LONNIE KIM SEVERT,
Plaintiff,
v
.
Ashe County
No. 00 CVS 157
ROBERT DOYLE COX, HERMAN
J. COX, JR., and KYLE RAY
HARRIS,
Defendant.
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?
Answer:
2. Was the plaintiff, Lonnie Kim Severt,
injured or damaged by the negligence of
the defendant, Kyle Harris?
Answer:
3. What amount, if any, is the plaintiff,
Lonnie Kim Severt, entitled to recoverfor personal injury?
Answer:
4. What amount, if any, is the plaintiff,
Lonnie Kim Severt, entitled to recover
for property damage?
Answer:
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).
*** Converted from WordPerfect ***