*1 IN THE SUPREME COURT Worthington Bynum v. v.
ment of the crime and there is charged conflicting no evidence any relating charged element v. Harvey, crime. State S.E. 2d 706 The State’s evidence is positive and there is conflicting no evidence relating to the element of the crime rape by here referred to defendant. That serious per- injury was Mrs. upon by sonal inflicted Shaw this incident left question without presented. The evidence beaten, Mrs. severely established that Shaw had been resulting arm, multiple and a large contusions bite her on abra- multiple face, on sions her one and one-half inch laceration long on the left side her scalp, legs, abrasions on both and fractured ribs on her left side. Defendant’s contention injury such seventy-eight-year-old by anyone woman could be considered on any jury anything less than “serious personal injury” as con- templated very the statute comes close insulting the in- telligence of this Court. The trial court did properly not submit Likewise, the lesser included offense of second degree rape. attempted defendant’s contention that degree second rape should have been submitted must fail. also
III. trial, We conclude that defendant received fair free prejudicial error. No error.
BEN F. WORTHINGTON v. WILLIAM ANDERSON BYNUM COGDELL,
JESSE JR. WILLIAM ANDERSON BYNUM
No. 125A81 (Filed 1982) May — § ground 59— Rules of Civil Procedure on awarded excessive no abuse of discretion judge’s discretionary pursuant A trial order to G.S. Rule 59 for or may upon any ground appeal a new trial be reversed on in those Therefore, exceptional clearly where cases an abuse of discretion shown. reversing using Court of erred in a Rule 59 order the standard in *2 (1978) Mercer, App. 243 S.E. 168 find the verdicts 36 N.C. 2d Howard v. arising a accident were the maximum out of motor vehicle “within for attempts range.” extent Howard Mercer limits of a reasonable To the 59(a)(6), Buie is over- what abuse of discretion is under to define a reversible Further, concluding Appeals there was “no the Court of erred in ruled. adequate grounds support suggest” the existence of for new trial. his discretion to defendant’s motion for exercise of participate in consideration or decision of Justice Mitchell did not case. concurring. Justice Carlton Meyer joins concurring opinion. in this
Justice dissenting. Justice Britt 7A-30(2) G.S. from the by pursuant defendant APPEAL Becton, Judge with Appeals, (Judge the Court of
decision of dissenting), and Martin concurring, Judge Whichard Robert 409, 281 166 In a 2-1 deci- S.E. 2d App. at N.C. reported Peel, sion, by an order reversed Court Court, PITT Superior May entered at the Civil Session under G.S. County, defendant’s motion granting the and plaintiffs for the jury set aside the verdicts award trial. were Cogdell passengers and Worthington
Plaintiffs another vehicle driven defendant which with vehicle collided filed May subsequently separate 1977. Plaintiffs Bynum on injuries personal their regarding defendant complaints $250,000 Worthington sought accident. Plaintiff arising out of the sought Cogdell likewise damages, plaintiff in compensatory $200,000. for trial. The cases were recovery two consolidated stipulated.1 occurrence was tragic in the negligence Defendant’s was what amount of jury’s determination issue for the was Defendant were entitled to recover. plaintiffs damages the trial, personally appear he did not at but counsel represented during proceedings. court A highly the time of the accident. intoxicated 1. Defendant defend- breathalyzer hours after the wreck showed to him three test administered cases, percent. civil .21 Prior to the trial these to be ant’s blood alcohol content stop stop at a charges of failure to pleaded guilty criminal to the defendant had plaintiffs were driver of the car which sign vehicle. and death motor [The riding was killed in collision.] IN THE SUPREME COURT days, For five plaintiffs presented jury evidence to the about injuries. the nature and of their Six extent medical experts testified for plaintiffs. Defendant did offer independent however, trial; evidence at his counsel did elicit evidence through the cross-examination of plaintiffs’ witnesses. court,
After receiving instructions thirty deliberated for minutes and returned verdicts against $175,000 $150,000 plaintiff defendant of Worthington and moved, plaintiff Cogdell. Defendant thereupon pursuant to Rule (7) (6) 59(a)(5), Procedure, of the Rules of Civil for the trial *3 court to set aside the verdicts and award a new in trial both Judge cases. Peel took the matter under advisement for few days. arguments by He then heard counsel on the motion on May 1980. At the conclusion of the Judge Peel hearing, stated the following:
I I got have bunch of notes I made last night that took from the evidence.
