Hooper v. Glenn

EkviN, J. The defendant reserved an exception to the refusal of the trial judge to permit him to amend his answer so as to set up a new plea of contributory negligence in these words, namely: “The defendant, Robert H. Glenn denies that he had used or was under the influence of intoxicants at the time of the accident, but avers that if he was intoxicated and if he and the plaintiff, D. W. Hooper, had been drinking intoxicants together, and the use of intoxicants by defendant Glenn was one of the proximate causes of the accident resulting in injuries to the plaintiff, then the plaintiff himself was guilty of contributory negligence in that he used intoxicants with the defendant Glenn, that he knew that the defendant Glenn had been drinking intoxicants and was under the influence thereof, hut nevertheless the plaintiff continued to ride in the truck with the defendant Glenn, and that such conduct on the part of the plaintiff constituted contributory negligence, and, therefore, this defendant pleads the contributory negligence of the plaintiff, D. W. Hooper, in this respect in addition to the other facts pleaded as contributory negligence in his answer to the amended complaint in bar of the plaintiff’s recovery in this action.” The court expressly stated that its ruling denying the defendant leave to file the amendment to the answer was made in the exercise of its discretion. This being so, the defendant’s exception is untenable. It is a firmly established rule of practice in this jurisdiction that an application *573 for leave to amend a pleading after time for filing bas expired, is a matter addressed to tbe sound discretion of tbe trial court, and that a ruling thereon is not subject to review on appeal unless tbe circumstances affirmatively disclose a manifest abuse by tbe court of its discretionary power. G.S. 1-163; Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789. Tbe record presently presented does not justify an inference tbat tbe court abused its discretion in tbe premises. While some of tbe witnesses called to tbe stand by counsel for tbe defense testified tbat tbe plaintiff and tbe defendant bore tbe odors of liquor when removed from tbe wreckage of tbe truck after tbe collision, tbe plaintiff’s cause of action was not predicated, either in whole or in part, upon any allegation or evidence tbat the defendant lost control of tbe truck by reason of intoxication. Besides, tbe defendant testified in bis own behalf with unvarying positiveness tbat be was completely sober at the place and time named in tbe pleadings. Moreover, tbe defendant did not ask for leave to amend until all tbe evidence was in, and both sides bad rested. Tbe defendant assigns as error tbe refusal of tbe court to submit to tbe jury this issue: “Was tbe plaintiff, Daniel W. Hooper, guilty of contributory negligence as one of tbe proximate causes of bis injuries, as alleged in tbe answer of Eobert H. Glenn?” Tbe answer alleged on this phase of tbe case “tbat tbe accident . . . was due to and proximately arose on account of tbe careless and negligent conduct of tbe plaintiff himself in tbat tbe plaintiff bad been drinking intoxicating liquors and became excited and interfered with tbe operation of tbe truck in trying to turn tbe truck to tbe right, and this defendant pleads the contributory negligence of tbe plaintiff in bar of bis right to recover in this action.” No evidence was adduced at tbe trial tending to show any attempt on tbe part of tbe plaintiff to interfere with tbe operation of the truck outside of tbe testimony of tbe defendant to tbe effect tbat tbe plaintiff made this exclamation just as tbe other automobile was about to collide bead-on with tbe truck: “Look out, look out, Eob! Tbat car is going to bit you.” Tbe defendant testified, however, tbat this declaration “didn’t have no effect on me.” Thus, it appears tbat there was no evidence to support tbe plea of contributory negligence set out in tbe answer, and tbat tbe court rightly declined to submit to tbe jury tbe issue in question. Kjellander v. Baking Co., 197 N.C. 206, 148 S.E. 40. Tbe defendant assigns three portions of tbe charge as error. Standing alone, these excerpts seem somewhat wanting in dexterity of statement. But when they are placed in their context and tbe instructions of tbe court are read as a whole, it appears tbat tbe charge was free from prejudicial error. Wyatt v. Coach Co., 229 N.C. 340, 49 S.E. 2d 650. Since no reversible error bas been shown, the verdict and judgment will be sustained. No error.