GOODE
v.
BARTON et al.
No. 101.
Supreme Court of North Carolina.
November 4, 1953.*401 Harkins, Van Winkle, Walton & Buck, Asheville, for plaintiff, appellee.
Adams & Adams, Asheville, for defendants, appellants.
PARKER, Justice.
Summons in this action was duly issued on 15 November 1951. On 4 June 1953, the defendants duly served on plaintiff a notice that at the convening of Court on 9 June, or as soon thereafter as convenient to the Court, they would move the Court for leave to amend their respective answers so as to allege assumption of risk and contributory negligence of plaintiff's intestate in failing to protest against the manner in which Kenneth Barton was driving and in failing to warn him of danger on the road. Copies of the proposed amendments were attached to the notice. This motion was made to the Court upon the call of the action for trial on 9 June 1953. The Court in its discretion denied the motion, and the defendants excepted. This is their Assignment of Error No. One.
During the trial the defendant Kenneth Barton, at the beginning of his testimony, said the money that bought the car was his own money that he had saved. At this point the defendants moved for leave to amend Paragraph 9 of each answer by adding "that the money for the purchase of said automobile was the property of the defendant Kennetth H. Barton." The court, in its discretion, denied the motion, and the *402 defendants excepted. This is their Assignment of Error No. Seventeen.
These two assignments of errors will be discussed together.
It is a firmly established rule of practice with us that an application for leave to amend a pleading, after time for filing has expired, is a matter addressed to the sound discretion of the trial court, and a ruling thereon is not subject to review on appeal unless the circumstances affirmatively show a manifest abuse by the court of its discretionary power. Handley Motor Co. v. Wood, 238 N.C. ___, 78 S.E.2d 391; Hooper v. Glenn, 230 N.C. 571, 53 S.E.2d 843.
On appeal error will not be presumed. The burden is on the appellant to make it plainly appear. Beaman v. Southern Ry. Co., 238 N.C. 418, 78 S.E.2d 182, where many authorities are cited. Our decisions are uniform that the burden of alleging and proving contributory negligence is on the defendant. Lyerly v. Griffin, 237 N.C. 686, 75 S.E.2d 730. If contributory negligence had been pleaded, it would not avail the defendants for they have offered no evidence that plaintiff's intestate failed to warn Kenneth Barton of any danger or hazard on the highway or failed to protest against the manner in which he was driving.
Assumption of risk was not available as a defense for there was no contractual relation between plaintiff's intestate and the defendants. Cobia v. Atlantic Coast Line R. Co., 188 N.C. 487, 125 S.E. 18; Broughton v. Standard Oil Co., 201 N. C. 282, 159 S.E. 321.
As to the second proposed amendment. In Paragraph 9 of their respective answers each admitted that Douglas William Barton purchased said automobile prior to 26 November 1950 for the use of his son, and permitted him to use it fully, freely and exclusively. Kenneth Barton testified his father was paying the money for the trips, except for certain money he had earned in the summer; he was taking care of me; he had the automobile registered in his name with a New Jersey license. The proposed amendment in the midst of the trial was too late. Further, the failure to allow the amendment did not hamper the defendants in their defense, for under the family purpose doctrine as set forth by this Court "liability under this doctrine is not confined to owner or driver. It depends upon control and use." Matthews v. Cheatham, 210 N.C. 592, 188 S.E. 87, 91.
The record does not justify an inference that the trial court abused its discretion in the premises, and Assignments of Errors Nos. One and Seventeen are untenable.
The defendants' Assignment of Error No. 28as stated in their brief"relates to what the appellants urge is a misapplication of the family purpose doctrine. The court * * * charged the jury on the family purpose doctrine as the same prevails in North Carolina. In this it is felt that error was committed to the prejudice of the defendant Douglas William Barton." In support of their contention they cite four New Jersey cases which they assert decide that New Jersey does not follow the family purpose doctrine, certainly not to the extent as in North Carolina, and that Kenneth Barton could not, under the New Jersey law, be regarded as an agent of his father unless the car was in some manner used on the business or for the benefit of the father.
The actionable quality or nature of acts causing death is to be determined by the lex loci. Childress v. Johnson Motor Lines, 235 N.C. 522, 70 S.E.2d 558; Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911, 148 A.L.R. 1126; 11 Am.Jur., Conflict of Laws, Sec. 182.
