Ransom v. Blair

HEDRICK, Judge. Plaintiffs contend the trial court erred in granting defendant Blair’s motion for a directed verdict as to the negligence claim against him. “The standard for entry of a directed verdict is that the evidence, when viewed in the light most favorable to the nonmovant, is insufficient as a matter of law to support a verdict in favor of the non-movant.” Oakley v. Oakley, 54 N.C. App. 161, 163, 282 S.E. 2d 589, 590 (1981) (citation omitted). Plaintiffs’ negligence claim against defendant Blair was predicated upon Blair’s use of defendant Davis to supply and install the vault, and upon Blair’s embalming and interment of the body. All the evidence tends to show that defendant Davis provided the vault, installed it in the grave, and sealed the casket inside. When the vault was discovered askew, full of water, and the casket visible, defendant Davis furnished another vault and purportedly again sealed the casket inside. There is no evidence in this record that defendant Blair did or failed to do anything which proximately caused any damage to the vault. The decision of Blair and Davis at the second burial to not pack dirt around the grave at that time was based on a reasonable belief that the gravesite needed to dry out. Plaintiffs failed to introduce any evidence that this decision constituted negligence. Furthermore, plaintiffs did not show that Blair knew or should have known about any alleged incompetence on the part of Davis. To the extent plaintiffs base Blair’s negligence on the performance of Davis, plaintiffs have not been prejudiced by the directed verdict for Blair on negligence. Nor was there sufficient evidence to submit to the jury the question of whether defendant Blair negligently embalmed or interred the body. The uncontroverted testimony of a medical expert established that the decomposition of the body was within normal bounds. There is no evidence that the body had been negligently prepared or negligently placed in the casket and vault. The trial judge ruled correctly on defendant Blair’s motion for directed verdict as to negligence. Plaintiffs further contend that the trial court erred in granting the motions of defendants Blair and Davis for directed verdicts on the plaintiffs’ claims for punitive damages. Plaintiffs base [76] their claim on defendants’ failure to conduct a satisfactory reburial on 11 May 1978, knowing the distraught condition of the plaintiffs. Blair and Davis made a reasonable and well-intentioned effort to properly rebury the body. Plaintiffs did not prove intentional wrongdoing or wanton and reckless disregard of plaintiffs’ feelings, so no basis for punitive damages exists. In any event, plaintiffs have not been prejudiced because they were not awarded any actual damages. “Punitive damages may not be awarded where plaintiff is not entitled to recover any compensatory damages.” Phillips v. Insurance Co., 43 N.C. App. 56, 59, 257 S.E. 2d 671, 673 (1979) (citation omitted). Plaintiffs contend the trial court erred in not instructing the jury as they requested concerning damages for mental anguish arising from breach of contract. No error occurred because the requested instruction was delivered in substance even though not in the plaintiffs’ exact words. King v. Higgins, 272 N.C. 267, 158 S.E. 2d 67 (1967). In addition, the jury found no breach of contract, so there no longer exists an issue as to mental anguish damages arising from a breach of contract. Plaintiffs also maintain that the trial court erred in allowing defendant Batesville’s motion for directed verdict at the close of all the evidence. Defendant Batesville warranted that its casket was leakproof; plaintiffs’ claim against Batesville was that this warranty had been breached. The plaintiffs’ evidence indicated that some liquid was observed in the bottom of the casket when it was removed from the flooded vault. Other evidence revealed that the casket was floating in the water. Defendants’ medical expert testified that condensation, leakage of body fluids, and leakage of embalming fluids would normally cause some liquid to collect in the bottom of a casket. Plaintiffs did not present any evidence that the liquid was water or that the casket leaked, while defendants demonstrated that liquid in the casket came from the body. There was insufficient evidence to submit to the jury the question of whether Batesville breached its warranty of a leakproof casket. Plaintiffs contend that the trial court erred by instructing the jury that photographs could be considered only as illustrative evidence. However, the plaintiffs failed to object to this instruction as required by Rule 10(b)(2) of the North Carolina Rules of [77] Appellate Procedure; so this Court will not review the instruction. Finally, plaintiffs assert that the trial court should have granted their motion for a new trial based upon the errors discussed above. Because plaintiffs’ contentions are without merit, the trial court properly refused to grant a new trial. No error. Chief Judge Vaughn and Judge Arnold concur.