Supreme Court of North CarolinaMay 1, 1982
305 N.C. 478 (N.C. 1982)
305 N.C. 478290 S.E.2d 599

No. 125A81

Filed 4 May 1982

Rules of Civil Procedure 59 — new trial on ground damages awarded excessive — no abuse of discretion A trial judge's discretionary order pursuant to G.S. 1A-1, Rule 59 for or against a new trial upon any ground may be reversed on appeal only in those exceptional cases where an abuse of discretion is clearly shown. Therefore, the Court of Appeals erred in reversing a Rule 59 order by using the standard in Howard v. Mercer, 36 N.C. App. 67, 243 S.E.2d 168 (1978) to find the verdicts for damages arising out of a motor vehicle accident were "within the maximum limits of a reasonable range." To the extent that Howard v. Mercer attempts to define what a reversible abuse of discretion is under Rule 59 (a)(6), it is overruled. Further, the Court of Appeals erred in concluding that there was "no evidence to support or suggest" the existence of adequate grounds for the trial judge's exercise of his discretion to grant defendant's motion for a new trial.

APPEAL by the defendant pursuant to G.S. 7A-30 (2) from the decision of the Court of Appeals, (Judge Becton, with Judge Whichard concurring, and Judge Robert Martin dissenting), reported at 53 N.C. App. 409, 281 S.E.2d 166 (1981). In a 2-1 decision, the Court of Appeals reversed an order by Judge Peel, entered at the 12 May 1980 Civil Session of Superior Court, PITT County, granting the defendant's motion under G.S. 1A-1, Rule 59, to set aside the jury verdicts for the plaintiffs and award a new trial.

James, Hite, Cavendish Blount, by M. E. Cavendish and Marvin Blount, Jr., for plaintiff-appellees.

Gaylord, Singleton McNally, by L. W. Gaylord, Jr., for defendant-appellant.

Justice MITCHELL did not participate in the consideration or decision of this case.

Justice CARLTON concurring.

Justice MEYER joins in this concurring opinion.

Justice BRITT dissenting.

Plaintiffs Worthington and Cogdell were passengers in a vehicle which collided with another vehicle driven by defendant Bynum on 23 May 1977. Plaintiffs subsequently filed separate complaints against defendant regarding their personal injuries arising out of the accident. Plaintiff Worthington sought $250,000 in compensatory damages, and plaintiff Cogdell likewise sought a recovery of $200,000. The two cases were consolidated for trial. Defendant's negligence in the tragic occurrence was stipulated. The only issue for the jury's determination was what amount of damages the plaintiffs were entitled to recover. Defendant was represented by counsel at trial, but he did not personally appear in court during the proceedings.

Defendant was highly intoxicated at the time of the accident. A breathalyzer test administered to him three hours after the wreck showed defendant's blood alcohol content to be .21 percent. Prior to the trial of these civil cases, defendant had pleaded guilty to the criminal charges of failure to stop at a stop sign and death by motor vehicle. [The driver of the car in which plaintiffs were riding was killed in the collision.]

For five days, plaintiffs presented evidence to the jury about the nature and extent of their injuries. Six medical experts testified for plaintiffs. Defendant did not offer independent evidence at trial; however, his counsel did elicit evidence through the cross-examination of plaintiffs' witnesses.

After receiving instructions from the court, the jury deliberated for thirty minutes and returned verdicts against defendant of $175,000 for plaintiff Worthington and $150,000 for plaintiff Cogdell. Defendant thereupon moved, pursuant to Rule 59 (a)(5), (6) and (7) of the Rules of Civil Procedure, for the trial court to set aside the verdicts and award a new trial in both cases. Judge Peel took the matter under advisement for a few days. He then heard arguments by counsel on the motion on 22 May 1980. At the conclusion of the hearing, Judge Peel stated the following:

I have got a bunch of notes I made last night that I took from the evidence.

Gentlemen, I don't intend to catalog, but time and again I tried to instruct that jury to disregard things that seemed to me to be improper that kept coming up. It was an extremely volatile situation. I am satisfied that the jury completely disregarded many of my instructions. I don't understand that in view of all the evidence. It is my opinion that the verdict in each of the cases was excessive and I am, therefore, ordering Mr. Gaylord to prepare an order preparing a new trial as to each plaintiff. [Record at 245.]

Defendant's counsel, Mr. Gaylord, thereupon prepared an order granting the Rule 59 motion, and Judge Peel signed it on 27 May 1980. In pertinent part, that order provided as follows:

And it being made to appear to the Court and the Court in its considered discretion being of the opinion that the Motion filed by the defendant in each case under Rule 59 of the North Carolina Rules of Civil Procedure should be allowed and granted . . .

