#### G. W. TICKLE v. FRANK P. HOBGOOD, Administrator, et al.

(Filed 5 January, 1938.)

1. Appeal and Error §§ 37b, 40c—

An application for a bill of particulars, C. S., 534, or a motion to require a pleading to be made more definite and certain, O. S., 537, is addressed to tbe discretion of tbe trial court, and bis ruling tbereon in tbe exercise of sueb discretion is ordinarily not reviewable, but it is error for tbe trial court to rule tbereon as a matter of law without tbe exercise of discretion.

2. Pleadings § 27—

An application for a bill of particulars or a motion to require a pleading to be made more definite and certain is addressed to tbe discretion of the trial court, and it is error for tbe trial court to rule tbereon as a matter of law without tbe exercise of discretion.

Baknhill, J., took no part in tbe consideration or decision of tbis case.

Appeal by defendant from Barnhill, J., at March Special Term, 1937, of ALAMANCE.

Civil action by ultimate consumer to recover of manufacturer or bottler damages resulting from drinking bottled beverage containing noxious substance.

Plaintiff alleges that on 9 May, 1936, be purchased a bottle of coca-cola, manufactured and placed on tbe market by tbe defendant, wbicb contained some deleterious substance; that be became ill from drinking, part of its contents, and that be thereby sustained great injury and damage.

Anticipating that tbe plaintiff would attempt to show other instances of deleterious substances discovered in like products, manufactured under substantially similar circumstances and sold by tbe defendant “at about tbe same time,” Enloe v. BoUling Go., 208 N. C., 305, 180 S. E., 582, tbe defendant seasonably asked for a bill of particulars of any such instances wbicb tbe plaintiff proposed to show and rely upon to make out bis case.

*763The court, “being of opinion that the defendant is not entitled to the •order prayed for,” overruled defendant’s motion “as a matter of law and without exercise of the discretion vested in the court.”

From the foregoing disposition of defendant’s motion he appeals, assigning error.

Lamerón & Young for plaintiff, appellee.

J. Lolph Long and B. M. Bobinson for defendant, appellants.

Stagy, C. J.

An application for a bill of particulars under C. S., 534, or a motion to require a pleading to be made more definite and certain under 537, 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, except perhaps in extreme cases. Temple v. Tel. Co., 205 N. C., 441, 171 S. E., 630; S. v. Bryant, 111 N. C., 693, 16 S. E., 326. Where however, as here, the court denies the motion as a matter of law, without the exercise of discretion, the defendant is entitled to have the application reconsidered and passed upon as a discretionary matter. Townsend v. Williams, 117 N. C., 330, 23 S. E., 461; S. v. Fuller, 114 N. C., 885, 19 S. E., 797. For procedure in criminal cases see C. S., 4613; S. v. Wadford, 194 N. C., 336, 139 S. E., 608.

Error.

Babnhill, J., took no part in the consideration or decision of this-case.