Brown v. Griffin

138 S.E.2d 823 (1964) 263 N.C. 61

Delmas C. BROWN
v.
James Wilson GRIFFIN, Jr.

No. 258.

Supreme Court of North Carolina.

November 25, 1964.

John D. Warren, Charlotte, for appellant.

Boyle, Alexander and Wade, Charlotte, for appellee.

RODMAN, Justice.

Plaintiff's first assertion of error is directed to the court's charge with respect to the first issue. His interpretation of the charge would require him to carry a greater burden of proof than the law requires. We do not agree with plaintiff's interpretation, but if error in that respect be conceded, it was harmless. The jury answered the issue as plaintiff says it should be answered. New trials are not awarded for nonprejudicial errors. Jones v. Hester, 262 N.C. 487, 137 S.E.2d 846. Plaintiff testified he incurred medical and hospital bills to the amount of $1,752.00. Hence he says even if the jury awarded nothing for pain and suffering, it could not have answered the second issue for any sum less then $1,752.00. True, the jury could have accepted plaintiff's testimony with respect to his expenditures; but it was not compelled to do so. Defendant made no admissions with respect thereto. The judge had the discretionary power to set the verdict aside; but he was not compelled to act. Dixon v. Young, 255 N.C. 578, 122 S.E.2d 202. Abuse of discretion is not shown.

Plaintiff, on direct examination, testified he was out of work for one month His salary was $575.00 per month. On cross examination, he said he did no work for one week, but then worked half of each day "until I could get where I could stay all day * * * I worked half days for possibly at least two weeks. After that, I returned to work full time except for several periods when I was hospitalized." He further testified, "My company was good enough to pay me the time I was out. I did not have actual wage loss."

The court charged in part: "[I]t is for you, the jury, to say, under all the circumstances, what is fair and reasonable sum which the defendant should pay the plaintiff by way of compensation for the injuries he has sustained, if any. [T]he age and occupation or profession of the plaintiff, the nature and extent of his business, the value of his services, the amount of his salary, whether plaintiff was employed or unemployed."

In concluding the charge, the court inquired: "Any requests for further instructions?" Counsel for plaintiff replied: "No requests for the plaintiff."

Plaintiff does not except to the quoted portion of the charge. He challenges its accuracy indirectly by excepting to the failure of the court to specifically inform the jury that plaintiff was entitled to recover for the time he was not at work, even though his employer made no deduction because plaintiff was not able to work full time. The failure to so charge was, he says, a violation of the duty imposed by G.S. § 1-180.

The decisions on this question are not in harmony. Pensak v. Peerless Oil Co., 311 Pa. 207, 166 A. 792; Limbert v. Bishop, 96 Ga.App. 652, 101 S.E.2d 148; Morgan v. Woodruff, Tex.Civ.App., 208 S.W.2d 628; Hudgens v. Mayeaux, La.App., 143 So. 2d 606; Martin v. Sheffield, 112 Utah 478, 189 P.2d 127; 15 Am.Jur., Damages, sec. 200. Decision is not now necessary. Plaintiff did not allege damage because of loss of wages. Not only did he not allege such loss, but when a specific inquiry was made with respect to the sufficiency of the charge, he stated he did not ask for further instructions. He can not now complain of the asserted inadequacy of the charge. Overton v. Overton, 260 N.C. 139, 132 S.E.2d 349; Parks v. Washington, 255 N.C. 478, 122 S.E.2d 70; State v. McPeak, 243 N.C. 273, 90 S.E.2d 505; Owens v. Blackwood Lumber Co., 212 N.C. 133, 193 S.E. 219.

Other assignments relating to the charge have been carefully examined We find none requiring discussion.

Plaintiff's final assignment of error is directed to the action of the court in reducing the amount which the jury awarded as damages, and rendition of judgment for the reduced amount. A court may not, without the assent of the interested party, reduce a verdict. The judgment should, of course, follow the verdict. Bethea v. Kenly, 261 N.C. 730, 136 S.E.2d 38. Here, the court found that "$500.00, had, subsequent to the institution of this action, been paid by the defendant to the plaintiff in payment of a portion of the medical and hospital expenses incurred by the plaintiff as a result of the accident complained of by the plaintiff."

There is no evidence to support the court's statement. Significantly, defendant does not plead payment in whole or in part even though he was permitted, within 60 days of the trial, to amend his answer to plead contributory negligence. "Payment is an affirmative plea and the burden of showing payment is on the one who relies on payment as a defense." White v. McCarter, 261 N.C. 362, 134 S.E.2d 612.

The briefs make it clear, we think, that the court did not intend to find as a fact that defendant had paid plaintiff any sum; and what is stated as a finding is a legal conclusion. Whether that conclusion is correct depends on the facts. The only thing in the record on which the court could base its conclusion was a letter written by the Assistant Treasurer of Southeastern Fire Insurance Company to plaintiff on June 5, 1963. The letter reads:

"Re: Policy # ACF 34924 Date of Accident 7-29-62

"Dear Mr. Brown:

"We are pleased to attach our draft in the amount of $500.00, payable to you on the Medical Expenses incurred as a result of the captioned accident. This payment represents the maximum payment possible under the Medical Payments coverage of your policy.

"We trust you will find the attached draft in order."

We infer from plaintiff's brief that he admits he received $500.00 from the insurance company, but that is not an admission that defendant can pay plaintiff with insurance bought and paid for by plaintiff. The policy of insurance is not a part of the record. We have no information with respect to the policy provisions. Was the policy an accident and health policy paid for by plaintiff, or was it a combination medical and liability policy? There is nothing here to show a payment to plaintiff by defendant. If defendant had desired the benefit of the insurance payment, he should have placed the facts to support his plea in the record and not left his right to benefit by the payment to speculation.

That portion of the judgment reducing the verdict will be stricken, and the jury's verdict reinstated. The judgment will thereon be modified to conform with the verdict. The judgment is

Modified and affirmed.