. . . .


FIRST: That the Motion made by defendant in each case pursuant to the provisions of Rule 59 of the North Carolina Rules of Civil Procedure be and the same is hereby granted.

SECOND: That the issue of damages in each of these cases and as answered by the jury is hereby set aside and a new trial is granted defendant in each case as to the issue of damages. [Record at 250-51 (emphases added).]

Plaintiffs excepted to the entry of the foregoing order and sought review in the Court of Appeals. The Court of Appeals, in an opinion by Judge Becton, reversed the trial court's grant of defendant's motion for a new trial and remanded the cause for entry of judgment in accordance with the jury verdicts. Defendant appeals from that decision.

COPELAND, Justice.

A single question is presented for our review: Did the Court of Appeals err in reversing Judge Peel's order for a new trial? We hold that it did and reverse.

Defendant's counsel moved for a new trial upon the grounds that the jury manifestly disregarded the court's instructions, that the jury awarded excessive damages under the influence of passion and prejudice, and that the evidence was insufficient to justify the verdict or that the verdict was contrary to law. G.S. 1A-1, Rule 59 (a)(5), (6) and (7). Judge Peel acknowledged the existence of those grounds in his oral ruling upon defendant's motion in open court. However, Judge Peel also said that he did not intend "to catalog" all of his reasons and expressed his opinion that the entire situation had been "extremely volatile." The nature of Judge Peel's ruling in defendant's favor was subsequently clarified in the written order which, after reciting defendant's grounds for the motion, stated that the court was awarding a new trial as a matter of "its considered discretion" (and thus not as a matter of law). This fact is significant for it controls the scope of our review of Judge Peel's action.

It has been long settled in our jurisdiction that an appellate court's review of a trial judge's discretionary ruling either granting or denying a motion to set aside a verdict and order a new trial is strictly limited to the determination of whether the record affirmatively demonstrates a manifest abuse of discretion by the judge. Goldston v. Chambers, 272 N.C. 53, 59, 157 S.E.2d 676, 680 (1967); see e.g., Bryant v. Russell, 266 N.C. 629, 146 S.E.2d 813 (1966); Robinson v. Taylor, 257 N.C. 668, 127 S.E.2d 243 (1962); Dixon v. Young, 255 N.C. 578, 122 S.E.2d 202 (1961); Caulder v. Gresham, 224 N.C. 402, 30 S.E.2d 312 (1944). The legislative enactment of the Rules of Civil Procedure in 1967 did not diminish the inherent and traditional authority of the trial judges of our state to set aside the verdict whenever in their sound discretion they believe it necessary to attain justice for all concerned, and the adoption of those Rules did not enlarge the scope of appellate review of a trial judge's exercise of that power. Britt v. Allen, 291 N.C. 630, 634-35, 231 S.E.2d 607, 611-12 (1977); see also Insurance Co. v. Chantos, 298 N.C. 246, 253, 258 S.E.2d 334, 338-39 (1979) (Huskins, J., dissenting). The principle that appellate review is restricted in these circumstances is so well established that it should not require elaboration or explanation here. Nevertheless, we feel compelled by the Court of Appeals' disposition of the case before us to restate and reaffirm today the basic tenets of our law which would permit only circumscribed appellate review of a trial judge's discretionary order upon a Rule 59 motion for a new trial. Those tenets have been competently set forth in innumerable prior opinions of this Court, and, for instructive purposes, we provide the following sampling therefrom.

In Settee v. Electric Ry., 170 N.C. 365, 367, 86 S.E. 1050, 1051 (1915), the Court evinced a positive hesitancy to review such discretionary rulings by the trial court except in rare cases:

While the necessity for exercising this discretion, in any given case, is not to be determined by the mere inclination of the judge, but by a sound and enlightened judgment in an effort to attain the end of all law, namely, the doing of even and exact justice, we will yet not supervise it, except, perhaps, in extreme circumstances, not at all likely to arise; and it is therefore practically unlimited.

In Bird v. Bradburn, 131 N.C. 488, 489, 42 S.E. 936, 937 (1902), the court espoused several sound reasons for leaving the discretionary power to set aside a verdict almost exclusively in the hands and supervision of the judge presiding over the trial:

The power of the court to set aside the verdict as a matter of discretion has always been inherent, and is necessary to the proper administration of justice. The judge is not a mere moderator, but is an integral part of the trial, and when he perceives that justice has not been done it is his duty to set aside the verdict. His discretion to do so is not limited to cases in which there has been a miscarriage of justice by reason of the verdict having been against the weight of the evidence (in which, of course, he will be reluctant to set his opinion against that of the twelve), but he may perceive that there has been prejudice in the community which has affected the jurors, possibly unknown to themselves, but perceptible to the judge — who is usually a stranger — or a very able lawyer has procured an advantage over an inferior one, an advantage legitimate enough in him, but which has brought about a result which the judge sees is contrary to justice. In such, and many other instances which would not furnish a legal ground to set aside the verdict, the discretion reposed in the trial judge should be brought to bear to secure the administration of exact justice.

