Cranford v. Helms , 53 N.C. App. 337 ( 1981 )

ARNOLD, Judge.

Having abandoned her appeal with regard to defendant Ronald Dean Helms, plaintiff assigns as error the entry of summary judgment in favor of defendant Johnnie Clifford Helms, hereinafter referred to as the defendant. This assignment of error presents for this Court the question of whether the three-year statute of limitations had expired at the commencement of plaintiff’s action based on agency.

Plaintiff’s second complaint, filed in September 1979, clearly alleged that she was proceeding against the defendant on the theory that his agent’s negligence was imputed to him. That complaint, however, was filed some seven years after the accident in question and, unless it is determined that it “relates back” to plaintiffs first amended complaint, it is barred by the three-year statute. G.S. 1A-1, Rule 15(c) provides:

A claim asserted in an amended pleading is deemed to have been interposed at the time the claim in the original pleading was interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.

Was the amendment to plaintiffs complaint in which plaintiff alleged that Ronald Dean Helms, “if not the owner, was operating said automobile with the knowledge, permission and consent of the owner,” the defendant herein, sufficient to give the defendant notice of the occurrences giving rise to the agency issue alleged in the second complaint? If so, the second complaint “relates back” to the first complaint, and the defense of the statute of limitations is defeated. If not, the second complaint merely alleges an action which is barred by the three-year statute.

Under North Carolina law prior to the enactment of the Rules of Civil Procedure, complaints which failed to allege that the driver of the automobile was acting as agent of the owner of the automobile were held fatally deficient as to the owner. Beasley v. Williams, 260 N.C. 561, 133 S.E. 2d 227 (1963); Parker v. Underwood, 239 N.C. 308, 79 S.E. 2d 765 (1954). This rule persisted notwithstanding G.S. 20-71.1 which allowed proof of ownership to be prima facie evidence that a motor vehicle was being used at the time of an accident with the authority and knowledge of the owner. Parker v. Underwood, supra.

In the case of Nolan v. Boulware, 21 N.C. App. 347, 204 S.E. 2d 701, cert. denied, 285 N.C. 590, 206 S.E. 2d 863 (1974), this Court noted the effect of the Rules of Civil Procedure on this strict rule requiring allegation of agency. Since a complaint need contain only a “short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved,” G.S. 1A-1, Rule 8(a)(1), the court held that the complaints alleging that the negligent acts of one defendant were “imputed to the defendant Boulware” were sufficient to give Boulware notice that plaintiffs intended to prove facts to establish Boulware’s legal responsibility for the negligent acts of her co-defendant.

After reviewing recent case law as well as plaintiff’s first complaint, as amended, against defendant, we conclude that the complaint fails to give defendant sufficient notice of the transactions or occurrences giving rise to the alleged liability. In the first complaint, plaintiff alleged that the defendant was driving the automobile and that it was defendant’s negligence that caused the accident resulting in her injuries. As amended, that complaint alternatively named Ronald Dean Helms as either the owner or operator of the vehicle, and it alleged that, whoever was driving the car was doing so with “the knowledge, permission and consent of the owner,” whichever one that was. There was no allegation that Ronald Dean Helms was acting as defendant’s agent; nor any allegation that the negligent acts of Ronald Helms were imputed to his father, as was the case in Boulware. Moreover, there was no allegation that the automobile he was using was a family purpose vehicle. Proof that one owns a vehicle operated in a negligent manner and gives another permission to drive it, causing injury to a third party, is not sufficient to impose liability on the owner. Beasley v. Williams, supra. It follows that the mere allegation that one owns an automobile which was operated in a negligent manner is insufficient to give defendant notice of the transaction or occurrence for which he is supposedly liable.

The first complaint as amended falls far short even of the notice-pleading standard set forth in Boulware, supra. It did not put defendant on notice of the transactions or occurrences potentially giving rise to his liability. The second complaint, filed seven years after the accident in question, cannot, therefore, relate back to the first complaint. Since the second complaint was barred by the statute of limitations, summary judgment for the defendant was properly granted.

Affirmed.

Judges Vaughn and Becton concur.