Robertson v. Stanley

• Decision Date: 01 July 1974
• Docket Number: No. 75,75
• Citation: 285 N.C. 561,206 S.E.2d 190
• Court: North Carolina Supreme Court
• Parties: Douglas Wayne ROBERTSON, an infant, By and Through his guardian an litem, Samuel B. Robertson v. Carper S. STANLEY, Jr.

Page 190

206 S.E.2d 190

285 N.C. 561

Douglas Wayne ROBERTSON, an infant, By and Through his guardian an litem, Samuel B. Robertson v. Carper S. STANLEY, Jr.

No. 75.

Supreme Court of North Carolina.

July 1, 1974.

Harrington & Stultz by Thomas S. Harrington, Eden, for plaintiff appellant.

Joseph E. Elrod III, of Henson, Donahue & Elrod, Greensboro, attorney for defendant appellee.

HUSKINS, Justice:

Denial of his motion for a new trial on the issue of damages constitutes plaintiff's sole assignment of error. He contends the verdict is invalid As a matter of law and that the trial judge was duty bound to set it aside on the third issue and grant a new trial on the question of damages. On the other hand, defendant contends that denial of plaintiff's motion for a new trial on the damages issue was a discretionary act of the trial judge from which, absent abuse of discretion, no appeal lies.

The rule is well established that '(t)he granting or the denying of a motion for a new trial on the ground that the damages assessed by the jury are excessive or inadequate is within the sound discretion of the trial judge.' Hinton V. Cline, 238 N.C. 136, 76 S.E.2d 162 (1953). Accord, Brown v. Griffin, 263 N.C. 61, 138 S.E.2d 823 (1964); Dixon v. Young, 255 N.C. 578, 122 S.E.2d 202 (1961). Even so, we are of the opinion that the quoted rule is inapplicable in this case because the verdict is contrary to law, inconsistent, invalid and should have been set aside Ex mero motu.

In the consolidated trial of the actions--one by the father for medical expenses and the other by the son for personal injuries--the following was stipulated by counsel and read to the jury: 'In addition to the other stipulations contained herein, the parties stipulate and agree with respect to the following undisputed facts. . . . That at the time of the accident, said Douglas Wayne Robertson was struck by an automobile being operated by the defendant. As a result of the accident, Douglas Wayne Robertson suffered a dislocation of his right sternoclavicular joint which resulted in his hospitalization on three occasions and caused George Dillard Robertson (his father) to incur expenses in the amount of one thousand nine hundred and seventy dollars.' This judicial admission conclusively established in both cases the amount of medical expense incurred by the father and that the injury suffered by the son was the proximate result of being struck by defendant's automobile. This left for jury determination the questions of negligence, contributory negligence, and the amount of damages, if any, Douglas Wayne Robertson, the minor son, was entitled to recover.

In support of his claim for damages for pain and suffering and the residual scar on his shoulder, the minor plaintiff offered evidence tending to show that he was hospitalized three times for approximately twenty-six days as a result of the accident; that he was operated upon twice and has a permanent scar on his right shoulder from the operations; that he suffered pain over an extended period of time and that even to the date of the trial his shoulder hurt when he attempted to lift heavy objects; and that he was given medication to relieve the pain and suffering. Defendant offered no evidence at the trial; hence plaintiff's evidence is uncontradicted.

Since the judge's charge is not included in the record, it is presumed that the jury was instructed correctly on every principle of law applicable to the facts. Long v. Honeycutt, 268 N.C. 33, 149 S.E.2d 579 (1966); Jones v. Mathis, 254 N.C. 421, 119 S.E.2d 200 (1961); Moore v. Humphrey, 247 N.C 423, 101 S.E.2d 460 (1958); White v. Lacey, 245 N.C. 364, 96 S.E.2d 1 (1957). Accordingly, we presume that the trial judge correctly instructed the jury on all issues and, with respect to the third issue, told the jury among other things that if the minor plaintiff had been injured by defendant's negligence and had not contributed to his injury by his own negligence, he was entitled to a reasonable satisfaction for actual suffering, both physical and mental, which were the immediate and necessary consequences of his injuries.