In Brink v. Black, 74 N.C. 329, 330 (1876), the trial judge had set aside the verdict, "because in his opinion it was against the weight of the evidence," and had granted a new trial. The only question presented to our Court was whether review of the judge's order was available. Justice Reade answered that:

When a Judge presiding at a trial below grants or refuses to grant a new trial because of some question of "law or legal inference" which he decides, and either party is dissatisfied with his decision of that matter of law or legal inference, his decision may be appealed from, and we may review it. But when he is of the opinion that, considering the number of witnesses, their intelligence, their opportunity of knowing the truth, their character, their behavior on the examination, and all the circumstances on both sides, the weight of the evidence is clearly on one side, how is it practicable that we can review it, unless we had the same advantages? And even if we had, we cannot try facts.

In Edwards v. Upchurch, 212 N.C. 249, 250, 193 S.E. 19 (1937), the Court reversed the lower court's failure to set aside the verdict and order a new trial and said that the trial judge had a manifest duty to exercise such power to prevent injustice "when in his opinion the verdict is not supported by the evidence or is against the weight of the evidence."

In Boney v. R.R., 145 N.C. 248, 250, 58 S.E. 1082, 1083 (1907), our Court stated that the trial judge, "who heard the evidence," had the "corrective power" to set aside the verdict if he thought it was excessive even though "[t]he amount of damages was a matter of fact of which the jury were the judges."

In sum, it is plain that a trial judge's discretionary order pursuant to G.S. 1A-1, Rule 59 for or against a new trial upon any ground may be reversed on appeal only in those exceptional cases where an abuse of discretion is clearly shown. See also Scott v. Trogden, 268 N.C. 574, 151 S.E.2d 18 (1966); Sherrill v. Boyce, 265 N.C. 560, 144 S.E.2d 596 (1965); Walston v. Greene, 246 N.C. 617, 99 S.E.2d 805 (1957); Frye Sons, Inc. v. Francis, 242 N.C. 107, 86 S.E.2d 790 (1955).

We have cited many decisions of this Court in support of this sound and settled proposition in order to demonstrate two other points which are pertinent to the case at bar. First, our Court has had many opportunities, if it were so inclined, to formulate a "precise" test for determining when an abuse of discretion has occurred in the trial judge's grant or denial of a motion for a new trial. Second, our Court has not, however, found it logically necessary or wise to attempt to define what an abuse of discretion might be in the abstract concerning any ground upon which a new trial may be granted. For well over one hundred years, it has been a sufficiently workable standard of review to say merely that a manifest abuse of discretion must be made to appear from the record as a whole with the party alleging the existence of an abuse bearing that heavy burden of proof. The error in the Court of Appeals' decision in the instant case lies in its failure to apply this standard of review strictly and correctly.

It would be practically impossible to fashion a rule which could generally pinpoint where a trial judge's discretion in any matter ends and an abuse thereof begins. This was recognized long ago in Armstrong v. Wright, 8 N.C. 93, 94 (1820): "When we ask what the legal discretion is, we are as much at a loss as we were before the definition to declare the rules or laws by which the discretion shall be regulated. To prescribe fixed rules for discretion is at once to destroy it." (Emphases added.)

In the first place, the Court of Appeals improperly subjected Judge Peel's discretionary order to much broader appellate scrutiny, in one respect, than that previously permitted in our jurisdiction. The Court of Appeals reversed the Rule 59 order in part because it found that the damages awarded to plaintiffs were not excessive since the amounts of "both verdicts were clearly within the maximum limits of a reasonable range." 53 N.C. App. at 414, 281 S.E.2d at 171. In so doing, the Court of Appeals relied upon a prior opinion of its Court, Howard v. Mercer, 36 N.C. App. 67, 243 S.E.2d 168, discretionary review granted, 295 N.C. 466, 246 S.E.2d 9 (1978) (petition later withdrawn on defendant's motion), which had announced and applied the foregoing federal test for determining whether an abuse of discretion has occurred in the grant of a new trial under G.S. 1A-1, Rule 59 (a)(6). See Taylor v. Washington Terminal Co., 409 F.2d 145 (D.C. Cir.), cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85 (1969). This federal precedent is, of course, not binding upon this Court in an interpretation of our own Rules of Civil Procedure, and it would serve no purpose to engage in great debate over the various policies which might or might not favor the adoption of a specific standard to evaluate and limit a trial judge's discretionary power to grant a new trial if he believes the jury has awarded inadequate or excessive damages. It suffices to say that the overwhelming precedent of this Court (see supra) discloses no compelling reason or need for the implementation of such a rule in North Carolina. Moreover, we are not persuaded that the appellate use of a vague test to measure the "reasonable range" of a given verdict's amount would provide a more effective, consistent or precise method of determining whether a trial judge has exceeded the bounds of discretion in the grant or denial of a new trial (see note 2, supra). Consequently, we overrule Howard v. Mercer, supra, to the extent that it attempts to define generally what a reversible abuse of discretion is under Rule 59 (a)(6), and we hold that the Court of Appeals should not have applied that definition to find an abuse of discretion on Judge Peel's part in this case.

