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Carawan v. Tate

Filed: January 12, 1982.

JOHNNIE F. CARAWAN, PLAINTIFF
v.
TOM TATE AND FRIENDLY PARKING SERVICE, INC., DEFENDANTS AND THIRD-PARTY PLAINTIFFS V. AETNA CASUALTY AND SURETY COMPANY, THIRD-PARTY DEFENDANT



Appeal by plaintiff from the decision of the Court of Appeals reported in Britt, Justice.

Britt

We agree with the decision of the Court of Appeals ordering a new trial on all issues.

The only question presented in the new briefs filed in this court is whether the Court of Appeals erred in failing to dismiss defendants' cross-appeal for the reason that they were not aggrieved by the judgment of the trial court, and were not the real parties in interest. Before discussing that question we feel impelled to address another question which we deem to have significance.

I.

While the question was not raised by any of the parties, we point out an inconsistency in the trial judge's order relating to defendants' motions for judgment N.O.V. and a new trial. The inconsistency is that with respect to the verdict on punitive damages, His Honor purported to grant the motion for judgment N.O.V. pursuant to Rule 50; however, he gave as his reason that the verdict was excessive, part of one of the grounds for granting a new trial under Rule 59. Clearly, there is a difference in the purpose and applicability of the two rules.

In W. Shuford's treatise on North Carolina Civil Practice and Procedure, ยง 50-9, pg. 413, we find:

One of the more far reaching and important innovations found in the rules is the judgment N.O.V. authorized by Rule 50. For the first time in North Carolina practice it is now possible for the trial judge to reserve his ruling on a motion for a directed verdict until the jury has actually returned a verdict and then to allow or deny a motion for a judgment notwithstanding that verdict. A judgment N.O.V. is nothing more nor less than a directed verdict granted after verdict. As Rule 50(b)(1) provides, a motion for judgment N.O.V. "shall be granted if it appears that the motion for directed verdict could properly have been granted." (Emphasis added.)

See also G.S. 1A-1, Rule 50.

G.S. 1A-1, Rule 59, provides in pertinent part:

(a) Grounds. -- A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds:

(6) Excessive or inadequate damages appearing to have been given under the influence of passion or prejudice; . . . .

The Court of Appeals correctly held that the punitive damages issue should have been submitted to the jury and that the trial court erred in granting defendants' motion for judgment N.O.V. On the question of setting the verdict aside for the ...


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