{
  "id": 8615234,
  "name": "A. W. DRINKWATER v. WESTERN UNION TELEGRAPH COMPANY",
  "name_abbreviation": "Drinkwater v. Western Union Telegraph Co.",
  "decision_date": "1933-02-22",
  "docket_number": "",
  "first_page": "224",
  "last_page": "225",
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      "cite": "204 N.C. 224"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state_regional",
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      "reporter": "N.C.",
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      "category": "reporters:state_regional",
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      "opinion_index": 0
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    {
      "cite": "203 N. C., 257",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "cite": "112 S. E., 32",
      "category": "reporters:state_regional",
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      "opinion_index": 0
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    {
      "cite": "183 N. C., 517",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "cite": "203 N. C., 483",
      "category": "reporters:state",
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    {
      "cite": "83 N. C., 276",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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  "last_updated": "2023-07-14T22:38:28.108315+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "A. W. DRINKWATER v. WESTERN UNION TELEGRAPH COMPANY."
    ],
    "opinions": [
      {
        "text": "Stacy, C. J.,\nafter stating the case: It is provided by C. S., 441, that an action to recover on a contract, obligation or liability arising out of contract, express or implied, except those mentioned in preceding sections, shall be commenced within three years from the date of the accrual of the cause of action. Welfare v. Thompson, 83 N. C., 276. If not brought within this time, upon the plea of the statute by the defendant, such right of action is deemed to be barred. Trust Co. v. Clifton, 203 N. C., 483. High Point v. Clinard, ante, 149.\nThe defendant having pleaded the statute of limitations, the burden was on the plaintiff to show that his suit was commenced within three years from the time of the accrual of the cause of action or that otherwise it was not barred. Rankin v. Oates, 183 N. C., 517, 112 S. E., 32. This has been the prevailing rule with us relative to the burden of proof where the statute of limitations is properly pleaded. Marks v. McLeod, 203 N. C., 257, 165 S. E., 693; Tillery v. Lumber Co., 172 N. C., 296, 90 S. E., 196.\nAdmittedly, the plaintiff\u2019s right of action accrued 20 March, 1928. The present suit was instituted 8 April, 1931. This was too late, unless the plaintiff has otherwise saved himself from the running of the statute. To meet this situation, plaintiff seeks to avail himself of the provisions of C. S., 415, which authorizes a fresh action, after nonsuit, for the same cause, at any time within one year, by showing that within the statutory period suit was commenced in the Recorder\u2019s Court of Dare County, judgment of nonsuit entered therein, and the costs of the original action paid before the commencement of the present suit.\nBut it does not appear that the \u201cnew action\u201d is to enforce the same cause of action intended to be set up in the \u201coriginal action,\u201d as no complaint was filed therein. Loan Co. v. Warren, ante, 50. The identity of the causes may not be shown by parol. Motsinger v. Hauser, 195 N. C., 483, 142 S. E., 589. Hence, judgment of nonsuit should have been entered.\nReversed.",
        "type": "majority",
        "author": "Stacy, C. J.,"
      }
    ],
    "attorneys": [
      "Worth & Horner for plaintiff.",
      "Ehringhaus & Hall for defendant."
    ],
    "corrections": "",
    "head_matter": "A. W. DRINKWATER v. WESTERN UNION TELEGRAPH COMPANY.\n(Filed 22 February, 1933.)\n1. Limitation of Actions E c\u2014\nWhere the statute of limitations is properly pleaded the burden is on plaintiff to show that the action is not barred.\n3. Limitation of Actions B g \u2014 Identity of \u201cnew action\u201d and original action may not be shown by parol.\nParol evidence is not competent to show the identity of a \u201cnew action\u201d commenced after nonsuit and the original action, and where no complaint is filed in the original action, and the statute of limitations is properly pleaded in the \u201cnew action\u201d the \u201cnew action\u201d will be held barred when it is not commenced within the time allowed.\nAppeal by defendant from Moore, Special Judge, at August Special Term, 1932, of Daee.\nCivil action to recover damages for error in transmission of an interstate telegram filed by plaintiff with defendant on 20 March, 1928.\nThis action was instituted 8 April, 1931. The defendant pleaded the three years statute of limitations. C. S., 441. To repel this plea of the statute, the plaintiff offered evidence tending to show that on 9 Eebruary, 1931, he instituted suit against the defendant in the Recorder\u2019s Court of Dare County; that on 17 March, 1931, judgment of nonsuit was entered therein; and that the costs of said action were paid prior to the institution of the present suit. It does not appear that complaint was filed in the action instituted in the Recorder\u2019s Court of Dare County.\nUpon issues joined, there was a verdict and judgment for plaintiff, from which the defendant appeals, assigning errors.\nWorth & Horner for plaintiff.\nEhringhaus & Hall for defendant."
  },
  "file_name": "0224-01",
  "first_page_order": 290,
  "last_page_order": 291
}