REDEVELOPMENT COM'N OF CITY OF DURHAM v. Holman

226 S.E.2d 848 (1976) 30 N.C. App. 395

REDEVELOPMENT COMMISSION OF the CITY OF DURHAM
v.
Margaret G. HOLMAN (widow) et al.

No. 7514SC942.

Court of Appeals of North Carolina.

August 4, 1976.

Edwards & Manson by Daniel K. Edwards, Durham, for petitioner.

Eugene C. Brooks, III and Richard N. Watson, Durham, for respondents.

MARTIN, Judge.

Petitioner contends that the trial court erred in allowing respondents' motion for a remittitur and refusing to grant the petitioner's motion for a new trial.

While it is generally stated that the judgment should follow the verdict, Bethea v. Kenly, 261 N.C. 730, 136 S.E.2d 38 (1964), the court has the power to reduce the verdict of its own motion so long as the party in whose favor it was rendered does not object. Cohoon v. Cooper, 186 N.C. 26, 118 S.E. 834 (1923). See Caudle v. Swanson, 248 N.C. 249, 103 S.E.2d 357 (1958). This practice of remittitur with the successful party's consent, as in the case here, has been followed for many years by the courts in this State, and under G.S. 1A-1, Rule 59, the practice is still permissible in our courts. 2 McIntosh, North Carolina Practice and Procedure 2d (Phillip's Supp. § 1596, p. 58). See 11 Wright and Miller, Federal Practice and Procedure, § 2815, pp. 99-100. Concerning contentions that this practice denies petitioner his constitutional right to a trial by jury, it would appear that such procedure does not so deprive him, "because he will pay less under such procedure than the amount which a jury awarded by its verdict against him, and he will pay no more than a reasonable jury might award against him." Caudle v. Swanson, supra, at 256, 103 S.E.2d at 362.

As to the argument that the verdict in the amount of $59,471.00 exceeded a sum supported by competent evidence, we note that while the verdict in the instant case exceeded competent evidence, the judgment is based on competent evidence. The voluntary reduction of respondents' recoveries as established by the judgment was not prejudicial to petitioner. Further, in Harvey v. R. R., 153 N.C. 567, 69 S.E. 627 (1910), the majority stated that when a jury's verdict exceeds the evidence, the decision to grant a new trial is in the discretion of the trial judge, and the appellate court will review the trial judge only if it appears he grossly abused his discretion. Here there is nothing to indicate that the judge abused his discretion.

We conclude that in this particular case, where the judgment was supported by competent evidence and was in accordance with the amount a reasonable jury might award, and there was no abuse of discretion on the part of the judge, the court was correct in allowing respondents' motion for a remittitur and refusing petitioner's motion for a new trial. Therefore, the judgment appealed from is

Affirmed.

BROCK, C. J., and VAUGHN, J., concur.