Gentlemen, I don’t intend catalog, but time and again I tried to jury instruct to disregard things that seemed improper me to be that kept coming up. It was an ex- tremely I volatile situation. am jury satisfied that I, disregarded completely many my of instructions. don’t in understand that view all my of the evidence. is It opinion am, that therefore, verdict in each of the cases was I excessive and Gaylord Mr. ordering to prepare an order prepar- ing each plaintiff. [Record 245.] counsel, Gaylord, Defendant’s Mr. thereupon prepared an order motion, Rule 59 granting the Judge and Peel 27 May signed on 1980. In pertinent part, that provided order as follows:
And it being made appear to the Court and the Court in its considered discretion being the opinion that the Mo- by tion filed defendant each case under 59 of the North Carolina Rules of Civil Procedure should be allowed . . . granted NOW, THEREFORE, COURT, IN THE DISCRETION OF THE IT IS ORDERED, ADJUDGED AND DECREED: by That the Motion made defendant each case FIRST: pursuant to the provisions of Rule of the North Carolina Rules of Civil Procedure be and hereby the same is granted.
SECOND: That the issue each of these cases jury as answered hereby aside set and a new is granted defendant in each case as to the issue of at 250-51 damages. (emphases added).] [Record Plaintiffs excepted entry to the of the foregoing order and sought review in the Court of Appeals. The Appeals, Court of Becton, reversed the trial court’s defendant’s motion for new trial and remanded cause en- for try judgment in accordance with the verdicts. Defendant appeals from that decision. James, Hite, Blount, Cavendish & M. E. Cavendish and Blount, Jr.,
Marvin plaintiff-appellees. Jr., Gaylord, & Singleton McNally, by L. W. Gaylord, llant. defendant-appe COPELAND, Justice.
A single question presented for our review: Did the Court err in reversing Judge Peel’s order for trial? *4 We hold that it did and reverse.
Defendant’s counsel moved for a new upon trial the grounds instructions, jury manifestly that disregarded the the court’s that the awarded excessive under the influence pas- sion and prejudice, and that the evidence was insufficient justify the verdict or verdict was contrary that the to law. G.S. (6) (7). 59(a)(5), Peel Judge the ex- acknowledged istence of grounds those his oral ruling upon defendant’s mo- However, in open tion court. Peel Judge he also said that did not intend all “to of his catalog” reasons and his expressed “extremely the entire situation had been volatile.” The nature of Judge ruling Peel’s in defendant’s favor was subse- which, quently clarified in the written order after defend- reciting motion, ant’s for grounds the stated that the court was awarding (and as a new trial matter “its considered discretion” thus law). as a not matter of This fact is significant for it controls the of our review scope Peel’s action.
482
v.
v.
jurisdiction
appellate
in our
has been
settled
long
It
discretionary ruling
grant-
either
judge’s
review of
trial
court’s
aside a verdict
order
a motion to set
ing
denying
of whether the record
strictly
limited to the determination
by
affirmatively
a manifest abuse of discretion
demonstrates
59,
676,
Chambers,
53,
157 S.E.
680
272
2d
v.
N.C.
Goldston
judge.
629,
Russell,
(1967);
146 S.E.
813
266
2d
v.
N.C.
e.g., Bryant
see
(1962);
668,
(1966);
127 S.E. 2d
257 N.C.
Taylor,
v.
Robinson
(1961);
578,
v.
