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Worthington v. Bynum

Filed: May 4, 1982.


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 Copeland, Justice. 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.


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.*fn2 For well over one hundred years, it has been a sufficiently ...

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