Love v. Hunt

HEDRICK, Judge. All of the assignments of error brought forward and argued in plaintiff’s brief relate to the issue of damages for personal injury. [676] Based on exceptions 2 through. 8, plaintiff contends the court erred in excluding testimony that: (1) Six used cars which plaintiff purchased to repair and resell depreciated $1,500.00 in value from 3 October 1970 until February, 1971; (2) While plaintiff was employed as sales manager of J. C. Parker Motors in Winston-Salem two months before he became self-employed, he earned commissions of $10.00 or $15.00 on each automobile sold, depending upon its selling price; and (3)Plaintiff lost $1,500.00 from his “own business” from the date of the accident to the end of the calendar year. In his brief, plaintiff asserts: “[E]vidence of lost profits and depreciation of assets of the personal, one-man, business of the plaintiff-appellant . . . should have been admitted to furnish as a safeguard for the jury to help it in determining the pecuniary value of loss of time or impairment of the plaintiff-appellant’s earning capacity.” While evidence of a loss of business or the net income of a business may be competent and admissible in certain personal injury cases as an aid in determining the pecuniary value of the loss of time or the loss or impairment of earning capacity, Smith v. Corsat, 260 N.C. 92, 131 S.E. 2d 894 (1963); Jernigan v. R. R. Co., 12 N.C. App. 241, 182 S.E. 2d 847 (1971), under the circumstances of the present case, where plaintiff had been in business for only two months prior to this injury and had no record of profit or loss before the accident, we cannot perceive that evidence tending to show that his business lost $1,500.00 and that the six automobiles he had purchased to repair and resell had depreciated $1,500.00 in value during plaintiff’s disability, would be of any aid in determining the pecuniary value of loss of time or loss or impairment of earning capacity. Moreover, plaintiff was allowed to testify, without objection, that he had no income from his own business during his incapacity, and that his business “wound up with a loss” for the year 1970. Plaintiff was allowed to testify as to his gross income for the years 1969 and 1970. The exclusion of testimony as to the type commission plaintiff received on each car sold while em [677] ployed by J. C. Parker Motors cannot, therefore, be considered prejudicial. Based on assignments of error 5, 6, 7 and 8 (exceptions 9 and 10), plaintiff contends the court failed to declare and explain the law arising on the evidence as to damages for personal injuries as required by G.S. 1A-1, Rule 51(a) of the North Carolina Rules of Civil Procedure. It is apparent that Judge Gambill based his charge on the issue of damages for personal injury upon the charge approved in Hunter v. Fisher, 247 N.C. 226, 100 S.E. 2d 321 (1957). After reviewing the evidence in detail as to plaintiff’s injuries, including evidence as to sears on plaintiff’s face, Judge Gambill instructed the jury substantially in accordance with the charge approved in the Hunter case. Where the court reviews in detail evidence of plaintiff’s injuries, the failure of the court to repeat such evidence in enunciating the rule for the admeasurement of damages for personal injury is not error. 3 Strong, N. C. Index 2d, Damages, § 16. We hold that plaintiff had a fair trial free from prejudicial error. No error. Chief Judge Mallard and Judge Morris concur.