While the case, mere inclination determined not to be given in an ef- enlightened judgment a sound and judge, but law, namely, of even doing all attain the end of fort to *5 it, yet supervise except, we will not justice, and exact arise; circumstances, likely at all to in extreme perhaps, unlimited. practically and it is therefore (1902), 488, 489, Bradburn, 42 S.E. N.C. In Bird discre- leaving the several sound reasons espoused the Court IN THE SUPREME COURT tionary set power to aside a exclusively verdict almost in the hands and of supervision the judge presiding over the trial: of
The the court power to set aside the verdict a mat- inherent, ter of always discretion has necessary been and is to the proper justice. administration of is judge not a moderator, trial, mere but is an of integral part the and when he perceives justice has not been duty done it is his set aside the verdict. His discretion to do so is not limited to cases which there has been a justice by of miscarriage reason of the verdict having against been weight the of the (in which, course, he will be reluctant set his twelve), opinion that of against but may he perceive that there has prejudice been in the community which has af- themselves, fected the jurors, possibly unknown to but perceptible usually to the judge —who a stranger a—or very lawyer able has procured an an advantage over inferior one, him, advantage legitimate enough in but which has brought about result which the judge contrary sees is such, justice. In and many other instances which would not verdict, furnish a ground to set aside the legal discretion reposed judge should be to bear brought justice. secure the administration exact Black, (1876), Brink v. had verdict, set aside the “because in his opinion it was evidence,” weight of the and had a new trial. The granted to our question presented whether review of the Court available. judge’s order was Justice Reade answered that: When a at a trial below presiding grants refuses to a new trial because some of “law question decides, or legal inference” which he party and either with his in- legal dissatisfied ference, decision of matter of law from, may appealed may his decision be we that, review it. But when he is of considering witnesses, intelligence, number of their their opportunity truth, character, their their on knowing the behavior the ex- amination, sides, all the circumstances on both side, clearly evidence is on one is it weight prac- how it, can advan- ticable that we review unless we had the same had, tages? try even if we we cannot facts. And *6 484 Bynum Cogdell Bynum
Worthington
v.
v.
(1937),
249, 250,
19
193 S.E.
212 N.C.
Edwards v. Upchurch,
In
ver-
aside the
failure to set
lower court’s
reversed the
the Court
.had a
and said that
a new trial
and order
dict
injustice “when
power
prevent
such
duty to exercise
manifest
in his
evidence or is
supported
is not
the verdict
the evidence.”
weight
against
(1907),
248, 250,
1082,
R.R.,
S.E.
1083
145
58
v.
N.C.
Boney
In
evidence,”
“who heard the
judge,
Court stated that
our
if he thought
aside the verdict
power” to set
had the “corrective
was a
amount of
though
even
it was excessive
“[t]he
judges.”
which
were the
of fact of
matter
sum,
pur-
order
judge’s
is
a trial
plain
it
any
upon
59
a new trial
for or
suant to G.S.
cases
exceptional
in those
may
appeal
be reversed on
ground
v.
clearly
shown. See also Scott
discretion
where an abuse of
(1966);
574,
18
v.
265
Boyce,
151 S.E. 2d
Sherrill
268 N.C.
Trogden,
Greene,
617,
(1965);
560,
v.
N.C.
Walston
144 S.E. 2d
N.C.
Francis,
(1957);
Sons,
Inc. v.
N.C.
Frye
In the first place, the Court of Appeals improperly subjected
Peel’s
Judge
order
to much broader appellate
scrutiny,
in one
than
respect,
that previously permitted in our
jurisdiction. The Court of Appeals reversed the Rule 59 order in
part because it found that the damages awarded to plaintiffs were
not excessive since the amounts of
clearly
“both verdicts were
within the maximum
a
limits of
reasonable
53
range.”
N.C. App.
414,
at
281 S.E. 2d
171. In
at
so
doing,
of Appeals
Court
relied
Court,
Mercer,
upon a prior opinion of its
Howard v.
36
App.
N.C.
67,
168,
466,
243 S.E. 2d
discretionary review
granted,
N.C.
