Dixon v. Briley

117 S.E.2d 747 (1961)

253 N.C. 807

Albert DIXON, Administrator of James B. Dixon, Deceased, v. William F. BRILEY, Administrator of Otha Lee Dixon, Deceased, and Southern Railway Company, a Corporation.

No. 737.

Supreme Court of North Carolina.

January 20, 1961.

*748 William T. Joyner, Raleigh, Long, Ridge, Harris & Walker, Burlington, for defendant Southern Railway Co.

No counsel contra.

PER CURIAM.

We assume the court below was of the opinion that the allegations set out in the proposed amendment were insufficient to constitute a good and sufficient plea that the car involved in the collision was a family purpose car and was being so used at the time of the accident with the knowledge and consent of the plaintiff, the owner thereof.

It is true the allegations are not explicit as to whether or not the sons of the plaintiff, James B. Dixon and Otha Lee Dixon, were actually living with the plaintiff as members of his household at the time of the accident. Even so, we think the inference to that effect is sufficiently clear to permit proof with respect thereto.

Therefore, in our opinion, when the allegations in the proposed amendment are liberally construed, as required by G.S. § 1-151, they are sufficient, if proven, to establish agency within the purview of the family purpose doctrine. Vaughn v. Booker, 217 N.C. 479, 8 S.E.2d 603, 132 A.L.R. 977.

Ordinarily, a defendant has the right to plead as a defense to an action for wrongful death, facts, which if proven, will constitute a bar to plaintiff's right to recover. In re Estate of Ives, 248 N.C. 176, 102 S.E.2d 807, 72 A.L.R.2d 278; Davenport v. Patrick, 227 N.C. 686, 44 S.E.2d 203; Pearson v. National Manufacture & Stores Corp., 219 N.C. 717, 14 S.E.2d 811; Davis v. Seaboard Airline R. R., 136 N.C. 115, 48 S.E. 591.

This Court, in the case of Woody v. Pickelsimer, 248 N.C. 599, 104 S.E.2d 273, 279, said: "Ordinarily motion to amend a pleading * * * is addressed to the sound discretion of the trial court, and his ruling thereon, made in the exercise of such discretion, is not reviewable on appeal; but it is error for the trial court to rule thereon as a matter of law without the exercise of discretion. See Tickle v. Hobgood, 212 N.C. 762, 194 S.E. 461, and cases cited."

In view of the conclusion we have reached with respect to the allegations contained in the proposed amendment, in our opinion, the defendant is entitled to have its motion reconsidered and passed upon as a discretionary matter. Tickle v. Hobgood, supra.

Error.