Haas v. Kelso

331 S.E.2d 759 (1985)

John Michael HAAS
v.
Reece KELSO, t/a Kelso's Auto Enterprise.

No. 8427DC1266.

Court of Appeals of North Carolina.

July 16, 1985.

Basil L. Whitener, Gastonia, for plaintiff-appellee.

Lloyd T. Kelso, P.A. by Robert W. Ferguson, Gastonia, for defendant-appellant.

EAGLES, Judge.

I

Defendant first assigns as error the trial court's granting of plaintiff's motion to amend his complaint. We find no error.

A motion to amend pleadings is addressed to the sound discretion of the trial court. Markham v. Johnson, 15 N.C. App. 139, 189 S.E.2d 588, cert. denied, 281 N.C. 758, 191 S.E.2d 356 (1972); Willow Mountain Corp. v. Parker, 37 N.C.App. 718, 247 S.E.2d 11, cert. denied, 295 N.C. 738, 248 S.E.2d 867 (1978). The trial court's ruling upon a motion to amend pleadings is not reviewable absent a showing of an abuse of discretion. Smith v. McRary, 306 N.C. 664, 295 S.E.2d 444 (1982). Defendant has failed to show an abuse of discretion and there is, accordingly, no error.

II

Defendant next assigns as error the submission of the following issue to the jury on the grounds of insufficient evidence.

3. What amount of damages, if any, is the plaintiff entitled to have and recover of the defendant?

. . . . .

b) For loss of use?

We find no error.

When an action for breach of contract is brought, the damages recoverable are those which may reasonably be supposed to have been in contemplation of the parties at the time they contracted. Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979). Damages for injury that follows the breach in the usual course of events are always recoverable provided that plaintiff proves that the injury actually occurred as a result of the breach. Whether damages are recoverable for injury that does not follow breach of a particular contract in the usual course of events (special damages) depends upon the information communicated at the time of contracting. Id. The test is generally one of foreseeability. Hadley v. Baxendale, 9 Exch. 341, 156 Eng.Rep. 145 (1854). Accordingly, damages for "loss of use" are recoverable in an action for breach of contract where, as here, there was evidence from which the jury could find that defendant knew plaintiff was employed in Charlotte, that he would be required to drive to work from his home in Gastonia using his wife's Chevrolet Impala and that as a result he would incur additional fuel expense during the time plaintiff could not use his own car and would be driving his wife's automobile. As applied to the facts of this case, we find no error in the trial court's submission of this issue to the jury.

In a related assignment of error, defendant argues that the trial court erred in instructing the jury on loss of use based on defendant's negligence in completing repairs in that negligence was not pleaded or proved.

The trial court instructed the jury:

So, members of the jury, the Court instructs you that if you find by the greater weight of the evidence that there was a breach of the agreement by the Defendant, Mr. Kelso, and that the Defendant negligently failed to correct the defects within a reasonable period of time and that as a proximate result thereof the Plaintiff was damaged on account of the loss of use of his vehicle, and that such damages were reasonably foreseeable and within the contemplation of the parties; then you will award to the Plaintiff such damages for loss of use as you find by the greater weight of the evidence and under the rule which I have stated to you. (Emphasis added.)

Defendant shows no prejudice by this instruction. In fact, by this instruction, plaintiff's burden was increased to show by the greater weight of the evidence both a breach of contract and negligence on the part of defendant to sustain damages for loss of use. Accordingly, defendant's assignment of error is overruled.

III

Defendant next assigns as error the trial court's denial of his motion for a new trial pursuant to G.S. 1A-1, Rule 59. Defendant argues that the amount of the verdict was excessive as a matter of law and the evidence insufficient to support it. We find no error.

Under G.S. 1A-1, Rule 59(a)(6), a trial court may grant a new trial to any party on the grounds that damages awarded are inadequate or excessive and which appear to have been given under the influence of passion or prejudice. A motion in this regard is directed to the sound discretion of the trial court. It is established that the trial court's decision will not be disturbed on appeal in the absence of a showing of abuse of discretion. Setzer v. Dunlap, 23 N.C.App. 362, 208 S.E.2d 710 (1974). The same is true for a motion for a new trial on the grounds that the evidence is insufficient to justify the verdict. Britt v. Allen, 291 N.C. 630, 231 S.E.2d 607 (1977). Defendant has failed to show an abuse of discretion in the trial court's denial of his motion for a new trial.

The judgment of the trial court is

Affirmed.

BECTON and PHILLIPS, JJ., concur.