Smith v. Beasley , 298 N.C. 798 ( 1979 )

259 S.E.2d 907 (1979) 298 N.C. 798

Betty Rouse SMITH
v.
Myrtle Tew BEASLEY and Dural Lee Fish.

No. 83.

Supreme Court of North Carolina.

December 4, 1979.

Young, Moore, Henderson & Alvis by George M. Teague, Raleigh, for defendants-appellees.

Brenton D. Adams, Raleigh, for plaintiff-appellant.

BRANCH, Chief Justice.

The principal question presented by this appeal is whether the trial judge erred in denying plaintiff's motion to set aside the verdict because of an inadequate award of damages. Plaintiff contends that since defendant offered no evidence, her evidence was uncontradicted and should be treated as a stipulation. She argues that since the jury awarded less than that amount, it ignored plaintiff's evidence and the court's instructions regarding pain and suffering.

In support of her position, plaintiff relies heavily upon the case of Robertson v. Stanley, 285 N.C. 561, 206 S.E.2d 190 (1974). In Robertson the minor plaintiff and his father sued the defendant for damages resulting from defendant's alleged negligence. The minor plaintiff sought to recover for personal injuries, and the father sought recovery for medical expenditures incurred by reason of his son's personal injury. The medical expenses were stipulated to be in the amount of $1,970. The jury answered the issues of negligence in favor of the plaintiffs and awarded $1,970 to the father and nothing to the minor plaintiff. Plaintiff's motion for a new trial was denied by the trial court, and the Court of Appeals found no error in the trial. We reversed the Court of Appeals, holding that the jury arbitrarily ignored the minor plaintiff's proof of pain and suffering. In so holding, we stated, "If the minor plaintiff was entitled to a verdict against defendant by reason of personal injuries resulting from defendant's negligence, then the minor plaintiff was entitled to all damages that the law provides in such case."

The majority in the Court of Appeals held that the case sub judice and Robertson were distinguishable. We agree.

A stipulation is an agreement between the parties establishing a particular fact in controversy. The effect of a stipulation is to eliminate the necessity of submitting that issue of fact to the jury. Rural Plumbing & Heating, Inc. v. H. C. Jones Construction Co., 268 N.C. 23, 149 S.E.2d 625 (1966). Where facts are stipulated, they are deemed established as fully as if determined by jury verdict. Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460 (1958). A stipulated fact is not for the consideration of the jury, and the jury may not decide such fact contrary to the parties' stipulation. Inloes v. American Exchange Bank, 11 Md. 173 (1857).

Here there was no stipulation removing any element of damages from the consideration of the jury. The testimony of plaintiff's witnesses remained mere evidence in this case to be considered by the jury. It is the function of the jury alone to weigh the evidence, determine the credibility of the witnesses and the probative force to be given their testimony, and determine what the evidence proves or fails to prove. Koury v. Follo, 272 N.C. 366, 158 S.E.2d 548 (1968). In weighing the credibility of the testimony, the jury has the right to believe any part or none of it. Brown v. Brown, 264 N.C. 485, 141 S.E.2d 875 (1965).

In the instant case, the jury was free to believe or not believe plaintiff's evidence as to the amount of her damages and the nature of her injury. Plaintiff's own evidence was contradictory and in part unfavorable to her position. It is, therefore, conceivable that the jurors, under these circumstances, could have found nominal damages as to plaintiff's pain and suffering, believed the evidence unfavorable to her as to the other elements of damage and returned their verdict accordingly.

We do not deem it necessary to discuss the remaining assignments of error. Suffice it to say that we have carefully examined each of them and find no error prejudicial to plaintiff.

The decision of the Court of Appeals is

AFFIRMED.

BROCK and CARLTON, JJ., took no part in the consideration or decision of this case.