WHEELER
v.
WHEELER et ux.
No. 234.
Supreme Court of North Carolina.
March 17, 1954.*757 Hayes & Davis and Moore & Gambill, North Wilkesboro, for plaintiff appellee.
Trivette, Holshouser & Mitchell, North Wilkesboro, for defendant appellants.
BARNHILL, Chief Justice.
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 the 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; Car land 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.
"All the material issues must be tried, unless waived, and it is error not to try them. Porter v. [Western N. C.] R. R., 97 N.C. 66, 2 S.E. 581; Davidson v. Gifford, 100 N.C. 18, 6 S.E. 718;" 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.
*758 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 evidence and by its greater weight represents the amount which he (plaintiff) has advanced to the defendant, at the request of the defendant, under a promise by the defendant to repay said amount, or to support and maintain the plaintiff for the remainder of his life."
The charge on the second issue is in almost identical language:
"* * * you will answer that issue in such amount as * * * represents the amount advanced by the plaintiff to the defendant Georgia Wheeler * * * for which she promised to pay or which she promised to support and maintain the plaintiff and his wife."
Thus the court opened the door for the jury to answer these issues either on the theory plaintiff had advanced money to defendants on their promise to furnish him maintenance and support during the remainder of his life or had merely made a loan to them in some amount.
On the first cause of action plaintiff insists that defendants contracted to furnish him with support and maintenance. Defendants assert the male defendant merely borrowed $3,000. Upon which theory did the jury answer the issue? Did it find that defendants had breached their contract to maintain and support plaintiff or that plaintiff voluntarily built the small dwelling for his own convenience and therefore nothing is due him for the money expended thereon? In the original transaction did plaintiff advance $4,500, as his evidence tends to show, or $4,000, the amount he withdrew from the bank at the time, or only $3,000, as defendants allege? Is the amount arrived at by the jury made up partly of money advanced at the time the land was purchased or did the jury add hospital and other expenses paid by plaintiff after defendants breached their contract to support? These and other questions the record fails to answer. They demonstrate, however, that the facts at issue, as raised by the pleadings filed and the testimony offered, are not fully and satisfactorily answered.
Furthermore, if the money advanced by plaintiff was merely a loan, the testimony to the effect plaintiff was sick for a month without anyone to care for him while defendants were in Ohio; that his health was "plumb bad;" that at one time while he was sick the only food he had in his home was a little brown sugar, a little piece of cake, and some vegetables; to which defendants excepted, was irrelevant and highly prejudicial to defendants.
For the reasons stated, the quoted excerpts from the charge must be held for prejudicial error which entitles defendants to a new trial.