(1978)
Secondly, the erroneously Court of Appeals concluded that there was “no evidence to support suggest” the existence IN THE SUPREME COURT Peel’s exercise of his discretion to grounds Judge adequate a new trial. See 53 at App. defendant’s motion for N.C. added). 173 (emphasis reading
281 S.E. 2d at From our of the we are led to believe that that Court Appeals’ opinion, Court judg- to be its own better substituted what it considered simply in the case and did not concerning the need for ment strictly cause singular review the record for the clearly abused his discretion in that Peel had whether much evidence which plaintiffs presented It true that regard. injuries from the accident were severe showed that substantial, their recovery surely warranted a large and this 412-14, 281 S.E. 2d at App. them. See However, which suggested 170-71. there was also evidence *8 $325,000 was much. recovery plaintiffs for the too combined expenses medical were plaintiffs’ total example, For $17,634.10, any absences they during did not lose income their work, same after employer continued to work for the both in due to recovery pay position and did not suffer loss their accident, they in disabilities received the permanent, partial the had recovered well from plaintiffs and testified that both doctors have little and should not injuries, experiencing pain were their jury light, Viewed in this it seems that the in the future. pain $300,000 pain, suffering resulting over awarded plaintiffs ^and circumstances, say, we as a simply In cannot disabilities. these law, Peel far in that there finding went too matter of jury’s award and that the support was insufficient evidence to the addition, In it is not inconceivable on this large. award was too influence jury awarded these “under the record that the 59(a)(6). with, To start prejudice.” G.S. passion “extremely had been volatile.” said that Peel the Judge Moreover, was be remembered that this serious accident it must Thus, up even show at trial. by a drunk driver who did not caused this absent de- jury trying punish the possible the over-compensating conduct reprehensible for his fendant Finally, practically impossible we find it plaintiffs.3 innocent jury have his belief that the must Peel about second-guess Judge in arrive at these many his instructions order to disregarded that, complex although respect, the had listened to we also note 3. In this days, they defend- testimony substantial verdicts five returned medical only thirty in minutes. ant and verdict amounts. This is especially so since Judge Peel did not list event, what any those instructions were. In while we agree with Court of the loss of sexual function or teeth were proper elements of plaintiffs’ damages,4 the rule is general that a contrary verdict which is to the court’s instructions can be aside set even those instructions were “unsound in law.” 66 if New C.J.S. Trial We therefore sustain Judge §§ Peel’s exercise his discretionary power to order a new trial. conclusion, we note that the trial judges of this state have traditionally exercised their power civil cases quite sparingly proper deference to the finality sanctity jury’s of the findings. We believe that our appellate courts should place great faith and confidence in the decision, ability of our trial judges to make right fairly without partiality, regarding necessity for new trial. Due to trial, their active participation their first-hand acquaintance with the evidence presented, their observances of parties, witnesses, involved, jurors attorneys and their circumstances, knowledge of various other attendant presiding judges have the superior advantage in best what this, justice requires in case. certain Because of we find much many wisdom the remark made years ago Justice Liv- ingston of the United States Supreme Court that “there be would danger injury more in revising matters kind of this than what might arbitrary result now and then from an or improper exercise *9 (6 Cranch) of this discretion.” Insurance Co. 10 U.S. Hodgson, 206, 218 Consequently, appellate court should not a discretionary disturb reasonably order unless con- vinced the cold record judge’s ruling the trial probably amounted to substantial miscarriage justice. We hold that this is not such a case. reasons, all
For foregoing decision of the Ap- Court of is reversed peals to the end that Peel’s original order for a may new trial be reinstated. The cause is remanded Court further proceedings not with this opin- inconsistent ion. re-trial, jury’s 4. On these matters should be admitted for the
evaluation and consideration. IN THE SUPREME COURT
Worthington v.
Reversed and remanded. in the consideration or participate did not
Justice Mitchell decision of this case. concurring.
