Kuyrkendall v. Clark's Discount Department Store

5 N.C. App. 200 | N.C. Ct. App. | 1969

Campbell, J.

The defendant presents twenty-seven assignments of error. However, we will refrain from discussing all of them since we think a new trial is required and many, if not all, of these various assignments of error may not occur again.

We are of the opinion that the trial judge committed prejudicial error in his charge on the issue of compensatory damages.

In the complaint the plaintiff alleged that by reason of her detention and imprisonment she was “subjected to great indignities, humiliation and disgrace” and “greatly injured in her credit and circumstances, and was caused to suffer such pain in both mind and body, for all of which she has sustained damages in the amount of $25,000.00.”

In the evidence offered by the plaintiff to sustain a recovery of compensatory damages, there was no showing of any loss of earnings. In fact, the plaintiff’s testimony was to the effect that she lost no time from her employment, and she was still doing the same work which she had been doing at the time of this incident. She testified that she was scared and very nervous and was worried by this incident; she had crying spells for several days thereafter; she went to see a doctor some three or four days thereafter and “he gave me ... a green liquid nerve medicine. I took one bottle of it”; she lost some sleep during a period of three or four nights because “I was worried about that incident. That problem of nerves, and so forth, lasted around two months”; she felt self-conscious of people looking at her in different stores when she went shopping. A friend of the plaintiff observed her coming out of the defendant’s store immediately after this incident. The friend described her at that time as being “real shook up, real nervous. She appeared differently than she had at the time I saw her previous to that in the store at the sock counter. She was real pale and scared to death.”

In describing this incident, the plaintiff testified that no one put a hand on her and that

“[o]ther than talking to my friends about it, there wasn’t anyone who knew about this incident outside of the detective there in the store. Anyone that learned about this . . . has learned about it from me. As far as my credit rating being damaged, I don’t know of that happening. . . .”

She further testified that her “credit hasn’t actually been damaged in any way since this incident”.

In the light of the allegations in the complaint and the evidence introduced by the plaintiff, it was incumbent upon the trial judge “to give the jury sufficiently definite instructions to guide them to an intelligent determination of the question.” Kee v. Dillingham, 229 N.C. 262, 49 S.E. 2d 510. Adams v. Service Co., 237 N.C. 136, 74 S.E. 2d 332.

On the issue of compensatory damages, the trial judge instructed the jury that they could consider, in awarding damages, such elements as “prospective” injuries; “bodily pain”; “injury to fame, reputation and character”; “general impairment of social and merchantile standing”; “injury to credit”; “deprivation of use of property”; and “decrease in her earning capacity”. The trial judge charged:

“Members of the jury, that verdict may be any amount from one cent to $25,000, or any amount in between.”

Neither the allegations in the complaint nor the evidence on behalf of the plaintiff justified the charge as given by the trial judge.

G.S. 1-180 provides:

“No judge, in giving a charge to the petit jury, either in a civil or criminal action, shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury, but he shall declare and explain the law arising on the evidence given in the case. He shall not be required to state such evidence except to the extent necessary to explain the application of the law thereto; provided the judge shall give equal stress to the contentions of the plaintiff and defendant in a civil action, and to the State and defendant in a criminal action.”

In Cummings v. Coach Co., 220 N.C. 521, 17 S.E. 2d 662, the trial judge committed prejudicial error by referring to a hospital bill for $118.00 in the charge to the jury when there was no evidence in the record of any such bill.

It has likewise been held to be error to charge on an abstract principle of law not supported by the evidence. Pressley v. Pressley, 261 N.C. 326, 134 S.E. 2d 609.

Applying these principles to the instant case, it would seem that the charge of the trial judge failed to give to the jury a rule of damages supported by allegations and evidence.

New trial.

BROCK and Morris, JJ., concur.