Rudder v. Lawton

WEBB, Judge. By this appeal, defendant seeks appellate review of the trial court’s orders granting plaintiffs motion in limine and awarding a partial new trial on the issue of damages. Defendant has no immediate right to appeal from these interlocutory orders. Although the orders may affect a substantial right of the defendant, this possibility does not make the orders appealable unless they “will work injury to . . . [him] if not corrected before an appeal from the final judgment.” Industries, Inc. v. Insurance Co., 296 N.C. 486, 491, 251 S.E. 2d 443, 447 (1979). This is not such a case. Nevertheless, in our discretion we have chosen to treat this appeal as a petition for writ of certiorari under Appellate Rule 21 and have decided to allow it. In his first assignment of error defendant contends the court erred in granting plaintiffs motion in limine. From the record, it appears that the trial judge allowed this motion because he believed evidence of consumption of alcohol was at variance with the language in defendant’s answer to the complaint. The answer generally alleged that plaintiff was contributorily negligent because he voluntarily rode in the vehicle with defendant. Under *280 our system of “notice pleading,” this answer, standing alone, may have been sufficient to apprise plaintiff of defendant’s specific defense concerning consumption of alcohol. Assuming, arguendo, that the Answer was adequate, we believe that defendant’s subsequent actions effectively negated notice of this defense. In April 1981, defendant objected to plaintiffs interrogatory No. 9 which asked whether defendant was under the influence of alcohol or drugs. Several months later, defendant answered the following interrogatory: 11. Reference is made to Paragraph 6 of your [A]nswer [pleading affirmative defense of contributory negligence] .... Please state in detail the way and manner in which the said vehicle was being operated in which you contend required remonstrance or protest on the part of the plaintiff. The way and manner Defendant refers to in his Answer is the same way and manner Plaintiff alleges Defendant was negligent in . . . his Complaint, which is again denied. It is important to note that the Complaint, however, did not allege, as a basis for negligence, that defendant had been driving under the influence of alcohol. Hence, the answer to this Interrogatory was totally misleading if defendant intended to rely on an affirmative defense of contributory negligence based on consumption of alcohol. Furthermore, in answering a question from that same set of interrogatories, the defendant also denied that he was “under any type of impairment or physical disability” prior to the collision. Although the statute of limitations had run on 5 August 1981 on any possible charge against defendant for driving under the influence of alcohol, the defendant waited until his November trial to file a supplemental answer to interrogatory No. 9. At that time, he admitted that he was under the influence of alcohol. The defendant further delayed moving to amend his answer to the complaint until evidence had been presented at trial. His proposed amendment clearly alleged that plaintiff was contributorily negligent because he voluntarily rode with defendant, knowing or having reason to know defendant was under the influence of alcohol. *281 Under all these circumstances, it was not unreasonable for plaintiff to assume that defendant did not intend to present evidence of plaintiffs knowledge that defendant was under the influence of alcohol. Plaintiff made diligent efforts to obtain discovery concerning defendant’s defense. The defendant’s misleading answers to plaintiffs interrogatories, his dilatory filing of the supplemental answer to plaintiffs interrogatory No. 9, and his late motion to amend his answer had the effect of surprising the plaintiff and leaving him unprepared to rebut defendant’s affirmative defense. For these reasons, we hold it was not error for the court to grant plaintiffs motion in limine. Defendant also argues under his first assignment of error that the court erred in denying his motion to amend his answer. A motion to amend, made after the beginning of trial, is addressed to the sound discretion of the trial judge. Moore v. Insurance Co., 266 N.C. 440, 146 S.E. 2d 492 (1966). Unless there is an apparent or declared reason for denying a motion to amend a pleading, leave to amend under Rule 15(a) “shall be freely given when justice so requires.” Public Relations, Inc. v. Enterprises, Inc., 36 N.C. App. 673, 678, 245 S.E. 2d 782, 785 (1978). In excluding evidence of consumption of alcohol in the present case, the court specifically stated, “[T]he reason that I am not letting this in is the fact that you waited until this morning to open up this can of worms when you had over 100 days to open it up.” Clearly, the court’s reason for denying defendant’s motion to amend was defendant’s undue delay in making that motion after the statute of limitations had run on 5 August 1981. No abuse of discretion has been shown. In defendant’s second assignment of error he argues that the court abused its discretion in granting plaintiff s motion for a partial new trial on the issue of damages. Defendant submits that the jury’s verdict of $3,200 was “clearly within the reasonable range of possible verdicts” based on the fact that plaintiff presented evidence that he had $2,298.50 in medical expenses and had lost wages of $900.00. The use of a rigid test to measure whether a verdict is “ ‘clearly within the maximum limits of a reasonable range’ ” was rejected by the court in Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 485, 290 S.E. 2d 599, 604 (1982), quoting the Court of Appeals’ opinion which it reversed at 53 N.C. App. 409, 414, 281 S.E. 2d 166, 171 (1981). In Worthington, *282 the court stated that a Rule 59 discretionary order should not be disturbed on appeal unless it “probably amounted to a substantial miscarriage of justice.” Worthington, supra, at 487, 290 S.E. 2d at 605. We have reviewed the evidence and find no such abuse of discretion. Affirmed. Judges BECTON and PHILLIPS concur.