Secondly, the Court of Appeals erroneously concluded that there was "no evidence to support or suggest" the existence of adequate grounds for Judge Peel's exercise of his discretion to grant defendant's motion for a new trial. See 53 N.C. App. at 418, 281 S.E.2d at 173 (emphasis added). From our reading of the Court of Appeals' opinion, we are led to believe that that Court simply substituted what it considered to be its own better judgment concerning the need for a new trial in the case and did not strictly review the record for the singular cause of determining whether Judge Peel had clearly abused his discretion in that regard. It is true that plaintiffs presented much evidence which showed that their injuries from the accident were severe and substantial, and this evidence surely warranted a large recovery of damages by them. See 53 N.C. App. at 412-14, 281 S.E.2d at 170-71. However, there was also evidence which suggested that a combined recovery of $325,000 for the plaintiffs was too much. For example, plaintiffs' total medical expenses were only $17,634.10, they did not lose any income during their absences from work, both continued to work for the same employer after their recovery and did not suffer a loss in pay or position due to the permanent, partial disabilities they received in the accident, and doctors testified that both plaintiffs had recovered well from their injuries, were experiencing little pain and should not have pain in the future. Viewed in this light, it seems that the jury awarded plaintiffs over $300,000 for pain, suffering and resulting disabilities. In these circumstances, we simply cannot say, as a matter of law, that Judge Peel went too far in finding that there was insufficient evidence to support the jury's award and that the award was too large. In addition, it is not inconceivable on this record that the jury awarded these damages "under the influence of passion or prejudice." G.S. 1A-1 Rule 59 (a)(6). To start with, Judge Peel said that the trial had been "extremely volatile." Moreover, it must be remembered that this serious accident was caused by a drunk driver who did not even show up at trial. Thus, it is possible that the jury was trying to punish this absent defendant for his reprehensible conduct by over-compensating the innocent plaintiffs. Finally, we find it practically impossible to second-guess Judge Peel about his belief that the jury must have disregarded many of his instructions in order to arrive at these verdict amounts. This is especially so since Judge Peel did not list what those instructions were. In any event, while we agree with the Court of Appeals that the loss of sexual function or teeth were proper elements of plaintiffs' damages. the general rule is that a verdict which is contrary to the court's instructions can be set aside even if those instructions were "unsound in law." 66 C.J.S. New Trial 68, 75 (1950). We therefore sustain Judge Peel's exercise of his discretionary power to order a new trial.

In this respect, we also note that, although the jury had listened to complex medical testimony for five days, they returned substantial verdicts against defendant in only thirty minutes.

On re-trial, evidence of these matters should be admitted for the jury's evaluation and consideration.

In conclusion, we note that the trial judges of this state have traditionally exercised their discretionary power to grant a new trial in civil cases quite sparingly in proper deference to the finality and sanctity of the jury's findings. We believe that our appellate courts should place great faith and confidence in the ability of our trial judges to make the right decision, fairly and without partiality, regarding the necessity for a new trial. Due to their active participation in the trial, their first-hand acquaintance with the evidence presented, their observances of the parties, the witnesses, the jurors and the attorneys involved, and their knowledge of various other attendant circumstances, presiding judges have the superior advantage in best determining what justice requires in a certain case. Because of this, we find much wisdom in the remark made many years ago by Justice Livingston of the United States Supreme Court that "there would be more danger of injury in revising matters of this kind than what might result now and then from an arbitrary or improper exercise of this discretion." Insurance Co. v. Hodgson, 10 U.S. (6 Cranch) 206, 218 (1810). Consequently, an appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge's ruling probably amounted to a substantial miscarriage of justice. We hold that this is not such a case.

For all the foregoing reasons, the decision of the Court of Appeals is reversed to the end that Judge Peel's original order for a new trial may be reinstated. The cause is remanded to the Court of Appeals for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Justice MITCHELL did not participate in the consideration or decision of this case.