Jones v. Vanstory

• Citation: 157 S.E. 867,200 N.C. 582
• Decision Date: 08 April 1931
• Docket Number: 403.
• Parties: JONES v. VANSTORY et al.
• Court: United States State Supreme Court of North Carolina

157 S.E. 867

200 N.C. 582

JONES v. VANSTORY et al.

No. 403.

Supreme Court of North Carolina

April 8, 1931

Appeal from Superior Court, Guilford County; Schenck, Judge.

Action by Wayland S. Jones against C. M. Vanstory, the Masonic & Eastern Star Home, Inc., and others. From a judgment for plaintiff, defendant corporation appeals.

New trial.

Amendment substantially changing cause of action does not lie.

On or about September 9, 1929, the plaintiff issued summonses to various counties for C. M. Vanstory, J. E. Vanhorn, Mrs. Emma B. Siler, W. C. Wicker, Lee A. Folger, and others, who were denominated in the summons ""Trustees" of Masonic & Eastern Star Home. The plaintiff filed a complaint alleging that his father, James W. Jones, was the holder of a policy of life insurance in the sum of $4,000; that the said James W. Jones was desirous of becoming an inmate of the Masonic & Eastern Star Home; and that in order to have his father cared for by said home, the plaintiff, who was named beneficiary in said policy of life insurance, agreed that the policy should be changed so that the Masonic & Eastern Star Home should become beneficiary of said policy to an amount equal to two-thirds of said insurance, and that the plaintiff was to receive one-third of said insurance.

In consequence of this agreement the beneficiary was changed and the plaintiff's father was admitted into the institution and remained therein until his death on or about September 1 1926. Thereafter, on or about September 13, 1926, the insurance company paid to the Masonic & Eastern Star Home the sum of $4,004.80.

Acting upon the agreement, plaintiff made demand upon the trustees of the Home for one-third of said sum, to-wit, $1,334.70, and upon refusal to recognize his claim, instituted the present action. The individual defendants denominated ""Trustees" in the summons and complaint filed a petition for a change of venue from Forsyth to Guilford county. In the petition for removal it was alleged that the Masonic & Eastern Star Home was a North Carolina corporation and that the defendants named in the summons were not trustees but were directors of said corporation. Thereupon on October 12, 1929, the plaintiff made a motion to amend his complaint and all proceedings filed in the cause so as to make the Masonic & Eastern Star Home, Inc., a party defendant. The motion was allowed, and the order of removal was also allowed. Thereafter the plaintiff filed an amended complaint seeking to recover from the corporation. The alleged ""Trustees" filed an answer denying the allegations of the complaint, and the corporation filed an answer denying the allegations of the complaint, and also pleaded the three-year statute of limitation (C. S. § 441). When the cause came on for trial, the plaintiff took a voluntary nonsuit as to all defendants except the Masonic & Eastern Star Home of North Carolina, Inc.

The issues were as follows:

1. "Is the action of the plaintiff, Wayland S. Jones, barred by the statute of limitations, as alleged in the answer?"

2. "Is the plaintiff, Wayland S. Jones, entitled to recover of the defendant, Masonic & Eastern Star Home of North Carolina, Inc., one-third of the amount collected on the policy, less amount of premiums, to-wit, $1,302.08, as alleged in the complaint?

The jury answered the first issue, "No," and the second issue, "Yes."

From judgment upon the verdict, the defendant corporation appealed.

King, Sapp & King, of Greensboro, for appellant.

J. Harold McKeithen and Ingle & Rucker, all of Winston-Salem, for appellee.

BROGDEN J.

If certain individuals are sued as trustees, and thereafter, upon motion, a corporation in which said individuals are directors is duly made a party to the suit, does the making of such corporation a party constitute an amendment or a new action?

The Revised Code of 1854 provided for amendments to process or pleadings "for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered thereon." This original provision has gradually been broadened into C. S. § 547. This court considered the nature of an amendment in Camlin v. Barnes, 50 N.C. 296. The court said: "So, if this be an amendment, the Court has power to make it. But it is not an amendment. The effect of the order is to make, and not to amend, this process. We put our decision on the ground, that whenever it is necessary to issue new process to bring in a new defendant, the operation amounts to something which exceeds an amendment, in the broadest signification in which the word has ever been used." C. S. § 475 provides that a civil action shall be commenced by the issuance of a summons. The summons against the corporate defendant was issued -- day of December, 1929 and served on December 6, 1929. If the corporation was...