{
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  "name": "JEAN LEE TETTERTON, Administratrix of the Estate of ORLANDER B. TETTERTON, Deceased v. LONG MANUFACTURING COMPANY, INC., and REVELS TRACTOR COMPANY, INC.",
  "name_abbreviation": "Tetterton v. Long Manufacturing Co.",
  "decision_date": "1984-04-03",
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  "casebody": {
    "judges": [
      "Judge HILL concurs.",
      "Judge Becton concurs in the result."
    ],
    "parties": [
      "JEAN LEE TETTERTON, Administratrix of the Estate of ORLANDER B. TETTERTON, Deceased v. LONG MANUFACTURING COMPANY, INC., and REVELS TRACTOR COMPANY, INC."
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nThe record shows that all parties entered into the following stipulation:\n(4) For the sole purpose of this appeal, summary judgment on behalf of Long Manufacturing Company, Inc. would only be appropriate if plaintiffs action is barred by the applicable North Carolina statute of limitations.\nThe only assignment of error brought forward and argued in plaintiffs brief is set out in the record as follows:\nI. The Court improperly granted Motion for Summary Judgment by defendant Long Manufacturing Company, Inc., in that the statute upon which defendant\u2019s Motion was based is unconstitutional on its face.\nThe only assignment of error brought forward and argued in defendant Revels\u2019 brief is set out in the record as follows:\nI. The Court improperly granted the Motion for Summary Judgment of the Defendant, Long Manufacturing Company, Inc., in that the Statute relied upon by both the movant and the Court is unconstitutional.\nThe only argument advanced on appeal by appellants is that N.C. Gen. Stat. Sec. 1-50(6) is unconstitutional.\nIn Wilcox v. Highway Comm., 279 N.C. 185, 181 S.E. 2d 435 (1971), the plaintiff appealed from a decision dismissing his suit as barred by the applicable statute of limitations. Plaintiffs argument on appeal was that the statute in question was unconstitutional. In upholding the decision of the trial court, our Supreme Court said, \u201cHaving failed to question the constitutionality of G.S. 136-111 in the trial court, plaintiff may not on appeal attack the statute upon that ground. \u2018It is a well established rule of this Court that it will not decide a constitutional question which was not raised or considered in the court below.\u2019 \u201d Id. at 187, 181 S.E. 2d at 437 (quoting Johnson v. Highway Commission, 259 N.C. 371, 373, 130 S.E. 2d 544, 546 (1963)). See also Midrex Corp. v. Lynch, Sec. of Revenue, 50 N.C. App. 611, 274 S.E. 2d 853, disc. rev. denied and appeal dismissed, 303 N.C. 181, 280 S.E. 2d 453 (1981):\nThe record does not contain anything in the pleadings, evidence, judgment or otherwise, to indicate that any constitutional argument was presented to the trial court. The appellate court will not decide a constitutional question which was not raised or considered in the trial court. . . . The record must affirmatively show that the question was raised and passed upon in the trial court. . . . This is in accord with the decisions of the United States Supreme Court. Edelman v. California, 344 U.S. 357, 97 L.Ed. 387 (1953).\nId. at 618, 274 S.E. 2d at 857-58.\nThe record before us does not affirmatively disclose that the constitutionality of N.C. Gen. Stat. Sec. 1-50(6) was raised, discussed, considered, or passed upon in the trial court. We will not pass upon the question in this case, where it is raised and discussed for the first time on appeal.\nSummary judgment for Long Manufacturing Company will be affirmed, and the cause is remanded to the Superior Court for further proceedings.\nAffirmed.\nJudge HILL concurs.\nJudge Becton concurs in the result.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      },
      {