Justice Carlton add, I majority. I wish to concur the result reached however, necessarily damages I that the award- agree do My agreement vote is based on ed these were excessive. plaintiffs with majority judge with the that the trial should be entrusted on 59 motion. An discretionary ruling ap- broad a Rule power it, court, the case on the cold record before reviewing pellate discretionary an able trial on a judge’s ruling should not disturb merely it believes some other award for matter because rulings would be more Reversals of such should oc- appropriate. manifestly it is the trial abused judge cur when clear that his discretion.
I expressed am to the view dissent that a sympathetic of review would be The preferable. prob- more standard specific lem is that I have not seen a standard meaningful suggested. suggest meaningful Until such time someone can a more than the nebulous one of whether an standard award limit I range,” was within “the maximum reasonable would stay majority with vote. prefer to only condition that I would place upon exercise of discretionary majority the broad would be power approved require specify ground grounds upon is based. ruling which his This would amount to no requirement would, real limitation of the trial judge’s power and time, at the same enable appellate courts to determine more ac- curately whether an abuse discretion has been committed. Meyer joins
Justice in this concurring opinion. BRITT dissenting.
Justice I respectfully majority dissent from the opinion and vote affirm the decision of the of Appeals. Court *10 majority with the opinion begins premise that “it has long jurisdiction been settled in our that an court’s appellate and discretionary ruling granting either review of a trial trial is set a verdict and order a new denying a motion to aside of whether the record affirm- strictly limited to the determination abuse of atively manifest discretion demonstrates to 1 numerous of this court decided judge”, prior decisions citing January 1A of the Chapter the effective date of General Statutes, of I that agree quoted the Rules Civil Procedure. more than 100 jurisdiction statement was the rule in this for However, years. in the of the new objectives one of adoption of our Rules Procedure was to update operation of Civil and, of civil to make them hopefully, courts in the trial cases of the Philosophy more and Scope efficient. See General generally (1969). Rules, New Wake Intra. Law Rev. 1 Forest 1A, in of this court Very soon after the effective date G.S. Duke, (1970), in opinion Sutton v. 277 N.C. 176 S.E. 2d Justice) (later our rules are Sharp, Justice Chief observed that “in procedure, the federal rules of civil modeled after with enumera- they copies most are verbatim the same instances further tions.” The court stated and, rules
Since the federal the New York presumably, NCRCP, will are source of we look to the decisions we for jurisdictions enlightment guidance those new rules.” “the of the develop philosophy 101. at go in civil state first virtually appeals Since all cases necessary has to the that court found Appeals, Court the new many pro- rules of civil interpret apply cases course, this court. Of guidance precedent cedure without “final if the case it. this court has the word” reaches very at hand close- Appeals in the case followed The Court Mercer, ly App. of that 36 N.C. court Howard decision 67, 243 of the S.E. 2d As a member Court time, While this I the author of the Howard. was review, granted petition court a petition before was ren- petitioner withdrawn on motion a decision Howard, dered this court. the court out that “a pointed review of the law in North does not reveal a standard Carolina what is a abuse of discretion to warrant sufficient
490 IN THE SUPREME COURT
Worthington Bynum v. and v. a reversal of a 59 ruling trial court’s on a Rule in motion which a new trial was granted.” The court then elected a adopt stand Co., in Taylor ard established 409 F. Washington Terminal 2d (D.C. Cir.), denied, cert. 396 U.S. 24 S.Ct. L.Ed. 2d (1969), under decided Federal Rule which is similar to North Rule 59. We quote Carolina from the in Taylor: jury particular
Where the finds quantum of damages and judge refuses to disturb its on finding the mo- trial, tion for a new tion, two press factors in the same direc- appellate
and an court should be certain indeed that the contrary award is to all reason it before orders a remittitur However, where, here, aor new trial. jury as as primary a quantum, fact-finder fixes trial indicates his judge remittitur, view that granting excessive the two factors each The oppose judge’s unique other. opportunity to consider the evidence courtroom living context must be But his respected. we judgment must consider the agency to whom the Constitution allocates the fact- finding jury function the first instance —the evaluat- —has ed differently. the facts jurisdiction In particularly, judges District Court jury have given great weight They verdicts. have stated that a new will not granted trial motion be unless the “ver- unreasonably dict is so as high to result a miscarriage of or, justice,” recently, most unless the verdict is “so inor- obviously dinately large to exceed the maximum limit of a range jury reasonable may properly within which the operate.” level, in appellate reviewing
