Matthews v. Lineberry, 7723SC211

• Decision Date: 07 March 1978
• Docket Number: No. 7723SC211,7723SC211
• Citation: 241 S.E.2d 735,35 N.C.App. 527
• Court: North Carolina Court of Appeals
• Parties: Lisa J. MATTHEWS, by her guardian ad litem, Ruth S. Bralley v. Dale Ray LINEBERRY and Delmar R. Lineberry.

Page 735

241 S.E.2d 735

35 N.C.App. 527

Lisa J. MATTHEWS, by her guardian ad litem, Ruth S. Bralley v. Dale Ray LINEBERRY and Delmar R. Lineberry.

No. 7723SC211.

Court of Appeals of North Carolina.

March 7, 1978.

Womble, Carlyle, Sandridge & Rice by Allan R. Gitter and William C. Raper, Winston Salem, for the defendants-appellants.

ERWIN, Judge.

The plaintiff's evidence presented at the trial tends to show that the minor plaintiff was attending school on the date of the accident, 7 September 1974, and was not able to go back to school for approximately 13 days after the accident, because she could not walk and stayed home in bed. The plaintiff was not able to participate in any physical education classes. "I couldn't do some of the activities." The plaintiff had pain in her knee, dropped her physical education classes for the year, and repeated them the following school year.

In part, the trial court instructed the jury as follows with reference to damages:

"Damages for personal injury include such amount as you find by the greater weight of the evidence is fair compensation to the Plaintiff for loss of her time from school, and for repeating the course in physical education; and, in determining this amount, you should consider the evidence as to the loss of her time from school, and that which would be involved in repeating the course in physical education."

The defendants contend that the trial court erred in instructing the jury that it could consider the plaintiff's loss of time from school and repeating a school course in physical education where there was no evidence of any monetary loss or other damages relating thereto, or that the court erred, in that, the charge complained of amounted to instructions on an abstract principle of law not supported by the evidence and was, therefore, prejudicial and erroneous.

We do not agree with the defendants' contentions. The assessment of damages must, to a large extent, be left to the good sense and fair judgment of the jury, subject, of course, to the discretionary power of the judge to set its verdict aside, when in his opinion equity and justice so require. See Walston v. Greene, 246 N.C. 617, 99 S.E.2d 805 (1957), followed in Brown v. Moore, 286 N.C. 664, 213 S.E.2d 342 (1975).

25 C.J.S. Damages § 28 pp. 684-691 states the following regarding uncertainty of damages:

"The rule as to the recovery of uncertain damages generally has been directed against uncertainty as to fact or cause of damage rather than uncertainty as to measure or extent. In other words, the rule against uncertain or contingent damages applies only to such damages as are not the certain results of the wrong, and not to such as are the certain results but uncertain in amount.

In many cases, although substantial damages are established, their amount is, in so far as susceptible of pecuniary admeasurement, either entirely uncertain or extremely difficult of ascertainment; in such cases plaintiff is not denied all right of recovery, and the amount is fixed by the court or by the jury in the exercise of a sound discretion under proper instructions from the court. This is particularly true of torts, especially those resulting in personal injuries; . . .

So, in cases of tort, where there are elements of certainty as to a part only of the damages which have resulted, leaving it apparent that there are actual damages beyond what can be thus accurately measured, plaintiff's recovery is not limited to only as much as can be measured with certainty."

We feel the evidence presented was sufficient to remove the uncertainty, and the charge was proper upon such evidence.

The trial court further instructed the jury:

"If you answer this issue in any amount, you should award such damages as you find from the evidence and by the greater weight of the evidence is fair compensation for any damage the minor Plaintiff has sustained as a proximate result of the Defendant's negligence. That amount may be anywhere from one cent ($.01) to twenty thousand dollars ($20,000.00),...