Yeargin v. Spurr

HEDRICK, Chief Judge.

Plaintiff first argues that the trial court erred in denying his motion to set aside the verdict of actual damages because such damages were not supported by the greater weight of the evidence. Plaintiff is not contending that the evidence was insufficient to go to the jury, such challenge must be made through a motion for a directed verdict. Instead, he is contending that the evidence did not support the verdict of $1,000.00 because no evidence of the fair market value of the cows was presented at trial, and his motion under G.S. 1A-1, Rule 59 should have been granted.

G.S. 1A-1, Rule 59(a)(7) provides that a new trial may be granted on the grounds of insufficiency of the evidence to justify the verdict. A motion under this rule is addressed to the sound discretion of the trial judge, whose ruling, absent abuse of discretion, shall not be disturbed on appeal. Goble v. Helms, 64 N.C. App. 439, 307 S.E. 2d 807 (1983), disc. rev. denied, 310 N.C. 625, 315 S.E. 2d 690 (1984). “[A]n 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.” Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 482, 290 S.E. 2d 599, 602 (1982). There was evidence at trial that the cows were worth $1,000.00. Plaintiff has not shown any abuse of discretion in Judge Allen’s denial of his motion.

In his next assignment of error plaintiff argues that the trial court erred in denying his motion to set aside the award of punitive damages.

In general, punitive damages are allowed in a tort action where the tortious conduct is accompanied by an element of aggravation, such as fraud, malice, recklessness, oppression, insult, rudeness, caprice or willfulness. Newton v. Insurance Co., 291 N.C. 105, 229 S.E. 2d 297 (1976). Plaintiff contends that there was no evidence of any of these elements of aggravation introduced at trial. The only procedure by which the adverse party can challenge the sufficiency of the evidence to go to the jury is by a motion for directed verdict under G.S. 1A-1, Rule 50. Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297 (1971). Plaintiff did not move for a directed verdict or judgment notwithstanding the verdict; therefore, he has waived his right to challenge the sufficiency of the evidence to support defendant’s counterclaim for punitive damages. This assignment of error is overruled.

For the reasons stated above, the judgment of the trial court is

Affirmed.

Judges WHICHARD and JOHNSON concur.