At the trial judge’s grant verdict, of a new we trial for excessive should apply same standard. trial view that a verdict out- side the proper range deserves considerable deference. His exercise of discretion in granting motion is reviewable only for abuse. Thus we will reverse of a quantum for excessive verdict where the of damages clearly found was within “the maximum limit of a 409 F. 2d 148-149. range.” reasonable Howard, the Court of concluded that the verdict clearly within “the maximum limit reasonable range”, THE IN SUPREME COURT was given the verdict appearance was no there the court thereupon passion prejudice; influence of under the aside the setting abused his discretion held that the *12 verdict. majority concluded that
In case at hand the the discre- “as a of ‘its considered a new trial matter court awarded law).” (and is clear being true it as a matter of That thus not tion’ 59(a)(6) for a under awarded new trial trial court that the have been given to damages appearing inadequate “excessive or prejudice.” of or passion under the influence many has had while court that this majority concludes when for test “precise” to formulate opportunities grant or “in the trial discretion has occurred an abuse of trial”, it has not “found a new the court for denial of a motion define what an abuse of necessary wise to attempt or logically any concerning ground upon in abstract be the might discretion I that this Although agree may be granted.” a new trial which test, I that this agree do not such has not formulated court reviewing for establish standard not at this time court should of decision. type in his expressed Whichard’s views Judge fully I with agree out that pointed hand. He in the case at concurring opinion “establishes, denying granting the standard Howard issue of a new trial on the and order aside a verdict to set motion was within the max- verdict whether the the test of damages, was within the If verdict range. the limit of a reasonable imum be motion should range, the of a reasonable maximum limit not, be granted.” If the motion should denied. Howard, in to be established sought standard the Applying hand, Judge case in the Appeals by the Court
and followed injuries plain- sustained meticulously enumerated the Becton in they endured and discomfort pain and described tiffs were I verdicts that agree medical treatment. receiving range. a reasonable limit of maximum within the that the conscien- concern addressed the Becton also been committed law had errors of indicated that tious trial I agree presented, is not question trial. While that during the law any errors of appears the Court with Security Employment v. Lachman Commission defendant, therefore, were favorable to he position no complain. view, my of the standard adoption discussed above would justice
result in even-handed more citizens the various sec- tions of North Carolina. The population of counties of our 3,975 eastern, vary Tyrrell state now rural predominantly 404,270 Piedmont, County highly urbanized Mecklenburg County.1 I believe that the standard would aid the divi- appellate sion citizens ascertaining that from all areas of our state equal receive “the laws.” protection Finally, majority suggests that in case at hand “it is . . . inconceivable awarded these damages ”, ‘under the influence passion one of prejudice’ grounds 59(a)(6). awarding trial under Rule The record discloses *13 plaintiffs the wreck in which were following injured defend- .21. Considering ant’s blood alcohol content was the carnage that state, causing intoxicated drivers are on the highways of our my juries never hope that will cease to view with some disfavor to drive those who elect motor vehicles while intoxicated. EMPLOYMENT SECURITY OF NORTH COMMISSION CAROLINA BETTY LACHMAN 146A81
No. (Filed 1982) May § Employment Security 1. State 12— dismissal employee juris- Commission — grievance appeal diction of State Personnel Commission over employee Employment Security An of the competitive Commission was a employee required service continuously thus to have been by employed years the State five grievance in order to avail herself of the Therefore, procedures employees established for State G.S. Ch. 126. jurisdiction State Personnel Commission had under G.S. 126-34and 126-39to employee’s appeal consider the Employment from her dismissal Securi- ty although the Commission failed to show that she had been years employed immediately five preceeding State for her dismissal. Manual, 1981, 1. pp. North Carolina 129-30.