Britt v. Allen

• Decision Date: 31 January 1977
• Docket Number: No. 124,124
• Citation: 231 S.E.2d 607,291 N.C. 630
• Parties: Alice Lucille Craven BRITT et al. v. Garland W. ALLEN.
• Court: North Carolina Supreme Court

Page 607

231 S.E.2d 607

291 N.C. 630

Alice Lucille Craven BRITT et al. v. Garland W. ALLEN.

No. 124.

Supreme Court of North Carolina.

Jan. 31, 1977.

Ottway Burton and Millicent Gibson, Asheboro, for plaintiffs-appellants.

Moser & Moser, Asheboro, for defendant-appellee.

SHARP, Chief Justice.

Plaintiffs' first assignment of error is that the Court of Appeals erred in affirming the trial judge's discretionary action in setting the verdict aside on the ground that it was against the greater weight of the evidence, and that unspecified errors of law were committed during the trial. Plaintiffs' contention is that the verdict was in accordance with the evidence that no errors of law occurred. This assignment has no merit and is overruled.

"The power of the court to set aside a verdict as a matter of discretion has always been inherent, and is necessary to the proper administration of justice.' Bird v. Bradburn, 131 N.C. 488, 489, 42 S.E. 936 (1902). The trial judge is 'vested with the discretionary authority to set aside a verdict and order a new trial whenever in his opinion the verdict is contrary to the greater weight of the credible testimony.' Roberts v. Hill, 240 N.C. 373, 380, 82 S.E.2d 373, 380 (1954). Since such a motion requires his appraisal of the testimony, it necessarily invokes the exercise of his discretion. It raises no question of law, and his ruling thereon is irreviewable in the absence of manifest abuse of discretion. Williams v. Boulerice, 269 N.C. 499, 153 S.E.2d 95 (1967); Martin v. Underhill, 265 N.C. 669, 144 S.E.2d 872 (1965); Thomas v. Myers, 87 N.C. 31 (1882); 7 Strong's N.C. Index 2d Trial §§ 48, 51 (1968). Certainly, the record in this case manifests no abuse of discretion. When a verdict is set aside for error in law, the decision is not a matter of discretion. In such a situation, 'the aggrieved party may appeal, provided the error is specifically designated.' McNeill v. McDougald, 242 N.C. 255, 259, 87 S.E.2d 502, 504 (1955).

The adoption of the Rules of Civil Procedure (N.C.Sess.Laws 1967, ch. 954, § 4, effective 1 January 1970; N.C.Sess.Laws 1969, ch. 803, § 1) and the repeal of G.S. 1--207 (1953) did not diminish the trial judge's traditional discretionary authority to set aside a verdict. The procedure for exercising this traditional power was merely formalized in G.S. 1A--1, Rule 59, which lists eight specific grounds and one 'catchall' ground on which the judge may grant a new trial. Section (a)(9) of Rule 59 authorizes the trial judge to grant a new trial for 'any other reason heretofore recognized as grounds for new trial.' See Sizemore, General Scope and Philosophy of the New Rules, 5 Wake Forest Intramural L.Rev. 1, 42--43 (1969).

Judge Long specifically found that the verdict in this case is 'contrary to the evidence' and that it was set aside 'in the discretion of the court.' The fact that he also acknowledged he had committed unspecified errors of law detracted not one whit from the effect of his discretionary order setting aside the verdict. This statement was mere surplusage and did not make Judge Long's order appealable. See Atkins v. Doub, 260 N.C. 678, 133 S.E.2d 456 (1963); 1 Strong's N.C. Index 3d Appeal and Error § 54.3 (1976). See also Ward v. Cruse, 234 N.C. 388, 67 S.E.2d 257 (1951).

Plaintiffs' second assignment of error, that the Court of Appeals erred in remanding this case to the superior court for the entry of a directed verdict for defendant in accordance with his motion made at the close of all the evidence, must be sustained.

Upon reviewing the records in the four preceding appeals in this case, the Court of Appeals correctly concluded that in its opinion on the fourth appeal (21 N.C.App. 497, 204 S.E.2d 903) it had misinterpreted the evidence and so had 'applied sound principles of law to a state of facts not supported by the evidence.' Being of the opinion that but for its error on the fourth appeal, the trial judge would have directed a verdict for defendant in accordance with his motion at this last trial, the Court of Appeals reversed his order for a new trial, affirmed his order setting aside the verdict, and remanded the case for entry of judgment notwithstanding the verdict so 'that justice would be served.'

