King v. Higgins

158 S.E.2d 67 (1967)

272 N.C. 267

Virginia R. KING, Plaintiff, v. John J. HIGGINS and T & A Trucking Company, a corporation, Defendants.

No. 686.

Supreme Court of North Carolina.

December 13, 1967.

*69 Hines & Dettor, Greensboro, for plaintiff appellant.

Smith, Moore, Smith, Schell & Hunter, Greensboro, for defendants appellees.

PER CURIAM.

"It is almost the universal opinion that recovery may be had for mental or emotional disturbance in ordinary negligence cases where, coincident in time and place with the occurrence producing the mental stress, some actual physical impact or genuine physical injury also resulted directly from defendant's negligence." Williamson v. Bennett, 251 N.C. 498, 112 S.E.2d 48. See also King v. Britt, 267 N.C. 594, 148 S.E.2d 594. In the present case the jury was instructed that the plaintiff, if entitled to recover at all, was to be awarded in a lump sum a fair and reasonable compensation for all of her injuries, past and prospective, including "actual suffering both of body and mind." There is no error in that portion of the charge quoted above in the statement of facts, to which the plaintiff excepted. It is in accord with the decision of this Court in Mintz v. Atlantic Coast Line R. Co., 233 N.C. 607, 611, 65 S.E.2d 120. Furthermore, the plaintiff, having requested an instruction in almost the exact language used, cannot complain of it as error entitling her to a new trial. Overton v. Overton, 260 N.C. 139, 144, 132 S.E.2d 349; Carruthers v. Atlantic & Y. Ry. Co., 218 N.C. 377, 11 S.E.2d 157.

The contention that the court did not give the remainder of the instruction requested by the plaintiff is also without merit. Much of such remainder of the requested instruction was given in substance though not in the precise language of the request. In this there was no error since the court is not required to charge the jury in the precise language of the request so long as the substance of the request is included in language which does not weaken its force. Dinkins v. Booe, 252 N.C. 731, 114 S.E.2d 672; Lloyd v. Bowen, 170 N.C. 216, 86 S.E. 797.

It was not error for the court to refuse to give the definition of "mental suffering" contained in the request. The definition or explanation of the term so requested included, among other things, "mortification", "embarrassment", "humiliation", "grief," and "disfiguring or humiliating" injuries. The plaintiff did not testify to any feeling of humiliation or embarrassment as a result of her injuries, and since there was no evidence of any disfiguring injury, there was no basis for an implication of this type of mental suffering *70 such as was present in King v. Britt, supra. There being no evidence of this type of mental suffering, the plaintiff was not entitled to her request that the jury might consider it in determining the amount to be awarded as damages. A requested instruction which is not, in its entirety, a correct statement of the law applicable to the evidence may be refused, the court being under no duty to modify or qualify it so as to remedy the defect therein. Washington Horse Exchange v. Louisville & N. R. Co., 171 N.C. 65, 87 S.E. 941; Edwards v. Western Union Telegraph Co., 147 N.C. 126, 60 S.E. 900.

The charge of the court below, considered in its entirety, properly states the measure of damages and the elements of the plaintiff's injury to be considered by the jury in the light of the evidence in the record. We find in it no error which would justify a new trial.

No error.