In Young v. Masci, 289 U.S. 253, 53 S. Ct. 599, 77 L. Ed. 1158, 88 A.L.R. 170, these were the facts. Masci, a citizen and resident of New York, brought this action in a court of New Jersey against Young, a citizen and resident of the latter state, to enforce liability for personal injuries under a New York statute. The New York statute *403 imposed liability on the owner of an automobile operated on the highways of the state for the negligence of one driving it with his permission. Young lent his automobile to Michael Balbino for a day without restriction upon its use, the contract of bailment and delivery of the car being made in New Jersey; that Balbino took the car to New York; and that while driving there negligently struck Masci. There was evidence to justify a finding that the car was taken to New York with Young's permission, express or implied. By the law of New Jersey Young was immune from liability for Balbino's negligence. Young moved for a directed verdict on the ground that the bailment was made in New Jersey; that he was not in New York at the time of the accident; that Balbino was not his agent or engaged on business for him; and that to apply the law of New York and so make the defendant responsible for something done by Balbino in New York would deprive the defendant of his property and his liberty without due process of law, in violation of the 14th Amendment to the U. S. Constitution. The jury found a verdict for the plaintiff, and the judgment entered thereon was affirmed by the highest court of that State. 109 N.J.L. 453, 162 A. 623, 83 A.L.R. 869. In affirming the case the U. S. Supreme Court said [289 U.S. 253, 53 S. Ct. 601]: "When Young gave permission to drive his car to New York, he subjected himself to the legal consequences imposed by that state upon Balbino's negligent driving as fully as if he had stood in the relation of master to servant. A person who sets in motion in one state the means by which injury is inflicted in another may, consistently with the due process clause, be made liable for that injury whether the means employed be a responsible agent or an irresponsible instrument. The cases are many in which a person acting outside the state may be held responsible according to the law of the state for injurious consequences within it. * * * The power of the state to protect itself and its inhabitants is not limited by the scope of the doctrine of principal and agent." The Court further on in the opinion said "obviously there is no denial of equal protection, since all who permit their cars to be driven in New York are treated alike." See also Ewing v. Thompson, 233 N.C. 564, 65 S.E.2d 17.
The family purpose doctrine with respect to automobiles has been adopted as the law of this jurisdiction, and applied in numerous cases. Ewing v. Thompson, supra; Matthews v. Cheatham, supra; Grier v. Woodside, 200 N.C. 759, 158 S.E. 491.
The appellants do not contend that the trial court failed to charge or erroneously charged the law of this jurisdiction relative to the family purpose doctrine. The court was correct in charging the law of this State as it applied to the second issue, and appellants' Assignment of Error No. 28 is overruled.
The appellants' Assignment of Error No. 25 is that the court's instructions to the jury as to the doctrine of sudden emergency limited the application of the rule to an automobile driver who, by negligence of another and not by his own negligence, is suddenly confronted with an emergency. In this exception appellants pick out one phrase "who by negligence of another" in a charge consisting of three paragraphs on the rule of sudden emergency. The words picked out occur in the first paragraph. The first paragraph is taken verbatim from Bullock v. Williams, 212 N.C. 113, 193 S.E. 170, 174, except that the charge in the instant case says it is a question for the jury and the Bullock case says it is ordinarily a question for the jury. In the Bullock case the Court said "the statement of the general rule of law relating to emergencies, as contained in the charge, was in accord with the authorities," citing authorities. The appellants contend that the facts in the Bullock case show that the emergency involved the negligence of another, and the question was of no moment; and that the emergency in this case was created by weather conditions. If what the Court said in the first paragraph was not applicable to the facts, it did state the doctrine of sudden emergency in the second and third paragraphs clearly and fully as set forth in our decisions. Sparks *404 v. Willis, 228 N.C. 25, 44 S.E.2d 343; Hoke v. Atlantic Greyhound Corp., 227 N.C. 412, 42 S.E.2d 593; Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562. If the use of the words "by the negligence of another" was not applicable to the facts, and is technical error, we do not think that it was prejudicial error sufficient to cause a new trial.
The appellants assign as Errors Nos. twenty-six and twenty-seven part of the court's statement as to the contentions of the plaintiff and the defendants regarding the source of the funds for the purchase of the automobile for Kenneth Barton. This grew out of the facts that both defendants in their answers admitted that Douglas William Barton purchased the automobile for his son, and that Kenneth Barton testified he bought the car with his own money that he had saved.
As to whose funds paid for the car is not material, for liability under the family purpose doctrine as to automobiles is not confined to owner or driver; it depends upon control and use. Matthews v. Cheatham, supra. However, the appellants contend that it is manifest throughout the charge that the trial judge was inclined toward a recovery by the plaintiff, and that nowhere is this more outstanding than in the court's statement of the position of the defendants regarding the source of the funds for the purchase of the automobile for Kenneth Barton. There was evidence to support the contentions stated by the court. There is no assignment of error that the trial court expressed any opinion as to the facts. While the form and manner in which the contentions were stated are open to criticism, we are unable to reach the conclusion that the defendants were prejudiced thereby sufficient to order a new trial, for the burden is upon the appellants not only to show error, but also to make it appear that the result was materially affected thereby to their hurt. From a close reading of the whole charge, and especially the statements of contentions which form the bases of assignments of errors twentysix and twenty-seven, we are of opinion that that burden the appellants have failed to carry. Garland v. Penegar, 235 N.C. 517, 70 S.E.2d 486; Call v. Stroud, 232 N.C. 478, 61 S.E.2d 342; Stewart v. Dixon, 229 N.C. 737, 51 S.E.2d 182.
We have examined all the assignments of errors brought forward in the appellants' brief, and find none of them of sufficient merit to order a new trial. While there may have been technical error in the trial, that is not sufficient to disturb the verdict and judgment. It is the practical rule of appellate procedure that the burden is on the appellants to make it plainly appear that such error affected prejudicially a substantial right belonging to them, and that there is a reasonable probability that the result of the trial might have been materially more favorable to them, if the error had not occurred. Beaman v. Southern Ry. Co., supra; Call v. Stroud, supra, where the authorities are cited.
When the exceptions reserved by the defendants are laid alongside of the rule of appellate procedure, it becomes clear that the case should not be sent back for a new trial.
For the reasons given, we find that there is in a legal sense
No error.