However, the present posture of the case will not permit its termination by this method. The question of the legal sufficiency of plaintiffs' evidence to go to the jury was not before the Court of Appeals. There being no abuse of discretion, the trial court's order setting aside the verdict as being against the greater weight of the evidence was not reviewable on appeal; there was left nothing from which an appeal would lie. Atkins v. Doub, 260 N.C. 678, 133 S.E.2d 456 (1963); Ward v. Curse, 234 N.C. 388, 67 S.E.2d 257 (1951); Strayhorn v. Fidelity Bank, 203 N.C. 383, 166 S.E. 312 (1932); 1 Strong's N.C. Index 3d Appeal and Error § 54.3 (1976). A contention based on a question of law is not presented by an exception to the court's discretionary order setting aside a verdict. 7 Strong's N.C. Index 2d Trial § 51 (1968). Thus, the Court of Appeals disposed of this case by ruling on questions of law which were not the basis of Any assignment of error and which, therefore, were not within the scope of review on appeal. State v. Brooks, 275 N.C. 175, 166 S.E.2d 70 (1969); Conrad v. Conrad, 252 N.C. 412, 113 S.E.2d 912 (1960); Jones v. Jones, 235 N.C. 390, 70 S.E.2d 13 (1932). See also App.R. 10 (1975).

Even if the court's discretionary order were appealable, it was defendant who made the motion to set the verdict aside, and in no view of the matter is he now an aggrieved party entitled to appeal under G.S. 1--271 (1969). Bethea v. Kenly, 261 N.C. 730, 136 S.E.2d 38 (1964).

Upon return of the verdict in favor of plaintiffs, had defendant then desired to preserve for appellate consideration the question of the sufficiency of their evidence to support a recovery against him, his proper course would have been to move under G.S. 1A--1, Rule 50(b) for a judgment notwithstanding the verdict. (This motion, of course, would have had to have been made prior to the time the judge exercised his discretion to set aside the verdict.) Had defendant's motion for judgment n.o.v. been denied and judgment entered against him, he could then have had the legal questions raised by his motion determined on his appeal. See Sizemore, General Scope and Philosophy of the New Rules, 5 Wake Forest Intramural Law Rev. 1, 41 (1969); Investment Properties v. Allen, 281 N.C. 174 188 S.E.2d 441 (1973), Vacated on other grounds, 283 N.C. 277, 196 S.E.2d 262 (1973).

However, defendant did not follow this route and, since he did not, the Court of Appeals cannot remand the cause to the superior court with directions to enter judgment n.o.v., for G.S. 1A--1, Rule 50(b)(2) specifically provides:

'An appellate court, on finding that a trial judge should have granted a motion for directed verdict made at the close of all the evidence, may not direct entry of judgment in accordance with the motion unless the party who made the motion for a directed verdict also moved for judgment in accordance with Rule 50(b)(1) or the trial judge on his own motion granted, denied or redenied the motion for a directed verdict in accordance with Rule 50(b)(1).' See Hensley v. Ramsey, 283 N.C. 714, 727--729, 199 S.E.2d 1, 8--9 (1973); 2 McIntosh, North Carolina Practice and Procedure § 1488.45 (Phillips Supp.1970).

Rule 50(b) was rewritten by 1969 N.C.Sess.Laws, ch. 895, § 11 to incorporate section (2), which is set out in the preceding paragraph. The reasons for this revision are stated by Professor Phillips in his commentary on Rule 50:

'This provision (N.C.R. 50(b)(2)), not found in the Federal Rule counterpart, is designed to codify the result nonetheless dictated under that Rule by Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849 (1947) motion denied 331 U.S. 794, 67 S.Ct. 1725, 91 L.Ed. 1822. The reasons are important to an understanding of the intended application of the whole judgment n.o.v. practice. Where no judgment n.o.v. motion is made, the verdict winner is not given a pre-appeal chance to argue either before or after grant of the motion for the justice of giving him a new trial instead of granting judgment n.o.v. The trial judge is the judicial officer in the best position to make this decision. Consequently, if on appeal the appellate court were able to reverse and direct entry of judgment in accordance with the ...