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  "name_abbreviation": "Worthington v. Bynum",
  "decision_date": "1981-08-18",
  "docket_number": "No. 803SC1021",
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    "judges": [
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    "parties": [
      "BEN F. WORTHINGTON v. WILLIAM ANDERSON BYNUM and JESSE COGDELL, JR. v. WILLIAM ANDERSON BYNUM"
    ],
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      {
        "text": "BECTON, Judge.\nPlaintiffs phrased their sole question for review thusly: \u201cDid the trial court err in granting defendant\u2019s motion to set aside the jury\u2019s verdicts in favor of each plaintiff and in failing to enter order denying said motion and in refusing to enter judgment in favor of each plaintiff in accordance with the jury\u2019s verdicts?\u201d On the facts of this case, the answer to the question is \u201cyes.\u201d\nWe are not unmindful of the long line of cases suggesting that few, if any, legal principles are more firmly entrenched in the law of this State than the one which vests a trial judge with the power and authority to set aside a verdict when to do so is necessary for the proper administration of justice. Indeed, the cases upholding this principle are legion.\nWe have held repeatedly since 1820 in case after case, and no principle is more fully settled in this jurisdiction, that the action of the trial judge in setting aside a verdict in his discretion is not subject to review on appeal in the absence of an abuse of discretion.\nGoldston v. Chambers, 272 N.C. 53, 59, 157 S.E. 2d 676, 680 (1967). One of those many cases is Settee v. Electric Ry., 170 N.C. 365, 367, 86 S.E. 1050, 1050-51 (1915) in which the Supreme Court said:\nThe discretion of the judge to set aside a verdict is not an arbitrary one to be exercised capriciously or according to his absolute will, but reasonably and with the object solely of [preventing] what may seem to him an inequitable result. The power is an inherent one, and is regarded as essential to the proper administration of the law. It is not limited to cases where the verdict is found to be against the weight of the evidence, but extends to many others. While the necessity for exercising this discretion, in any given case, is not to be determined by the mere inclination of the judge, but by a sound and enlightened judgment in an effort to attain the end of all law, namely, the doing of even and exact justice, we will yet not supervise it, except, perhaps, in extreme circumstances, not at all likely to arise; and it is therefore practically unlimited.\nIn determining whether a trial judge abused his discretion in setting aside a jury award of damages, we are not only guided by case law, but we are also guided by the will of the people through the legislature. G.S. 1A-1, Rule 59(a) sets out nine grounds upon which the trial court may grant a new trial. Two of the grounds are applicable to this case, and we set them out below:\n(6) Excessive or inadequate damages appearing to have been given under the influence of passion or prejudice;\n(7) Insufficiency of the evidence to justify the verdict or that the verdict is contrary to law; . . .\nWe recognize two separate and distinct standards \u201cfor determining what is a sufficient abuse of discretion to warrant a reversal of a trial court\u2019s ruling on a Rule 59 motion.\u201d Howard v. Mercer, 36 N.C. App. 67, 69, 243 S.E. 2d 168, 170, disc. rev. granted, 295 N.C. 466, 246 S.E. 2d 9 (1978) (petition withdrawn on motion by defendant). First, when a motion for a new trial has been denied, deference to the trial court and deference to the jury\u2019s determination combine and compel us to a restricted review of the trial court\u2019s ruling. However, under the second standard, when a motion for a new trial is granted, deference to the trial court\u2019s determination is counterbalanced by deference to the jury\u2019s determination of matters of fact. This court in Howard approved the following guidelines which were first set forth in Taylor v. Washington Terminal Co., 409 F. 2d 145 (D.C. Cir.), cert. denied, 396 U.S. 835, 24 L.Ed. 2d 85, 90 S.Ct. 93 (1969) for determining when an abuse of discretion has occurred:\nWhere the jury finds a particular quantum of damages and the trial judge refuses to disturb its finding on the motion for a new trial, the two factors [the jury\u2019s determination and the judge\u2019s determination] press in the same direction, and an appellate court should be certain indeed that the award is contrary to all reason before it orders a remittitur or a new trial. However, where, as here, the jury as primary fact-finder fixes a quantum, and the trial judge indicates his view that it is excessive by granting a remittitur, the two factors oppose each other. The judge\u2019s unique opportunity to consider the evidence in the living courtroom context must be respected. But against his judgment we must consider that the agency to whom the Constitution allocates the fact-finding function in the first instance \u2014 the jury \u2014 has evaluated the facts differently.