'The law is well settled in this jurisdiction that in cases of personal injuries resulting from defendant's negligence, the plaintiff is entitled to recover the present worth of all damages naturally and proximately resulting from defendant's tort. The plaintiff, Inter alia, is to have a reasonable satisfaction for actual suffering, physical and mental, which are the immediate and necessary consequences of the injury. The award is to be made on the basis of a cash settlement of the plaintiff's injuries, past, present, and prospective. In assessing prospective damages, only the present cash value or present worth of such damages is to be awarded as the plaintiff is to be paid in advance for future losses. . . . Generally, mental pain and suffering in contemplation of a permanent mutilation or disfigurement of the person may be considered as an element of damages, and it would seem that the weight of authority is to that effect.' King v. Britt, 267 N.C. 594, 148 S.E.2d 594 (1966). It should be noted that we do not state the entire rule for compensatory damages for injury to the person but only so much of it as is strictly relevant to this case. Here, plaintiff was a nine and one-half year old boy. His nursing and medical expenses were recoverable by his father. He was not employed and suffered no loss of wages. He has no permanent disability by reason of his injury. His capacity to earn money is not involved unless he could show that the scar on his shoulder is such a permanent mutilation or disfigurement as to mar his appearance to the extent that it lessens or reduces his opportunities to obtain remunerative employment in the future. Hence the measure of damages in this particular case is a reasonable satisfaction for actual suffering, both physical and mental, which are the immediate and necessary consequences of his injuries. Mental pain and suffering resulting from the permanent scar on his shoulder, if any be shown, may be considered as an element of damages; and if it be shown that the scar mars his appearance to such an extent that his opportunities to obtain remunerative employment in the future are lessened, then such evidence may be considered as an element of damages. King v. Britt, supra. See Marshburn v. Patterson, 241 N.C. 441, 85 S.E.2d 683 (1955).

Notwithstanding the uncontradicted evidence of pain and suffering and the instruction of the judge on the law, the jury found that Douglas Wayne Robertson had been injured by the negligence of the defendant with no contributory negligence on his part and yet found he had suffered no compensable damages for pain and suffering and permanent scarring. Under such circumstances, with the evidence of pain and suffering clear, convincing and uncontradicted, it is quite apparent that the verdict is not only inconsistent but also that it was Not rendered in accordance with the law. Such verdict indicates that the jury arbitrarily ignored plaintiff's proof of pain and suffering. If the minor plaintiff was entitled to a verdict against defendant by reason of personal injuries suffered as a result of defendant's negligence, then he was entitled to All damages that the law provides in such case.

Many cases from other jurisdictions hold that a verdict allowing the exact amount of medical expenses, but awarding nothing for pain and suffering where claim therefor was properly made and clearly proven, is invalid and cannot stand. See Annot., Verdict Omitting Damages for Pain, 20 A.L.R.2d 276 (1951). In some cases the appellate court granted a new trial on the ground that such a verdict is contrary to the instructions of the trial court on the issue of damages and is therefore improper and invalid. Murrow v. Whiteley, 125 Colo. 392, 244 P.2d 657 (1952); Browder v. Beckman, 275 Ill.App. 193 (1934); Timmerman v. Schroeder, 203 Kan. 397, 454 P.2d 522 (1969); Wall v. Van Meter, 311 Ky. 198, 223 S.W.2d 734 (1949); Fordon v. Bender, 363 Mich. 124, 108 N.W.2d 896 (1961); Gomes v. Roy, 99 N.H. 233, 108 A.2d 552 (1954); Lehner v. Interstate Motor Lines, Inc., 70 N.J.Super. 215, 175 A.2d 474 (1961).

In other cases the appellate court held that such a verdict is inconsistent and therefore invalid. Pickel v. Rosen, 214 So.2d 730 (Fla.Ct.App.1968); Burkett v. Moran, 410 P.2d 876 (Okl.1965); Hall v. Cornett, 193 Or. 634, 240 P.2d 231 (1952).

In Edmondson v. Keller, 401 S.W.2d 718 (Tex.Civ.App.1966), the appellate court granted a new trial on the ground that the verdict 'was against the greater weight and preponderance of the evidence because the undisputed evidence shows the plaintiff sustained substantial injuries or in any event some damages. . . . The amount of damages is largely within the jury's discretion. However, they must award something for every element of damage resulting from an injury.'

In Gallentine v. Richardson, 248 Cal.App.2d 152, 56 Cal.Rptr. 237 (1967), the appellate court held that 'where damage is proven as a proximate result of defendant's negligence, the exact amount of plaintiff's special damages are awarded, and no...