Smith v. Beasley , 41 N.C. App. 741 ( 1979 )

VAUGHN, Judge.

Plaintiff first contends that the trial court erred in instructing the jury that a “verdict is not a verdict until all 12 of your minds concur.” Plaintiff argues that this instruction was insufficient to prevent the jury from reaching a compromise verdict or a verdict by majority vote when the entire charge is considered. We have no reason to believe that the jury was misled or confused by this instruction. See Boyer v. Boyer, 20. N.C. App. 637, 202 S.E. 2d 297, cert. den., 285 N.C. 233, 204 S.E. 2d 22 (1974). This assignment of error is overruled.

Plaintiff next contends that the jury verdict was inadequate because they failed to make any award for pain and suffering. Plaintiff asserts that her out-of-pocket expenses were over $3,800.00 and, therefore, the jury’s award of $3,350.00 could not have included any award for pain and suffering. The general rule is that “ ‘[t]he granting or the denying of a motion for a new trial on the ground that the damages assessed by the jury are excessive or inadequate is within the sound discretion of the trial judge.’ ” (Citations omitted.) Robertson v. Stanley, 285 N.C. 561, 563, 206 S.E. 2d 190 (1974), reversing the decision of this Court in the same case reported in 21 N.C. App. 55, 203 S.E. 2d 83 (1974). The trial court’s ruling should not be reversed unless a clear abuse has been shown. See Howard v. Mercer, 36 N.C. App. 67, 243 S.E. 2d 168 (1978). In Robertson v. Stanley, supra, the minor plaintiff and his father sued defendant for damages resulting from defendant hitting plaintiff with his car in a drive-in theater. The parties stipulated as to the medical bills incurred and plaintiff produced evidence of pain and suffering. The jury found that defendant was negligent and awarded plaintiff’s father damages in the amount of the medical expenses. They awarded plaintiff nothing for his personal injury. Plaintiff’s motion for a new trial was denied and plaintiff appealed. The Supreme Court reversed, finding that the jury had arbitrarily ignored plaintiff’s evidence of pain and suffering. “If the minor plaintiff was entitled to a verdict against defendant by reason of personal injuries suffered as a result of defendant’s negligence, then he was entitled to all damages that the law provides in such cases.” Robertson v. Stanley, supra, at 566.

Robertson, however, is distinguishable from the present case. Here the amount of plaintiff’s medical expenses, lost wages and lost benefits were disputed while in Robertson the medical expenses were stipulated. The dissent in the Robertson case when it was decided in the Court of Appeals pointed out

“By its answer to the issues the jury found that this minor was injured by the sole negligence of defendant and then said that he was not entitled to recover anything for these injuries. Obviously the jury made a mistake which the trial judge should have, on his own motion, corrected by setting the verdict aside and ordering a new trial.” Robertson v. Stanley, 21 N.C. App. 55, 58, 203 S.E. 2d 83 (1974).

The jury is entitled to believe or disbelieve all or part of plaintiff’s evidence. The jury could have failed to believe that all of plaintiff’s medical expenses, lost wages and other special damages that she sought to prove were caused by the accident. Certainly they were not compelled to so find and neither were they required to believe the testimony as to the nature, extent and cause of her pain. We do not conclude, therefore, that the jury arbitrarily ignored plaintiff’s evidence and rendered an inconsistent verdict or one not in accordance with the law. See Brown v. Moore, 286 N.C. 664, 213 S.E. 2d 342 (1975). The judge did not abuse his discretion when he declined to set the verdict aside. This assignment of error is overruled.

We have carefully considered plaintiff’s remaining assignments of error and conclude that no error has been shown which would require a new trial.

No error.

Judge Carlton concurs. Judge CLARK dissents.