Lusk v. Case

379 S.E.2d 651 (1989)

Homer LUSK v. Jerry Wallace CASE, Jr.

No. 8828SC1010.

Court of Appeals of North Carolina.

June 6, 1989.

*652 Baley, Baley & Clontz, P.A. by Stanford K. Clontz, Asheville, for plaintiff-appellant.

Frank J. Contrivo, Asheville, for defendant-appellee.

LEWIS, Judge.

Plaintiff brings forward in his brief several assignments of error grouped into two basic arguments. Plaintiff contends that the trial court erred in denying his request for a jury instruction on activation of a dormant condition. He also contends that the trial court abused its discretion and erred in denying his G.S. 1A-1, Rule 59(a) motion for a new trial and entering judgment upon the verdict. We have reviewed the record on appeal and find the proceedings below free of prejudicial error.

"Where a requested instruction is not submitted in writing and signed pursuant to G.S. 1-181 it is within the discretion of the court to give or refuse such instruction." State v. Harris, 67 N.C.App. 97, 102, 312 S.E.2d 541, 544, disc. rev. denied, 311 N.C. 307, 317 S.E.2d 905 (1984). Plaintiff did not submit a written request so it was within the trial judge's discretion whether to give the "activation" instruction.

A trial judge is required to instruct a jury on the law arising from the evidence presented. Watson v. White, 60 N.C.App. 106, 298 S.E.2d 174 (1982), rev'd on other grounds, 309 N.C. 498, 308 S.E.2d 268 (1983). Evidence in the case below revealed that at the time of the automobile collision, plaintiff was in the early stages of a progressive condition known as degenerative disc disease. Although plaintiff stated that prior to the collision he experienced no back pain, medical testimony failed to show that this lack of pain was unusual with this condition. What the evidence affirmatively showed and what the testimony of plaintiff's doctor revealed was that plaintiff's back strain, diagnosed as arising from the accident, "aggravated" or worsened the disc condition. Particularly revealing in light of the issue before us is the following exchange between plaintiff's attorney and plaintiff's doctor:

Q. All right. With regard to this disc, degenerative disc problem, do you have an opinion satisfactory to yourself and to a reasonable degree of medical certainty as to whether this problem could or might have been activated or aggravated by this motor vehicle collision injury... A. It is my impression that it was aggravated by the accident.

(Emphasis added). Given the nature of plaintiff's degenerative-type disease which worsens with time, and the testimony presented at trial regarding the effect of plaintiff's collision injury on that disease, the "aggravation" instruction given by the judge was proper and reflective of the evidence. The judge's refusal to submit plaintiff's orally requested instruction was not an abuse of discretion. Plaintiff's assignments of error relating to the instruction are overruled.

Finally, we address plaintiff's contention that the jury award was inadequate and that the trial court abused its discretion in not granting his motion for a new trial pursuant to G.S. 1A-1, Rule 59(a)(6). We do not agree.

A trial court's order granting or denying a new trial upon any ground enumerated in G.S. 1A-1, Rule 59 may be reversed on appeal only in those exceptional cases where abuse of discretion is clearly shown. Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982). G.S. 1A-1, Rule 59(a)(6) allows for a new trial when it is shown the excessive or inadequate award was given "under the influence of passion or prejudice"; plaintiff has presented no such evidence and none appears from the record. Plaintiff's argument is without merit.

For the foregoing reasons we find no error.

No error.

ARNOLD and GREENE, JJ., concur.