards and specifications for subdivisions of real property, and the establishment, dedication, location and dimensions of proposed public streets or other public way within the corporate limits of such municipality or within one mile outside such city limits, and to provide either grading, paving, curbs, gutters, drainage, public sewer or water facilities, etc., and that in replacing the bridge it exercised a governmental function and is immune *152 from the application of the three-year statute of limitations. This contention is untenable.

Generally, an action for breach of a contract must be brought within three years from the time of the accrual of the cause of action, where the parties are not under a disability, which is the case here. G.S. § 1-15; G.S. § 1-52(1); Thurston Motor Lines, Inc. v. General Motors Corp., 258 N.C. 323, 128 S.E.2d 413; 3 Strong's N.C. Index, Limitation of Actions, § 4. A cause of action generally accrues and the statute of limitations begins to run whenever a party becomes liable to an action, if at such time the demanding party is under no disability. In no event can a statute of limitations begin to run until plaintiff is entitled to institute action. 3 Strong, ibid.

It appears from the face of the complaint that the bridge here collapsed on 13 January 1961, and defendant was notified to replace the bridge at once according to the city engineer's specifications and refused to do so. When defendant failed at once to replace the bridge according to the contract, plaintiff was entitled to institute action. The present action was instituted by the issuance of summons on 4 March 1964. G.S. § 1-14. All the facts necessary to establish the plea in bar of the three-year statute of limitations alleged in the answer are alleged in plaintiff's complaint. Therefore, the lower court was correct in entering judgment upon the pleadings for defendant. The city's contention that its action only accrued when it had replaced the bridge and sent defendant a bill in the amount of the cost of replacing the bridge is untenable. This disposition of this case makes it unnecessary to discuss or consider any of the other defenses interposed by defendant. McFarland v. News & Observer Publishing Co., supra. The judgment of the lower court is

Affirmed.