Bailey ex rel. Bailey v. Roberts, 208 N.C. 532 (1935)

Oct. 9, 1935 · Supreme Court of North Carolina

208 N.C. 532

CHARLES BAILEY, by His Next Friend, E. D. BAILEY, v. TOM ROBERTS and Wife, ELIZABETH ROBERTS, and ED ROBERTS.

(Filed 9 October, 1935.)

1. Appeal and Error G c — Appellant held to have abandoned some of exceptions on appeal.

Where defendant takes no exception to the portion of the judgment holding adversely to him on a point of law constituting one of his grounds for demurrer, and on appeal from the judgment overruling the demurrer, fails to discuss this aspect of the case in his brief or cite authorities, Rule 28, defendant will be deemed to have abandoned his contention in respect to this aspect of the case.

3. Pleadings E c—

The trial court has the discretionary power to allow plaintiff to amend his complaint, upon the hearing of defendants’ demurrer thereto, so as to allege that the negligence complained of was the proximate cause of the 'injury. C. S., 547.

Appeal by defendants from Phillips, J., at July Term, 1935, of Mitchell.

Affirmed.

Tbe defendants demurred'to tbe complaint. Tbe demurrer is as follows : “1st. For tbe reason that plaintiff bas not legal capacity to sue. It appears upon tbe face of tbe complaint tbat tbe plaintiff is a minor under tbe age of 21 years, and bis next friend, E. D. Bailey, is a nonresident of tbe State. It does not appear tbat any next friend or guardian bas been appointed in Tennessee, tbe state of tbe residence of tbe plaintiff, and tbat no ancillary guardian or next friend bas been appointed in tbis State. 2d. For tbe reason tbat tbe complaint does not state a cause of action, in tbat no particular negligence is alleged or sufficiently described, and no allegation is made that sucb negligence is tbe proximate cause of any injury wbieb tbe plaintiff alleges be received.”

Tbe court below made tbe following order: "After bearing tbe arguments of counsel for botb plaintiff and defendants, upon tbe demurrer of tbe defendants, tbe court, upon its own motion, made tbe following order: Demurrer of tbe defendants beard and tbe court, upon tbe bearing, in its discretion, allowed tbe plaintiff to amend paragraph nine of tbe complaint so as to allege that tbe negligent acts complained of in tbe preceding paragraphs were tbe proximate cause of tbe injury.”

Tbe court below signed tbe following judgment: “This cause coming-on to be beard before bis Honor, F. D. Phillips, judge presiding at tbe July Term, 1935, of tbe Superior Court of Mitchell County, upon tbe demurrer filed to tbe complaint in this action, and after reading tbe pleadings and argument of tbe counsel, tbe court being of tbe opinion that E. D. Bailey has been properly appointed as tbe next friend, and as sucb is entitled to prosecute this cause on behalf of tbe infant, Charles Bailey; and tbe court being further of tbe opinion that tbe acts of negligence complained of are sufficiently set forth, but in its discretion permitting an amendment as shown by an order made in this cause: Now, therefore, it is ordered, adjudged, and decreed that tbe demurrer be and tbe same is hereby overruled, and tbe defendants allowed tbe statutory time within which to answer; that tbe plaintiff be allowed to amend bis complaint by adding after tbe word 'negligence’ in tbe first line of paragraph nine tbe words 'which negligence was tbe proximate cause of tbe injury.’ F. Donald Phillips, Judge Presiding.”

Tbe defendants excepted and assigned errors and appealed to tbe Supreme Court, as follows: “1st. For that tbe court, in bis discretion upon tbe bearing of tbe demurrer, allowed tbe plaintiff to amend paragraph nine of tbe complaint so as to allege that tbe negligent acts complained of in tbe preceding paragraph were tbe proximate cause of tbe injury. 2d. For that tbe court overruled tbe demurrer and signed tbe judgment of record.”

Alelen P. Honeycutt and Watson & Fonts for plaintiff.

W. C. Berry and Charles Hutchins for defendants.

OlaeicsoN, J.

Tbe first contention made by defendants in tbe demurrer is to tbe effect that tbe plaintiff has no legal capacity to sue. We think this position taken by defendants has been abandoned.

In tbe judgment of tbe court below is tbe following: “The court being of tbe opinion that E. D. Bailey has been properly appointed as tbe next friend and, as sucb, is entitled to prosecute this cause on behalf of tbe infant, Charles Bailey.” The defendants, as to this aspect, filed no exception and assignment of error, nor did they comply with Rule 28 (200 N. C., 831), which, in part, is as follows: “Exceptions in the record not set out in appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him.”

The question involved: Did the court err in permitting the plaintiff to amend his complaint upon the hearing of the demurrer? We think not.

In Hood, Comr., v. Love, 203 N. C., 583 (585), it is said: “In the case of S. v. Bank, 193 N. C., at pp. 527-8, citing numerous authorities, we find: ‘When a case is presented on demurrer we are required by the statute, C. S., 535, to construe the complaint liberally “with a view to substantial justice between the parties,” and in enforcing this provision we have adopted the rule “that if in any portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand, however inartificially it may have been drawn, or however uncertain, defective, and redundant may be its statements. For, contrary to the common-law rule, every reasonable intendment and presumption must be made in favor of the pleader.” ’ ” (Citing numerous authorities.) “The trial court has plenary power, without consent, to amend pleadings, so far as the amendment did not allege substantially a new cause of action. Bridgeman v. Ins. Co., 197 N. C., 599. Allowing all amendments in pleadings is in the sound discretion of the court. Sheppard v. Jackson, 198 N. C., 627. The trial court can, in its discretion, amend pleadings before or after judgment to conform to facts proved. Finch v. R. R., 195 N. C., 190.” N. C. Code (Michie), 1935, see. 547.

We do not discuss the allegations of the complaint, as the matter goes back for a trial on the merits. The allegations as to the liability as joint tort-feasors are sufficient in law. Moses v. Morganton, 192 N. C., 102; Lineberger v. City of Gastonia, 196 N. C., 445; Glazener v. Transit Lines, 196 N. C., 504. The allegations of fact in Ballinger v. Thomas et al., 195 N. C., 517, are different and the case is distinguishable from the present one, but the law therein stated is the same as in the above cited cases. Rountree v. Fountain, 203 N. C., 381, and White v. Charlotte, 207 N. C., 721, are not in point.

For the reasons given, the judgment of the court below is

Affirmed.