Carolina Power & Light Co v. Bowman

• Decision Date: 14 December 1949
• Docket Number: No. 673.,673.
• Citation: 56 S.E.2d 602,231 N.C. 332
• Court: North Carolina Supreme Court
• Parties: CAROLINA POWER & LIGHT CO. v. BOWMAN et al.

56 S.E.2d 602

231 N.C. 332

CAROLINA POWER & LIGHT CO.

v.BOWMAN et al.

No. 673.

Supreme Court of North Carolina.

Dec. 14, 1949.

The Carolina Power & Light Company brought suit against William Murphy Bowman and others for injunctive relief.

The Superior Court, Robeson County, John J. Burney, J., denied plaintiffs motion to strike amendment of defendants' answer, and the plaintiff appealed.

The Supreme Court, Barnhill, J., held that whether amendment should be allowed rested in the discretion of the trial court and was not subject to review by Supreme Court on appeal and affirmed the judgment.

Civil action for injunctive relief, here on former appeal. Carolina Power & Light Co. v. Bowman, 229 N.C. 682, 51 S.E.26 191.

After the opinion of this Court on the formed appeal was certified down, the court below, on motion of defendants, entered an order permitting defendants to file an amendment to their answer. Plaintiff excepted. Thereupon, defendants filed the proposed amendment in which they plead certain facts by way of estoppel. The plaintiff moved (1) to strike the amendment "for that the same is not amendatory of but is inconsistent with the original Answer and Amendments thereto, and for that all matters alleged in said Amendment to the Complaint are res adjudicata;" and (2) to strike certain portions of paragraphs 11, 12, and 13 thereof for that the facts alleged are immaterial, redundant, and repetitious. The motion was denied and plaintiff appealed.

A. Y. Arledge, Raleigh, and Varser, McIntyre & Henry, Lumberton, for plaintiff appellant.

McKinnon & McKinnon and Malcolm B. Seawell and McLean & Stacy, Lumberton, for defendant appellees.

BARNHILL, Justice.

The exception to the order permitting defendants to amend their answer is without merit. Whether the amendment should be allowed rested within the sound discretion of the court below. G.S. § 1-163; Bank of Ashe v. Sturgill, 223 N.C. 825, 28 S.E.2d 511; Hughes v. Oliver, 228 N.C. 680, 47 S.E.2d 6; Hatcher v. Williams, 225 N.C. 112, 33 S.E.2d 617. Its ruling thereon is not subject to review on appeal except for palpable abuse. Gordon v. Pintsch Gas Co., 178 N.C. 435, 100 S.E. 878; Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789; Osborne v. Town of Canton, 219 N.C. 139, 13 S.E.2d 265; Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466; Pharr v. Pharr, 223 N.C. 115, 25 S.E.2d 471. The defendants are not required to be consistent. They may interpose various and contradictory defenses. Nor has anything been adjudicated herein other than that, upon the evidence appearing in the record on the former appeal, the plaintiff is entitled to a peremptory instruction. Carolina Power & Light Co. v. Bowman, 229 N.C. 682, 51 S.E.2d 191.

This Court will not at this time overrule the judgment of the court below in respect to particular allegations contained in the amendment. Plaintiff seeks, in effect, to have us say that the facts alleged are not sufficient to support the plea of estoppel and are therefore irrelevant and immaterial. But it is not our province to predetermine the competency of evidence or to chart the course of the trial in the court below. Parker v. Duke University, 230 N.C. 656, 55 S.E.2d 189, and cases cited; Terry v. Capital Ice & Coal Co, 231 N.C. 103, 55 S.E.2d 926. Whether evidence of the facts alleged is competent in support of the plea must be determined, in the first instance, when and if it is tendered at the hearing. Terry v. Capital Ice & Coal Co., supra. Its relevancy may best be determined at that time.

In an appeal from an interlocutory order which does not destroy, or impair,...