Beck v. Lexington Coca Cola Bottling Co, 673.

• Decision Date: 13 December 1940
• Docket Number: No. 673.,673.
• Citation: 5 S.E.2d 855,210 N.C. 570
• Parties: BECK. v. LEXINGTON COCA COLA BOTTLING CO.
• Court: North Carolina Supreme Court

5 S.E.2d 855

210 N.C. 570

BECK.

v.LEXINGTON COCA COLA BOTTLING CO.

No. 673.

Supreme Court of North Carolina.

Dec. 13, 1940.

Appeal from Superior Court, Davidson County; Clement, Judge.

Action to recover damages for injuries resulting from alleged actionable negligence by Mrs. John Beck against Lexington Coco Cola Bottling Company. From an adverse judgment, defendant appeals.

Reversed.

Civil action to recover damages for injuries resulting from alleged actionable negligence.

On former appeal to this Court a new trial was granted on account of the admission of evidence at variance with bill of particulars filed pursuant to order of court. 214 N.C. 566, 567, 199 S.E. 924.

Thereafter, at the August Criminal Term of Superior Court of Davidson County, "upon motion of plaintiff, and for good cause shown", the court entered order permitting plaintiff to amend complaint and bill of particulars so as to conform to the evidence for the admission of which the new trial was granted.

Defendant excepted, and appeals to the Supreme Court and assigns error.

S. E. Raper and Phillips & Bower, all of Lexington, for plaintiff appellee.

Don A. Walser, of Lexington, for defendant appellant.

WINBORNE, Justice.

Defendant challenges the order of the court below permitting amendment of complaint and bill of particulars mainly upon two grounds: (1) That the court did not have authority to permit an amendment of the bill of particulars. (2) That if the court possessed such authority, it could not be exercised at the criminal term of court in question.

With the first, we do not agree. But as to the second, upon the record on this appeal, we think the position is well taken.

(1) The amendment of bills of particulars is governed by the general rules as to amendment of pleadings. The question of allowing such amendment is ordinarily addressed to the discretion of the trial judge (49 C.J. 641; 21 R.C.L. 481), from the exercise of which, nothing else appearing, there is no appeal. (2) But the court can only act in such matters at a time when it has the authority to hear motions in civil actions.

In the case in hand, the August Criminal Term of the Superior Court of Davidson County is authorized to be held for the trial of criminal cases only. The Legislature has so enacted. P.L.1923, Chapter 169, amending P.L.1913, Chapter 196—C.S. § 1443. But the general statute, C.S. § 1444, provides that "at criminal terms of court * * * motions in civil actions may be heard upon due notice * * * ". Mcintosh P. & P. 46; Hatch v. Alamance R. Co, 183 N.C. 617, 112 S.E. 529; Dawkins v. Phillips, 185 N.C. 608, 116 S.E. 723. However, the authority thus given is limited to motions heard after due...