        "text": "Judge Becton\nconcurring in the result.\nBecause, and only because, I find a clear suggestion in Bolick v. American Barmag Corp., 306 N.C. 364, 293 S.E. 2d 415 (1982) and Lamb v. Wedgewood South Corp., 308 N.C. 419, 302 S.E. 2d 868 (1983) that the applicable statute of repose, N.C. Gen. Stat. Sec. 1-50(6), is constitutional, I concur in the result affirming the trial court. Indeed, because I personally believe G.S. Sec. 1-50(6) is constitutionally infirm on several grounds, I could have more easily concurred in the opinion authored by Judge Hedrick had I been convinced that the \u201cconstitutionality of [the statute] was [not] raised, discussed, considered, or passed upon in the trial court.\u201d Although the judgment itself is silent on the point, the representations made by the parties at oral argument coupled with the stipulations in the record suggest that the trial court considered, and passed upon, the constitutionality of the statute. The \u201cStipulated Facts\u201d show, among other things, that the plaintiffs intestate was killed while working with the tobacco harvester one day after he purchased it and that plaintiffs action was filed more than six years after the initial sale and delivery of the tobacco harvester. The \u201cStipulation of Agreed Record on Appeal\u201d recites, among other things, that \u201cfor the sole purpose of this appeal, summary judgment on behalf of Long Manufacturing Company, Inc., would only be appropriate if plaintiffs action is barred by the applicable North Carolina statute of limitations.\u201d\nFor the reasons set forth above, I concur in the result.",
        "type": "concurrence",
        "author": "Judge Becton"
      }
    ],
    "attorneys": [
      "Gaylord, Singleton, McNally & Strickland, by L. W. Gaylord, Jr., and Vernon G. Snyder, III, for plaintiff, appellant.",
      "Young, Moore, Henderson & Alvis, P.A., by John E. Al-dridge, Jr., and Robert C. Paschal, for defendant Revels Tractor Company, Inc., appellant.",
      "Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, by Ronald C. Dilthey and Patricia L. Holland, for defendant Long Manufacturing Company, Inc., appellee."
    ],
    "corrections": "",
    "head_matter": "JEAN LEE TETTERTON, Administratrix of the Estate of ORLANDER B. TETTERTON, Deceased v. LONG MANUFACTURING COMPANY, INC., and REVELS TRACTOR COMPANY, INC.\nNo. 833SC476\n(Filed 3 April 1984)\nAppeal and Error 8 3\u2014 review of constitutional question\nThe appellate court will not pass upon the constitutionality of a statute where the record does not affirmatively disclose that the constitutionality of the statute was raised, discussed, considered, or passed upon in the trial court.\nJudge Becton concurring in the result.\nAppeal by plaintiff and defendant Revels Tractor Company, Inc., from Reid, Judge. Judgment entered 23 February 1983 in Superior Court, Pitt County. Heard in the Court of Appeals 13 March 1984.\nThis is a civil action wherein plaintiff seeks to recover damages for the wrongful death of her intestate, Orlander B. Tet-terton, resulting from the alleged negligence of defendants. The record before us discloses the following:\nPlaintiff filed her complaint on 6 October 1981, alleging that her intestate was killed on 8 July 1981 as a proximate result of the negligence of defendants. Defendant Long Manufacturing manufactured the tobacco bulk harvester that caused the death of Mr. Tetterton, and defendant Revels Tractor Company sold the harvester to Mr. Tetterton. Defendant Long Manufacturing filed its answer on 25 November 1981, alleging among other things that plaintiffs claim was barred by the applicable statute of limitations, set out in N.C. Gen. Stat. Sec. 1-50(6). On 3 December 1981 defendant Revels Tractor Company filed its answer denying any liability to plaintiff and filed crossclaims against defendant Long seeking contribution and indemnity. On 30 November 1982 defendant Long filed a motion for summary judgment, which it supported with pleadings, answers to interrogatories, and affidavits. On 23 February 1983 the trial court entered summary judgment for defendant Long on plaintiffs claims and defendant Revels\u2019 crossclaims. Plaintiff and defendant Revels appealed.\nGaylord, Singleton, McNally & Strickland, by L. W. Gaylord, Jr., and Vernon G. Snyder, III, for plaintiff, appellant.\nYoung, Moore, Henderson & Alvis, P.A., by John E. Al-dridge, Jr., and Robert C. Paschal, for defendant Revels Tractor Company, Inc., appellant.\nPatterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, by Ronald C. Dilthey and Patricia L. Holland, for defendant Long Manufacturing Company, Inc., appellee."
  },
  "file_name": "0628-01",
  "first_page_order": 660,
  "last_page_order": 663
}