Callicutt v. Smith

148 S.E.2d 9 (1966)

267 N.C. 252

J. H. CALLICUTT v. Douglas SMITH.

No. 615.

Supreme Court of North Carolina.

May 4, 1966.

*10 John Randolph Ingram, Asheboro, for defendant appellant.

Jordan, Wright, Henson & Nichols, by G. Marlin Evans, Greensboro, for plaintiff appellee.

PER CURIAM.

At the beginning of the defendant's argument in the Superior Court, his attorney attempted to present to the jury a large chart setting forth the defendant's life expectancy and a number of computations to support a verdict far in excess of the amount sued for. Upon objection by the plaintiff, it was excluded and the defendant complains that this was error. While counsel is allowed wide latitude in argument to the jury, and to use figures and calculations in support of his position, he, in effect, was attempting to use this chart as an exhibit which had never been introduced in evidence. The exception is untenable.

The defendant excepts to the court's instruction on damages, but upon examining it, it is found to be an almost verbatim statement of the rule of damages as taken from Ledford v. Valley River Lumber Co., 183 N.C. 614, 112 S.E. 421 (1922). It has been used as an accurate statement by the judges of the Superior Court for many years and has been approved by this Court in numerous cases. These exceptions are without merit.

While it is true that the defendant's evidence showed serious and painful injuries, and substantial hospital and medical expense as a result, the amount awarded by the jury indicates that it had difficulty in arriving at a verdict in favor of the defendant. This was reflected by the length of time taken for its deliberations, as well as the amount awarded. This phase of the matter was presented to the trial judge upon the insistence of the defendant that the amount was so small that it went against the greater weight of the evidence. We have frequently held that this kind of motion is within the sound discretion of the trial judge, Dixon v. Young, 255 N.C. 578, 122 S.E.2d 202, and it was held in Brown v. Griffin, 263 N.C. 61, 138 S.E.2d 823 that "(t)he judge had the discretionary power to set the verdict aside; but he was not compelled to act." Abuse of discretion is not shown and after fully considering all of the defendant's exceptions, we find that in the trial there was

No error.

MOORE, J., not sitting.