An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA 02-409


Filed: 15 April 2003


v .                         Ashe County
                            No. 00 CVS 157

    Appeal by plaintiff from judgment entered 10 November 2001 by Judge Ronald E. Spivey in Ashe County Superior Court. Heard in the Court of Appeals 13 November 2002.

    Franklin Smith, for plaintiff-appellant.

    McAngus, Goudelock, & Courie, P.L.L.C., by H. George Kurani and Randolph Morgan, III, for defendant-appellee Kyle Ray Harris.

    Bennett, Guthrie & Dean, P.L.L.C., by Rodney A. Guthrie, for defendant-appellees Robert Doyle Cox and Herman J. Cox, Jr.

    HUDSON, Judge.

    This appeal arises from a traffic accident that occurred on 12 February 2000. On 14 April 2000, Plaintiff, Lonnie Kim Severt, filed a complaint alleging that the negligence of defendants Robert Doyle Cox, Herman J. Cox, Jr., and Kyle Ray Harris proximately caused plaintiff personal injury and property damage. Defendants denied liability. The case was tried to a jury, which found that plaintiff was not “injured or damaged” by the negligence of defendant Robert Doyle Cox, but was “injured or damaged” by thenegligence of defendant Kyle Ray Harris. The jury awarded plaintiff $0.00 for personal injury and $1,000.00 for property damage to his truck. From the judgment entered on these verdicts, plaintiff appeals. For the reasons explained below, we conclude there was no error.
    Plaintiff first assigns as error the trial court's refusal to publish to the jury Plaintiff's Exhibit 5, a summary of plaintiff's medical bills (“Exhibit 5”).
    “[T]he manner of the presentation of evidence is a matter resting primarily within the discretion of the trial judge, [and] his control of the case will not be disturbed absent a manifest abuse of discretion.” State v. Harris, 315 N.C. 556, 562, 340 S.E.2d 383, 387 (1986). In addition, “[t]he decision to allow the jury to return to the courtroom and view exhibits is within the sound discretion of the trial court.” Barnes v. Ford Motor Co., 95 N.C. App. 367, 373, 382 S.E.2d 842, 845 (1989).
    Here, during direct examination, plaintiff testified directly to the contents of Exhibit 5 as to the existence and amount of the medical bills from each of the medical providers listed thereon. After plaintiff testified regarding the contents of Exhibit 5, plaintiff's counsel attempted to introduce and publish Exhibit 5 to the jury, to which defendant Cox objected. The court sustained the objection, but reserved final ruling on the matter of introduction versus publication until after voir dire outside the presence of the jury. After further testimony about the exhibit, the court again sustained the objection to the introduction of Exhibit 5,noting that the plaintiff had already testified as to the “substance of” Exhibit 5, and explaining that “the Court will find that the proper foundation is not laid at this point for the introduction for the actual exhibit.” After further voir dire, defendant Cox withdrew his objection, and the court decided to allow its introduction, stating that “we will bring [the jury] back in and I will pass this to the Jury, I will deny the motion to publish it, it has already been talked about to them.” When the jury returned, the court informed them that he was allowing the introduction of Exhibit 5, but did not publish Exhibit 5 to them at that time.
    During deliberations, the jury requested to see “all medical expense reports.” When Exhibit 5 could not be located, the court, in its discretion, denied the jury's request to view it. The court then instructed the jury to rely on their own recollection of the evidence as it was introduced during the trial. On this record, we see no abuse of discretion. To the contrary, the record reflects that the trial judge carefully considered the handling of Exhibit 5, and appropriately exercised his discretion in managing the evidence.
    Had the trial court's refusal to publish Exhibit 5 been error, plaintiff would nonetheless not be entitled to a new trial because he is unable to show that the error was prejudicial. Nunnery v. Baucom, 135 N.C. App. 556, 560-61, 521 S.E.2d 479, 483 (1999); see also State v. Hageman, 307 N.C. 1, 24, 296 S.E.2d 433, 446 (1982) (no prejudicial error when evidence excluded if substantiallysimilar evidence was admitted). Here, the plaintiff testified to the substance of the matter in Exhibit 5, thereby placing the information before the jury. In addition, the jury concluded that the plaintiff was not entitled to any monetary award for personal injury, only for property damage. Plaintiff argues that if the jurors had been allowed to view the exhibit, “it is likely they would have awarded damages for personal injury.” Given that they heard substantially similar evidence, we are not persuaded.
    Plaintiff next argues that the jury verdict and judgment should be set aside on the grounds that the jury failed to follow the instructions given to them by the trial judge in that they failed to award plaintiff even nominal damages for personal injury. Though we note that plaintiff has not properly preserved this issue for appellate review, in our discretion we will address it on the merits. In doing so, we find no error.
    The focus of plaintiff's argument is that the court instructed the jury to award at least nominal damages for plaintiff's personal injuries if the jury found negligence on the part of either defendant. The trial court presented the four issues to the jury in the following form:
        1.    Was the plaintiff, Lonnie Kim Severt, injured or damaged by the negligence of the defendant, Robert Cox?

        2.    Was the plaintiff, Lonnie Kim Severt, injured or damaged by the negligence of the defendant, Kyle Harris?

        3.    What amount, if any, is the plaintiff, Lonnie Kim Severt, entitled to recoverfor personal injury?

        4.    What amount, if any, is the plaintiff, Lonnie Kim Severt, entitled to recover for property damage?

    The trial court then gave the following relevant instructions to the jury:
        Again, question 3 reads as follows: What amount, if any, is the Plaintiff, Lonnie Kim Severt, entitled to recover for personal injury. Again, if you have answered either the first or second issue, Yes, in favor of the Plaintiff, the Plaintiff is entitled to recover nominal damages even without proof of any actual damages.

        Nominal damages are defined as some trivial amount such as One Dollar in recognition of a technical injury to the Plaintiff.


        Finally as to this third issue on which the Plaintiff has the burden of proof, if you find by the greater weight of the evidence an amount of actual damages proximately caused by the negligence of the Defendant, then it would be your duty to write that amount in the space on the verdict sheet. If, on the other hand you fail to so find, it would be your duty to write a nominal sum such as One Dollar in the blank provided.
    The jury then delivered its verdict answering “no” to question number 1 (negligence of defendant Cox), answering “yes” to question number 2 (negligence of defendant Harris), awarding plaintiff $0.00 for personal injury, and awarding plaintiff $1,000.00 for his property damage.
    Plaintiff argues that the jury failed to follow the Court's instructions in that they failed to award any amount to plaintifffor personal injury. The issues as presented to the jury, and to which plaintiff consented, however, inquired as to whether the plaintiff was “injured or damaged” by the negligence of the respective defendants. Taking the issues presented on their face, it is clear that by using the word “or” the instructions permitted the jury to consider the issues of personal injury and property damage separately and independently. By answering “yes” to this question, the jury could have meant that plaintiff sustained personal injury or property damage or both. By awarding damages only for property damage, we infer that the jury did not find that plaintiff's injuries were the result of the accident, but found that the damage to his truck was. This verdict is entirely consistent with the wording of the issues. This assignment of error is overruled.
    No error.
    Chief Judge EAGLES and Judge MCGEE concur.
    Report per Rule 30(e).

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