Lieb v. Mayer

• Decision Date: 17 October 1956
• Docket Number: No. 310,310
• Citation: 94 S.E.2d 658,244 N.C. 613
• Parties: Adair LIEB v. Dr. Jerome MAYER.
• Court: North Carolina Supreme Court

Page 658

94 S.E.2d 658

244 N.C. 613

Adair LIEB v. Dr. Jerome MAYER.

No. 310

Supreme Court of North Carolina.

Oct. 17, 1956

White & Aycock, Kinston, for defendant, appellant.

J. Harvey Turner, Kinston, for plaintiff, appellee.

PARKER, Justice.

Defendant has in the record one assignment of error as to the admission of evidence. Since this assignment of error is not set out in his brief, it is taken as abandoned by him. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 544 (also printed with annotations in G.S. 4A, p. 155 et seq.); Reynolds v. Earley, 241 N.C. 521, 85 S.E.2d 904.

Defendant assigns as error the failure of the trial court to allow his motion for judgment of nonsuit made at the close of plaintiff's case, and renewed at the conclusion of all the evidence. However, defendant concedes in his brief there was sufficient evidence to carry the case to the jury for personal injuries to plaintiff, but contends here that his notion should have been allowed for damages to the automobile because there is not a scintilla of evidence upon which the jury could base a verdict as to the amount of damages to the plaintiff's automobile. However, plaintiff's evidence, which will be set out hereafter, tends to show that plaintiff is entitled to recover nominal damages to her car. Moore v. Daggett, 129 Me. 488, 150 A. 538. The Record shows that in the trial court the motions for judgment of nonsuit were made as to the whole case. This Court said in Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757, 760, 17 A.L.R.2d 881: 'A motion for a compulsory nonsuit can not rightly be allowed unless it appears, as a matter of law, that a recovery can not be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish.' The trial court properly refused to nonsuit the plaintiff.

All of defendant's other assignments of error, except those that are formal, relate to the charge on the third issue as to damages. Defendant assigns as error this part of the charge as to the third issue: 'Now, gentlemen of the jury, in making your answer to the third issue, if you find that plaintiff is entitled to recover, you would first seek to ascertain the damage to her automobile and then the damage to her person, and add the two sums together and the total of the two would be the amount which you would write in as your answer to the third issue.'

This is all of the evidence in respect to the damage to plaintiff's automobile: Plaintiff's testimony on direct examination. She owned a 1952 Chrysler. She, with her husband seated beside her, had backed her car almost to the end of the driveway in her yard. Defendant's car, driven by him, jumped the curb at her neighbor's lawn, came across a double driveway, and slammed into her car pushing it about 8 1/2 feet from where it was. Plaintiff's testimony on cross-examination: 'I looked at my car after the collision. The Chrysler's lefthand rear door was mashed in, the complete left rear fender was mashed in and the left rear wheel was about like that (indicating), and the fender was all crushed into the wheel and tire part from the beginning of the lefthand rear door to the back of my car. In speaking of beginning at the door, I mean the forward part of it next to the front door and that little piece that divides the body of the automobile between the two doors. That was mashed in. The impact took place on the left rear door, left fender, and the left wheel.' Her husband's testimony was to the effect that defendant's car crashed into the side of his wife's car pushing it about 8 1/2 feet; that the collision was in June, and repairs on it were made around September. Patrolman Wesley Paris, a witness for the defendant, testified he saw the plaintiff's car which was damaged on the left side and toward the rear.

There is no evidence as to the value of plaintiff's car before the collision or as to its condition at that time. Had it ever been in a collision before this time? How many miles had it been driven? What was its value after the wreck? What was the cost of repairs? The evidence gives no answer. It is plain that plaintiff's evidence makes out a case for the recovery of nominal damages to her car, Moore v. Daggett, supra, but her evidence fails to show adequate facts upon which a substantial recovery for damages to her car can be based. Damages are never presumed. The burden is always upon the complaining party to establish by evidence such facts as will furnish a basis for their assessment, according to some definite and legal rule. Berry v. Hyde County Land & Lumber Co., 183 N.C. 384, 111 S.E. 707; Rice v. Hill, 315 Pa. 166, 172 A. 289.

In Norwood v. Carter, 242 N.C. 152, 87 S.E.2d 2, 5, the Court said: 'Where actual pecuniary damages are sought, there must be evidence of their existence and extent, and some data from which they may be computed. No substantial recovery may be based on mere guesswork or inference; without evidence of facts, circumstances, and data justifying an inference that the damages awarded are...