Worthington v. Bynum , 305 N.C. 478 ( 1982 )

Justice BRITT

dissenting.

I respectfully dissent from the majority opinion and vote to affirm the decision of the Court of Appeals.

The majority opinion begins with the premise that “it has been long settled in our jurisdiction that an appellate court’s review of a trial judge’s discretionary ruling either granting or denying a motion to set aside a verdict and order a new trial is strictly limited to the determination of whether the record affirmatively demonstrates a manifest abuse of discretion by the judge”, citing numerous decisions of this court decided prior to 1 January 1970, the effective date of Chapter 1A of the General Statutes, the Rules of Civil Procedure. I agree that the quoted statement was the rule in this jurisdiction for more than 100 years. However, one of the objectives in the adoption of the new Rules of Civil Procedure was to update the operation of our courts in the trial of civil cases and, hopefully, to make them more efficient. See generally General Scope and Philosophy of the New Rules, 5 Wake Forest Intra. Law Rev. 1 (1969).

Very soon after the effective date of G.S. 1A, this court in Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161 (1970), in an opinion by Justice (later Chief Justice) Sharp, observed that our rules are modeled after the federal rules of civil procedure, and that “in most instances they are verbatim copies with the same enumerations.” The court further stated that

Since the federal and, presumably, the New York rules are the source of NCRCP, we will look to the decisions of those jurisdictions for enlightment and guidance as we develop “the philosophy of the new rules.”

277 N.C. at 101.

Since virtually all appeals in civil cases in this state first go to the Court of Appeals, that court has found it necessary in many cases to interpret and apply the new rules of civil procedure without guidance or precedent from this court. Of course, this court has the “final word” if the case reaches it.

The Court of Appeals in the case at hand followed very closely the decision of that court in Howard v. Mercer, 36 N.C. App. 67, 243 S.E. 2d 168 (1978). As a member of the Court of Appeals at that time, I was the author of the opinion in Howard. While this court granted a petition for discretionary review, the petition was withdrawn on motion of the petitioner before a decision was rendered by this court. In Howard, the court pointed out that “a review of the law in North Carolina does not reveal a standard for determining what is a sufficient abuse of discretion to warrant a reversal of a trial court’s ruling on a Rule 59 motion in which a new trial was granted.” The court then elected to adopt a standard established in Taylor v. Washington Terminal Co., 409 F. 2d 145 (D.C. Cir.), cert. denied, 90 S.Ct. 93, 396 U.S. 835, 24 L.Ed. 2d 85 (1969), decided under Federal Rule 59 which is similar to North Carolina Rule 59. We quote from the opinion in Taylor:

Where the jury finds a particular quantum of damages and the trial judge refuses to disturb its finding on the motion for a new trial, the two factors press in the same direction, and an appellate court should be certain indeed that the award is contrary to all reason before it orders a remittitur or a new trial. However, where, as here, the jury as primary fact-finder fixes a quantum, and the trial judge indicates his view that it is excessive by granting a remittitur, the two factors oppose each other. The judge’s unique opportunity to consider the evidence in the living courtroom context must be respected. But against his judgment we must consider that the agency to whom the Constitution allocates the fact-finding function in the first instance — the jury — has evaluated the facts differently.

In this jurisdiction particularly, District Court judges have given great weight to jury verdicts. They have stated that a new trial motion will not be granted unless the “verdict is so unreasonably high as to result in a miscarriage of justice,” or, most recently, unless the verdict is “so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.”

At the appellate level, in reviewing a trial judge’s grant of a new trial for excessive verdict, we should not apply the same standard. The trial judge’s view that a verdict is outside the proper range deserves considerable deference. His exercise of discretion in granting the motion is reviewable only for abuse. Thus we will reverse the grant of a new trial for excessive verdict only where the quantum of damages found by the jury was clearly within “the maximum limit of a reasonable range.” 409 F. 2d at 148-149.

In Howard, the Court of Appeals concluded that the verdict was clearly within “the maximum limit of a reasonable range”, and that there was no appearance that the verdict was given under the influence of passion or prejudice; thereupon the court held that the trial judge abused his discretion in setting aside the verdict.

In the case at hand the majority concluded that the trial court awarded a new trial “as a matter of ‘its considered discretion’ (and thus not as a matter of law).” That being true it is clear that the trial court awarded a new trial under Rule 59(a)(6) for “excessive or inadequate damages appearing to have been given under the influence of passion or prejudice.”

The majority concludes that while this court has had many opportunities to formulate a “precise” test for determining when an abuse of discretion has occurred “in the trial judge’s grant or denial of a motion for a new trial”, the court has not “found it logically necessary or wise to attempt to define what an abuse of discretion might be in the abstract concerning any ground upon which a new trial may be granted.” Although I agree that this court has not formulated such a test, I do not agree that this court should not at this time establish a standard for reviewing this type of decision.

I fully agree with Judge Whichard’s views expressed in his concurring opinion in the case at hand. He pointed out that Howard “establishes, as the standard for granting or denying a motion to set aside a verdict and order a new trial on the issue of damages, the test of whether the verdict was within the maximum limit of a reasonable range. If the verdict was within the maximum limit of a reasonable range, the motion should be denied. If not, the motion should be granted.”

Applying the standard sought to be established in Howard, and followed by the Court of Appeals in the case at hand, Judge Becton meticulously enumerated the injuries sustained by plaintiffs and described the pain and discomfort they endured in receiving medical treatment. I agree that the verdicts were within the maximum limit of a reasonable range.

Judge Becton also addressed the concern that the conscientious trial judge indicated that errors of law had been committed during the trial. While that question is not presented, I agree with the Court of Appeals that it appears that any errors of law were favorable to defendant, therefore, he is in no position to complain.

In my view, adoption of the standard discussed above would result in more even-handed justice to citizens of the various sections of North Carolina. The population of the counties of our state now vary from 3,975 in eastern, predominantly rural Tyrrell County to 404,270 in Piedmont, highly urbanized Mecklenburg County.¹ I believe that the standard would aid the appellate division in ascertaining that citizens from all areas of our state receive “the equal protection of the laws.”

Finally, the majority suggests that in the case at hand “it is not inconceivable . . . that the jury awarded these damages ‘under the influence of passion or prejudice’ ”, one of the grounds for awarding a new trial under Rule 59(a)(6). The record discloses that following the wreck in which plaintiffs were injured defendant’s blood alcohol content was .21. Considering the carnage that intoxicated drivers are causing on the highways of our state, it is my hope that juries will never cease to view with some disfavor those who elect to drive motor vehicles while intoxicated.

1 . North Carolina Manual, 1981, pp. 129-30.