{
  "id": 8556014,
  "name": "PENELOPE F. TRAVIS, Administratrix of the Estate of DAVID MICHAEL TRAVIS v. JAMES GEORGE McLAUGHLIN and RYDER TRUCK RENTAL, INC.",
  "name_abbreviation": "Travis v. McLaughlin",
  "decision_date": "1976-05-05",
  "docket_number": "No. 7528SC995",
  "first_page": "389",
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  "last_updated": "2023-07-14T16:29:22.308082+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Britt and Parker concur."
    ],
    "parties": [
      "PENELOPE F. TRAVIS, Administratrix of the Estate of DAVID MICHAEL TRAVIS v. JAMES GEORGE McLAUGHLIN and RYDER TRUCK RENTAL, INC."
    ],
    "opinions": [
      {
        "text": "CLARK, Judge.\nPlaintiff's first argument is that the statute of limitations is an affirmative defense which must be pleaded in an answer and which may not ordinarily be raised by a Rule 12 motion. Plaintiff cites Iredell County v. Crawford, 262 N.C. 720, 138 S.E. 2d 539 (1964), and several other cases as support for her position. We note, however, that these cases were decided before 1967 and before the effective date of the Rules of Civil Procedure in North Carolina.\nIn Teague v. Motor Co., 14 N.C. App. 736, 189 S.E. 2d 671 (1972), the court was presented with the question of whether plaintiff can file a complaint against the wrong party and then after the statute of limitations has run, attempt to bring the correct party into the action by a purported amendment of the complaint. Defendant appellee raised the defense of the statute of limitations in a motion to dismiss under Rule 12 on the grounds that defendant was not served with process within two years after the death of plaintiff\u2019s intestate and the claim was barred by G.S. 1-53. The motion to dismiss was granted in the trial court and affirmed by this Court, which stated: \u201cDefense of the Statute of Limitations was properly raised by a Motion to Dismiss for failure to state a claim for relief. 1A Barron and Holzoff, \u00a7 281; 2A Moore\u2019s Federal Practice, \u00a7 12.09; ...\u201d 14 N.C. App. at 740.\nUnder Rule 12(b) the motion to dismiss, for whatever grounds asserted, may be made at the option of the pleader, either by motion before pleading or in the responsive pleading demanded by the adversary pleading. In the present case the defendant properly exercised his option to assert the statute of limitations in a Rule 12 motion.\nPlaintiff assigns as error the granting of defendant\u2019s motion to dismiss on the ground that her claim was barred by the two-year statute of limitations, G.S. 1-53.\nG.S. 1-21 tolls the statute of limitations because of the absence of a defendant from the State at the time the cause of action accrued, or if the defendant resides out of the State or remains continuously absent therefrom for one year or more after such cause of action accrues. G.S. 1-105 and G.S. 1-105.1, providing for substitute service of a nonresident motorist by service upon the Commissioner of Motor Vehicles, are not in conflict with and do not repeal G.S. 1-21, even though there is no need for a tolling statute when a nonresident defendant is amendable to process. This Court so held in a recent decision which was filed while the present case was pending appeal, Duke University v. Chestnut, 28 N.C. App. 568, 221 S.E. 2d 895 (1976).\nThe order dismissing the plaintiff\u2019s claim is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.\nReversed and remanded.\nJudges Britt and Parker concur.",
        "type": "majority",
        "author": "CLARK, Judge."
      }
    ],
    "attorneys": [
      "Morris, Golding, Blue and Phillips by William C. Morris, Jr., for plaintiff.",
      "Van Winkle, Buck, Wall, Starnes, Hyde and Davis, P.A., by O. E. Starnes, Jr., for defendant."
    ],
    "corrections": "",
    "head_matter": "PENELOPE F. TRAVIS, Administratrix of the Estate of DAVID MICHAEL TRAVIS v. JAMES GEORGE McLAUGHLIN and RYDER TRUCK RENTAL, INC.\nNo. 7528SC995\n(Filed 5 May 1976)\n1. Eules of Civil Procedure \u00a7 12\u2014 motion to dismiss \u2014 method of making\nUnder G.S. 1A-1, Eule 12(b) the motion to dismiss, for whatever grounds asserted, may be made at the option of the pleader, either by motion before pleading or in the responsive pleading demanded by the adversary pleading; therefore, defendant in this action properly exercised his option to assert the statute of limitations in a Eule 12 motion.\n2. Limitation of Actions \u00a7 10\u2014 defendant absent from State for more than one year \u2014 statute of limitations tolled\nThe trial court in a wrongful death action erred in granting defendant\u2019s motion to dismiss on the ground that plaintiff\u2019s claim was barred by the two-year statute of limitations, G.S. 1-53, since the statute of limitations was tolled, pursuant to G.S. 1-21, by defendant\u2019s absence from the State for more than one year after the cause of action accrued.\nAppeal by plaintiff from Martin (Harry C.), Judge. Order entered 10 October 1975, Superior Court, Buncombe County. Heard in the Court of Appeals 18 March 1976.\nOn 8 August 1972 plaintiff\u2019s intestate was killed when the motorcycle which he was driving collided with a truck driven by James George McLaughlin. A wrongful death action was filed 14 December 1973 and summons was issued. An associate in the law firm of plaintiff\u2019s counsel discovered that defendant had left the Yancey County area and left no forwarding address.\nOn 6 May 1975 plaintiff had issued an alias and pluries summons and sent it with a copy of the complaint to the Sheriff of Wake County for service upon the Commissioner of Motor Vehicles. A registered letter sent to defendant\u2019s last known address in Yancey County was returned to the Commissioner on 27 May 1975 marked, \u201cReturned to Sender,\u201d \u201cMoved, No Address (gone over 2 years).\u201d\nOn 29 May 1975 a communication from the California Department of Motor Vehicles revealed that defendant McLaughlin had been issued a driver\u2019s license on 25 January 1974, and his address was given as 775 Belden Street, Monterey, California.\nOn 24 September 1975 defendant moved for dismissal pursuant to Rule 12 on the grounds that he had not been served with process within the period allowed by the statute of limitations. By an order entered 10 October 1975 the court granted this motion, and plaintiff appeals from that order.\nMorris, Golding, Blue and Phillips by William C. Morris, Jr., for plaintiff.\nVan Winkle, Buck, Wall, Starnes, Hyde and Davis, P.A., by O. E. Starnes, Jr., for defendant."
  },
  "file_name": "0389-01",
  "first_page_order": 421,
  "last_page_order": 423
}
