Wheeler v. Wheeler
| Decision Date | 17 March 1954 |
| Docket Number | No. 234,234 |
| Citation | 80 S.E.2d 755,239 N.C. 646 |
| Parties | WHEELER, v. WHEELER et ux. |
| Court | North Carolina Supreme Court |
Hayes & Davis and Moore & Gambill, North Wilkesboro, for plaintiff appellee.
Trivette, Holshouser & Mitchell, North Wilkesboro, for defendant appellants.
Unquestionably the trial judge may permit a litigant to amend his pleadings either before or after verdict and judgment so that they will conform to the evidence offered, provided the amendment does not change substantially the claim or defense. G.S. § 1-163; Bank of Ashe v. Sturgill, 223 N.C. 825, 28 S.E.2d 511; Perkins v. Langdon, 233 N.C. 240, 63 S.E.2d 565; McDaniel v. Leggett, 224 N.C. 806, 32 S.E.2d 602; Waters v. Waters, 125 N.C. 590, 34 S.E. 548; Hicks v. Nivens, 210 N.C. 44, 185 S.E. 469.
Independent of the statute, the right to permit amendments to the pleadings is an inherent discretionary power of the courts. Gilchrist v. Kitchen, 86 N.C. 20; Bank v. Sherman (Hickling v. Sherman) 101 U.S. 403, 25 L.Ed. 866.
This rule is subject to the limitation that the amendment must not, in effect, add a new cause of action or change the subject matter of the original action. Lefler v. C. W. Lane & Co., 170 N.C. 181, 86 S.E. 1022; City of Wilmington v. Board of Education, 210 N.C. 197, 185 S.E. 767; Nassaney v. Culler, 224 N.C. 323, 30 S.E.2d 226; Ely v. Early, 94 N.C. 1.
While, in his second cause of action, plaintiff alleges that defendants agreed to convey to him the small residence and the land on which it was situated, he testified that they agreed to give him notes for the amount expended by him in erecting the building. The exception to the order authorizing plaintiff to amend the first paragraph of his second cause of action so as to make his allegation conform to his proof is without merit.
The exception to the denial of the motion of defendants to dismiss as in case of nonsuit is likewise untenable. Plaintiff offered evidence upon each of his causes of action sufficient to require to submission of issues to a jury.
The issues to be submitted to a jury are those raised by the pleadings and supported by the evidence. G.S. § 1-200; Carland v. Allison, 221 N.C. 120, 19 S.E.2d 245; King v. Coley, 229 N.C. 258, 49 S.E.2d 648.
G.S. § 1-200, as construed and applied by this Court, is mandatory. It is the duty of the judge, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising on the pleadings. Griffin v. United Service Life Insurance Co., 225 N.C. 684, 36 S.E.2d 225; and cases cited; Greene v. Greene, 217 N.C. 649, 9 S.E.2d 413; Davidson v. Gifford, 100 N.C. 18, 6 S.E. 718; Falkner v. Pilcher, 137 N.C. 449, 49 S.E. 945.
' Gordon v. Collett, (Gordon v. Avery) 102 N.C. 532, 9 S.E. 486, 488.
The issues submitted by the court below not only undertake to consolidate the issues raised on both causes of action, but they fail to comprehend all the issues raised by the pleadings.
The plaintiff alleges two causes of action arising out of two separate and distinct transactions. Yet the issues submitted have no substantial relation to plaintiff's first cause of action which is bottomed on an alleged breach of contract to maintain and support. They are instead in accord with the allegations of defendants in respect to the first transaction. Hence it would seem that the court, in adopting the issues actually submitted, undertook to and did decide that the original transaction was not in the form of a contract for support and maintenance, but was, as contended by defendants, a mere loan. As plaintiff offered evidence tending to support his allegations, that was an issue for the jury to decide.
Even so, plaintiff did not appeal. And as the issues, insofar as they relate to the plaintiff's first cause of action, are in accord with the contentions of the defendants in respect to the purchase of the land, they, perhaps have no just cause to complain. We do not therefore, bottom our decision on the failure of the trial judge to submit issues sufficient in form and substance to settle the whole controversy. We merely take notice of that part of the record for the reason that it emphasizes the prejudicial nature of the excerpts from the charge to which defendants do except.
The court instructed the jury on the first issues in part as follows:
'* * * you will answer that issue in such amount as the plaintiff has satisfied you from the...
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