Gregory Poole Equipment Co. v. Davis

422 S.E.2d 742, 108 N.C. App. 61, 1992 N.C. App. LEXIS 833

• Court: Court of Appeals of North Carolina
• Decided: November 3, 1992
• Docket: No. 918SC1049
• Status: Published

Opinion

HEDRICK, Chief Judge.

The record indicates that Judge Fountain peremptorily instructed the jury on the one issue submitted to it as follows:

The COURT: Ladies and Gentlemen of the jury this is a civil action wherein the plaintiff seeks to recover on account for the purchase of two log skidders, and an open account. The defendant has filed an answer in which he has denied that he’s indebted to the plaintiff in the amounts claimed by the plaintiff.

One issue will be submitted to you. And that simply means one question will be submitted to you, and your answer to that question will constitute your verdict. It reads as follows: “What amount, if any is the defendant” — that is Mr. Davis — “indebted to the plaintiff” — that is Gregory Poole Company?

So, if you find from the evidence the facts to be as all the evidence tends to show, you will award the plaintiff the sum of $89,542.42. If you do not so find, you will answer it “nothing.”

Defendant argues the trial court erred in setting aside the verdict and ordering a new trial. We disagree.

The trial judge has the discretionary power to set aside a verdict or grant a new trial when, in his opinion, it would work injustice to let the jury’s verdict stand; and, if no question of law or legal inference is involved, his action in so doing is not subject to review on appeal in the absence of a clear abuse of discretion. Seaman v. McQueen, 51 N.C. App. 500, 277 S.E.2d 118 (1981). The record discloses no abuse of discretion on the part of the trial judge in setting aside the verdict and ordering a new trial. The appeal is dismissed.

Dismissed.

Judges Arnold and Wells concur.