Bowden v. Latta

• Decision Date: 06 October 1994
• Docket Number: No. 541PA93,541PA93
• Citation: 337 N.C. 794,448 S.E.2d 503
• Court: North Carolina Supreme Court
• Parties: Frank Newcombe BOWDEN, Administrator of the Estate of Donna Ellyn Brooky v. William Dudley LATTA, JR., and William Dudley Latta, Sr., d/b/a W.D. Latta & Sons Trucking.

Page 503

448 S.E.2d 503

337 N.C. 794

Frank Newcombe BOWDEN, Administrator of the Estate of Donna Ellyn Brooky v. William Dudley LATTA, JR., and William Dudley Latta, Sr. d/b/a W.D. Latta & Sons Trucking.

No. 541PA93.

Supreme Court of North Carolina.

Oct. 6, 1994.

Maxwell, Freeman & Beason, P.A. by Robert A. Beason and Monica Umstaedt Rossman, Durham, for plaintiff-appellee.

Haywood, Denny, Miller, Johnson, Sessoms & Patrick by George W. Miller, Jr. and John R. Kincaid, Durham, for defendant-appellants.

PER CURIAM.

This is one of those rare cases where both sides agree. In their briefs, plaintiff and defendants urge us to reverse the decision of the Court of Appeals, which dismissed defendants' appeal as premature, and remand for determination of the merits of the underlying appeal. For the reasons which follow, we grant the relief requested.

This is a wrongful death action in which plaintiff alleged the decedent died as a result of defendant William Dudley Latta, Jr.'s, negligent operation of a motor vehicle owned by defendant Latta, Sr., d/b/a W.D. Latta & Sons Trucking.

Following the presentation of evidence, four issues were submitted to the jury: (1) the negligence of defendants, (2) the contributory negligence of the decedent, (3) the gross negligence of defendant Latta, Jr., and (4) the amount of damages recoverable by plaintiff. The jury returned a verdict finding negligence on the part of both the decedent and defendants and no gross negligence on the part of defendant, Latta, Jr. Accordingly, the jury awarded no damages to plaintiff. On 10 December 1992 judgment was entered in accordance with the jury verdict.

On 11 December 1992, plaintiff filed a motion for judgment notwithstanding the verdict and a motion for a new trial on the issue of damages. By order entered 31 December 1992, the trial court (1) set aside the jury verdict and judgment entered thereon as to the decedent's contributory negligence, (2) entered judgment for the plaintiff upon the issue of contributory negligence, and (3) ordered a new trial on the issue of damages. From this order defendants appealed to the Court of Appeals, contending that the trial court erred as a matter of law in granting plaintiff's motion for judgment notwithstanding the verdict and motion for new trial on the issue of damages and in allowing plaintiff to put on rebuttal evidence regarding decedent's contributory negligence. Treating the appeal as one only from an order granting a new trial on the issue of damages, the Court of Appeals, relying on Unigard Carolina Ins. Co. v. Dickens, 41 N.C.App. 184, 254 S.E.2d 197 (1979), held that the order appealed from was interlocutory and no substantial right was affected thereby. Accordingly, the appeal was dismissed as premature. We granted defendants' petition for discretionary review on 27 January 1994, and we now reverse and remand for consideration of the substantive appeal.

Unigard does not control the instant case. In Unigard, the jury found that (1) the plaintiff was subrogated to the rights of the insureds, (2) the insureds were damaged by the negligence of defendants, and (3) the insureds were damaged in the amount of two hundred dollars. The trial court accepted the verdict on the first two issues, but set aside the verdict on the issue of damages and granted plaintiff's motion for a new trial limited to that issue. The Court of Appeals, relying on this Court's decision in Tridyn Industries Inc. v. American Mutual Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979), dismissed the appeal as being interlocutory and not affecting a substantial right. The posture of the case was stated by Judge Frank Parker as follows: "By this appeal the defendants attempt to obtain immediate appellate review of an interlocutory order of the trial court which accepted the jury's verdict fixing liability and directed there be a new trial solely on the issue of damages. We find the appeal premature and order it dismissed." Unigard, 41 N.C.App. at 186, 254 S.E.2d at 198.

Plaintiff and defendants contend, and we agree, that the instant case is similar to LaFalce v. Wolcott, 76 N.C.App. 565, 334 S.E.2d 236 (1985). In LaFalce, the plaintiffs sued for damages allegedly resulting from the defendant's negligent operation of a motor vehicle. The defendant counterclaimed, alleging negligence on the part of the plaintiffs, and offered the defense of contributory negligence. The trial court directed a verdict against the plaintiffs, sending only defendant's counterclaim to the jury. The jury found plaintiffs negligent, but awarded defenda...