{
  "id": 8553541,
  "name": "OLIVER RAY BARNES v. LACY LEE RORIE and PEARLIE MAE WALDEN",
  "name_abbreviation": "Barnes v. Rorie",
  "decision_date": "1972-06-28",
  "docket_number": "No. 7219SC230",
  "first_page": "751",
  "last_page": "754",
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    "name": "North Carolina Court of Appeals"
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  "last_updated": "2023-07-14T22:58:48.650385+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Britt and Hedrick concur."
    ],
    "parties": [
      "OLIVER RAY BARNES v. LACY LEE RORIE and PEARLIE MAE WALDEN"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nRule 4 of the Rules of Practice in the Court of Appeals as adopted by our Supreme Court on 20 January 1971, is as follows:\n\u201c4. Appeals \u2014 When Not Entertained.\nThe Court of Appeals will not entertain an appeal:\nFrom the ruling on an interlocutory motion, unless provided for elsewhere. Any interested party may enter an exception to the ruling on the motion and present the question thus raised to this Court on the final appeal; provided, that when any interested party conceives that he will suffer substantial harm from the ruling on the motion, unless the ruling is reviewed by this Court prior to the trial of the cause on its merits, he may petition this Court for a writ of certiorari within thirty days from the date of the entry of the order ruling on the motion.\u201d\nThe orders from which plaintiff here attempts to appeal were rulings by the trial judge on interlocutory motions. No petition for writ of certiorari was filed. None of these interlocutory orders affected a substantial right and plaintiff will suffer no substantial harm if the trial court\u2019s rulings are not reviewed by this Court prior to the trial of the cause on its merits. Therefore, plaintiff\u2019s attempted appeal must be dismissed. Gardner v. Brady, 13 N.C. App. 647, 186 S.E. 2d 659.\nPleadings are not to be read to the jury, unless otherwise ordered by the trial judge, G.S. 1A-1, Rule 7(d), and if upon the trial plaintiff offers evidence to support his alternative theory that the owner-defendant was liable because of negligence in allowing her car to be driven by a person known by her to be a reckless driver, the court may then allow the pleadings to be amended to conform to the proof, G.S. 1A-1, Rule 15(b). While there is no such pleading as a \u201cReply to a Reply,\u201d G.S. 1A-1, Rule 7(a), we perceive no harm to plaintiff in this case in the order allowing defendants to file such a document. The question of whether defendants\u2019 counterclaims are barred by the statute of limitations is in any event appropriately presented and can be decided on the pleadings properly filed in this case. (On this question, see: Brumble v. Brown, 71 N.C. 513; 1 McIntosh, N.C. Practice and Procedure, 2d, \u00a7 327.)\nFragmentary appeals serve principally to delay disposition of causes upon their merits. It is a sound policy of our law not to permit appeals from interlocutory orders unless they affect substantial rights in such manner that the party whose rights are adversely affected will suffer substantial harm if the interlocutory ruling is not reviewed by the appellate court prior to trial of the cause on its merits. On the present record, such is not the case. Plaintiff\u2019s attempted appeal is\nDismissed.\nJudges Britt and Hedrick concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Ottway Burton for plaintiff appellant.",
      "W. Samuel Shaffer II for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "OLIVER RAY BARNES v. LACY LEE RORIE and PEARLIE MAE WALDEN\nNo. 7219SC230\n(Filed 28 June 1972)\n1. Appeal and Error \u00a7 6\u2014 appeal from interlocutory orders \u2014 dismissal\nThe appellate court dismissed as premature plaintiff\u2019s attempted appeal from interlocutory orders striking from plaintiff\u2019s replies allegations concerning an insurance company and the reputation for wreckless driving and criminal record of defendant automobile driver, and allowing each defendant to file a \u201cReply to Plaintiff\u2019s Reply\u201d alleging that plaintiff had waived his defense of the statute of limitations, since none of the interlocutory orders affected a substantial right and plaintiff will suffer no substantial harm if the trial court\u2019s orders are not reviewed by the appellate court prior to the trial of the cause on the merits.