Garrison v. Garrison

• Decision Date: 17 November 1987
• Docket Number: No. 8710SC306,8710SC306
• Citation: 361 S.E.2d 921,87 N.C.App. 591
• Court: North Carolina Court of Appeals
• Parties: Mark Richard GARRISON v. William E. GARRISON, III, and W.E. Garrison Grading Company.

Page 921

361 S.E.2d 921

87 N.C.App. 591

Mark Richard GARRISON v. William E. GARRISON, III, and W.E. Garrison Grading Company.

No. 8710SC306.

Court of Appeals of North Carolina.

Nov. 17, 1987.

David R. Cockman, Raleigh, for plaintiff-appellee.

Maupin, Taylor, Ellis, and Adams, P.A. by John T. Williamson, M. Keith Kapp, and James E. Gates, Raleigh, for defendant-appellants.

BECTON, Judge.

Plaintiff, Mark Richard Garrison, brought this action for personal injuries sustained as a result of a one-vehicle accident during which he was a passenger in a truck driven by defendant William E. Garrison, III, and owned by defendant, W.E. Garrison Grading Company. On 23 October 1986, following three days of testimony, the jury returned a verdict finding that Plaintiff was not injured by the negligence of William Garrison. At a hearing on 27 October 1986, Plaintiff moved in open court, pursuant to Rule 50(b) of the Rules of Civil Procedure, for judgment notwithstanding the verdict, or in the alternative, for a new trial. From an order of the trial court setting aside the verdict and awarding a new trial, Defendants appeal. We affirm.

I

At trial, Plaintiff's evidence about the accident consisted of testimony by two witnesses, Bryan Upchurch, and Trooper M.D. Cash, which tended to show the following.

On 1 February 1975, Plaintiff, then age eight, his sixteen year old brother, William Garrison, and a number of others spent the morning doing landscaping and related work at Aversboro Road Baptist Church in Garner. At lunchtime, the Garrison brothers, Bryan Upchurch, and another boy left to get lunch, and were returning to the church when the accident occurred.

The boys were riding south on Buffalo Road in a pick-up truck driven by William Garrison. Plaintiff sat in the middle seat, Upchurch sat by the door, and the other boy rode in the truck bed. Some other boys from their group were ahead of them in a car. Upchurch testified, "They were trying to outrun us and we were trying to catch them." The truck approached a sharp left curve at a point where the pavement was 18 feet wide and the low shoulders consisted of dirt and gravel. The speed limit was 55 miles per hour, but Upchurch recalled seeing a diamond shaped sign with a lower advisory speed limit. Upchurch testified that, as the truck entered the curve, the right front tire dropped down off the pavement onto the shoulder, and William Garrison jerked the truck back onto the road. The truck travelled across to the left side of the road, struck a driveway culvert, overturned, struck a light pole and a bush, and came to rest on its top. Plaintiff was thrown from the truck and suffered serious injury.

Upchurch opined that the truck was travelling in excess of 55 miles per hour when it entered the curve. According to Trooper Cash, there were 259 feet of tire impressions before the actual impact, and the truck travelled an additional 118 feet, after striking the culvert, to the place where it came to rest.

Plaintiff also offered extensive evidence regarding the nature and extent of his injuries. Defendant presented no evidence.

II

The single question presented for our review is whether the trial court erred by granting Plaintiff's motion for a new trial.

A

Plaintiff premised his motion for a new trial upon the grounds that "the verdict is contrary to all of the evidence and the jury disregarded the court's instructions...." In his oral ruling upon the motion in open court following arguments of counsel, Judge D.B. Herring began: "This is one that has bothered me all weekend. As I recall, the uncontroverted evidence...." The judge then proceeded to summarize the evidence of negligence, after which he concluded:

In the interest of justice, reluctantly I am going to set aside the verdict and order a new trial because I cannot logically see how the jury could have found "no" on the issue of negligence.

I had really thought at the outset that negligence might be stipulated. I note, also, that there was a lawyer on the jury in addition to an insurance agent who sells liability insurance. (Emphasis added)

The subsequent written order stated, in pertinent part, that the Court was awarding a new trial "in its discretion and in the interest of justice." (emphasis added) This fact controls the scope of our review of Judge Herring's action. See Worthington v. Bynum, 305 N.C. 478, 481, 290 S.E.2d 599, 602 (1982).

B

It is a well established rule in this jurisdiction that a trial judges' discretionary decision to deny or grant a new trial upon any ground may be reversed on appeal only when the record affirmatively demonstrates a manifest abuse of discretion. E.g., Bryant v. Nationwide Mutual Fire Insurance Co., 313 N.C. 362, 329 S.E.2d 333 (1985); Worthington v. Bynum. Only when the trial court grants or refuses to grant a new trial due to some error of law in the trial is its decision fully reviewable. See Bryant at 381-82, 329 S.E.2d at 344-45, Worthington 305 N.C. at 483, 290 S.E.2d at 603. Further, the scope of appellate review of a trial judge's exercise of the power to grant a new trial was not enlarged by the adoption of the Rules of Civil Procedure. Worthington at 482, 290 S.E.2d at 602.

C

Defendant first argues that the trial court made an error of law, fully reviewable on appeal, by granting a new trial on the improper ground that there was a lawyer and an insurance agent on the jury. However, the judge's comment on the composition of the jury does not indicate to us that this reflection formed the basis for his decision. If such were the case, the award of a new trial would constitute clear error, particularly since the parties presumably examined the jurors prior to trial and were satisfied with them. However, based upon our review of the evidence, the judge's comments, and the order itself, we are convinced that the judge awarded a new trial based on his belief that the verdict was against the weight of the evidence and that it was in the interest of justice to do so. These are grounds which have traditionally afforded bases for a trial court's discretionary authority to award a new trial. See, e.g., Selph v. Selph, 267 N.C. 635, 148 S.E.2d 574 (1966); Walston v. Green, 246 N.C. 617, 99 S.E.2d 805 (1957).

D

Defendant's remaining arguments are based on a premise that there are two varieties of motion for a new trial, and that, although the grant of a new trial under Rule 59(d) of the Rules of Civil Procedure may be overturned on appeal only if the trial court has abused its discretion or committed an error of law, a new trial motion under Rule 50(b) is subject to a stricter standard. These contentions are without merit.

Defendants first maintain that a trial court may not grant a new trial under Rule 50(b) unless the movant would have been entitled to a judgment notwithstanding the verdict. However, the federal case law relied upon by Defendants imposes that limitation only in cases in which the new trial was not ordered within 10 days of entry of judgment pursuant to Rule 59(d), and in which the party moving for judgment notwithstanding the verdict did not also move for a new...