Robertson ex rel. Robertson v. Stanley

PARKER, Judge. Plaintiff’s sole assignment of error is directed to the denial of his motion for a new trial on the issue of damages. “The granting or the denying of a motion for a new trial on the ground that the damages assessed by the jury are excessive or inadequate is within the sound discretion of the trial judge.” Hinton v. Cline, 238 N.C. 136, 76 S.E. 2d 162. Plaintiff recognizes this well-established rule, but contends that this discretionary,- authority of the judge is applicable only where the jury awards some amount, however small, but not where the jury awards nothing. From this he argues that it was the judge’s duty as a matter of law to set aside the verdict on the third issue. We do not agree. [57] At the outset we note that, although the evidence shows that plaintiff’s injuries were such as to require that he be hospitalized three times and receive substantial medical and surgical treatment, it also shows that his doctor finally discharged him with a diagnosis that he was without any disability other than a scar on his right shoulder. Further, the jury did award damages in the full amount of his medical expenses, though because of his infancy this award went to his father, who had paid those expenses; had plaintiff been of full age, there would have been but one action and one award of damages. Thus, the question presented by this appeal is whether the trial judge’s refusal to set aside the third issue must be held error as a matter of law merely because the jury failed to award plaintiff any amount of damages for his pain and suffering and other noneconomic losses. We hold that the trial judge’s denial of plaintiff’s motion did not constitute error as a matter of law. Plaintiff had the burden of proof on the issue of damages. The weight and credibility of the evidence and the amount of damages to be awarded were for the jury to determine. Though plaintiff presented testimony as to his pain and suffering, the jury was not compelled to accept it. No exception was taken to the charge, and we must presume that the jury was properly instructed. We hold that the trial judge had the discretionary power, but as a matter of law was not compelled, to set aside the jury’s verdict for its failure to include any award of damages for pain and suffering. We also hold that on this record no abuse of the trial judge’s discretion has been shown. He, as well as the jury, observed and heard the witnesses. The case was a close one on the issues of liability. It would have been manifestly unfair to have set aside only the third issue, which was what plaintiff’s motion requested he do, without at the same time setting aside the verdict on the other issues, which plaintiff did not request. We find No error. Judge Britt concurs.