\n2. Rules of Civil Procedure \u00a7 7; Trial \u00a7 5\u2014 pleadings \u2014 reading to jury\nPleadings are not to be read to the jury, unless otherwise ordered by the trial judge. G.S. 1A-1, Rule 7 (d).\n3. Pleadings \u00a7 32; Rules of Civil Procedure \u00a7 15\u2014 amendment of pleading to conform to evidence\nAlthough the trial court struck plaintiff\u2019s allegation that defendant automobile owner was negligent in permitting defendant driver to use her automobile when she knew the driver\u2019s reputation for reckless driving, if upon the trial plaintiff offers evidence to support such theory, the court may then allow the pleadings to be amended to conform to the proof. G.S. 1A-1, Rule 15(b).\n4. Pleadings \u00a7 17; Rules- of Civil Procedure \u00a7 7\u2014 \u201cReply to a Reply\u201d \u2014 counterclaim \u2014 statute of limitations \u2014 waiver\nAlthough there is no such pleading as a \u201cReply to a Reply,\u201d G.S. 1A-1, Rule 7(a), plaintiff was not prejudiced by an order allowing defendants to file such a document alleging that plaintiff had waived the statute of limitations as a defense to defendants\u2019 counterclaims by filing his complaint, where the question of whether defendants\u2019 counterclaims are barred by the statute of limitations is appropriately presented and can be decided on the pleadings properly filed in the case.\nAppeal by plaintiff from Johnston, Judge, 13 December 1971 Session of Superior Court held in Randolph County.\nThis civil action was commenced 26 May 1970 to recover $400.00 for damages to plaintiff\u2019s automobile resulting from a collision which occurred on 27 May 1967. Plaintiff alleged that an automobile owned by and registered in the name of the defendant, Pearlie Mae Walden, was being driven by the defendant, Lacy Lee Rorie, acting as her agent, when it struck and damaged plaintiff\u2019s parked vehicle, and that the collision was caused by the actionable negligence of the defendant driver. On 24 July 1970, within apt time as extended by a consent order, defendants filed answers and counterclaims, in which they admitted that the automobile which struck plaintiff\u2019s parked car was owned by and registered in the name of defendant Walden and was being driven by defendant Rorie with her consent, but denied other material allegations of the complaint. Defendants denied negligence on the part of the defendant driver, pleaded contributory negligence on the part of plaintiff in leaving his parked car unlighted and unattended at night on the main traveled portion of the highway, and counterclaimed for damages caused by plaintiff\u2019s actionable negligence. In these counterclaims defendant Rorie seeks recovery of $30,000.00 for personal injuries and defendant Walden seeks recovery of $1,200.00 for damages to her car.\nPlaintiff filed replies alleging (1) that the counterclaims of defendants were barred by the statute of limitations, G.S. 1-52; (2) that the defendants had been persuaded to file the counterclaims by the agents and adjusters of the Security Insurance Company as a purported defense to plaintiff\u2019s claim; and (3) that defendant Walden was negligent in permitting defendant Rorie to use her automobile for the reason that he had the reputation, which was known to defendant Walden, of being reckless in his operation of an automobile. A \u201clist of some of his [defendant Rorie\u2019s] criminal violations\u201d was attached to the replies as an exhibit, which plaintiff asked to be incorporated into the replies.\nThe trial court allowed defendants\u2019 motions to strike from plaintiff\u2019s replies the allegations concerning the Security Insurance Company and concerning the reputation for reckless driving and the criminal record of defendant Rorie. The trial court also entered orders allowing each defendant to file \u201ca Reply to Plaintiff\u2019s Reply,\u201d alleging that the counterclaims \u201carose out of the same cause of action as that in the complaint; and that by the filing of the complaint the Plaintiff waives his defense of Statutes of Limitations to the counterclaim.\u201d\nTo the entry of the orders striking the allegations from his replies and allowing each defendant to file a \u201cReply to Plaintiff\u2019s Reply,\u201d plaintiff excepted and gave notice of appeal.\nOttway Burton for plaintiff appellant.\nW. Samuel Shaffer II for defendant appellees."
  },
  "file_name": "0751-01",
  "first_page_order": 777,
  "last_page_order": 780
}