\n[W]e will reverse the grant of a new trial for excessive verdict only where the quantum of damages found by the jury was clearly within \u201cthe maximum limit of a reasonable range.\u201d 409 F. 2d at 147-149.\nHoward v. Mercer, 36 N.C. App. at 70-71, 243 S.E. 2d at 171.\nOur determination that the quantum of damages found by the jury was clearly within the \u201cmaximum limit of a reasonable range\u201d is based on the following facts.\nAt the time of the accident, Worthington was sixty years of age and in good health; he had a life expectancy of 17.61 years. He was out of work a total of twenty-five and one-seventh weeks as a result of the accident, but did not sustain any loss of income. Worthington\u2019s major injuries can be summarized as follows:\n1. Broken back \u2014 The left first lumbar vertebrae was fractured, and a spinal fusion was performed on 6 June 1977. Worthington was held motionless in a frame until approximately one month after the accident. At that time, he was placed in a body cast for approximately two months. Thereafter, Worthington was required to wear a Jewitt brace, a padded metal device that immobilizes the spine.\n2. Cerebral concussion.\n3. Contusions and abrasions of the left knee \u2014 The knee became infected, but was treated and required no surgery.\n4. Tardy ulnar nerve palsy \u2014 As a likely result of either the accident or the lengthy bed rest required of him, Worth-ington developed tardy ulnar nerve palsy of the left hand, which initially caused severe loss of grip and loss of sensation in the left hand. Ultimately, Worthington\u2019s left elbow was operated on to relieve pressure on the nerve.\nAs a result of the accident, Worthington had to learn to walk again. He presently has difficulty doing some of the maintenance, repair work, and gardening around his house which he did prior to the accident, and he has to rest at work because he gets tired and hurts occasionally. As a result of the accident, Worthington has suffered a 30% permanent partial disability of his back; a 7% permanent partial disability of the left knee; and a 5% permanent partial disability of his left hand, including a permanently crooked little finger. Worthington\u2019s medical bills were $9,893.45. He was hospitalized for the periods of 23 May 1977 through 25 June 1977, 26 August 1977 through 1 September 1977, and 10 January 1978 through 12 January 1978.\nAt the time of the accident, Cogdeli was forty-two years old and in good health. As a result of the accident, Cogdeli was out of work twenty-four and one-seventh weeks but sustained no loss of income.\nCogdeli suffered the following major injuries:\n1. Broken neck \u2014 Cogdeli suffered from a broken bone in his neck which required an operation involving a spinal fusion which included the removal of the disk between the C-6 and C-7 vertebrae. The disc was replaced with a bone from Cogdell\u2019s hip. In order to immobilize Cogdell\u2019s neck, thirty to forty-pound metal tongs were placed in his skull. As a result of the spinal fusion and subsequent treatment, the vertebrae in his neck returned to the proper place and, although there was no damage to the spinal cord, there was injury to the nerve roots in Cogdell\u2019s neck. The metal tongs which were placed in Cogdell\u2019s head remained there for approximately one and one-half months during which time Cogdell could not move.\n2. Neurological deficit of arm and hand \u2014 After the accident Cogdell suffered from a weak grip in both hands (at times his hands were numb) and from weak triceps in both arms.\nAs a result of the accident, Cogdell had to learn to walk again. He also suffered a 20\u00b0/o permanent partial disability of his whole person, including 20% permanent partial disability of his neck and 10% permanent partial disability of his right arm. The healed fusion in Cogdell\u2019s neck does not allow complete, normal neck movement. Indeed, his neck injury may cause degenerative arthritis. Even now, Cogdell experiences pain in his neck when he works, and the fingers on his right hand are always numb and have a tendency toward cramping. Further, as a result of the bone graft taken from his right hip, Cogdell suffered pain and discomfort in that area. Cogdell\u2019s medical bills totalled $7,740.65.\nApplying the considerations outlined in Howard to the plaintiffs\u2019 cases, we hold that both verdicts were clearly within the maximum limits of a reasonable range. That, however, does not end the inquiry. When a motion is made under Rule 59(a)(6) an appellate court must also determine if the verdict was given under the influence of passion or prejudice. Defendant\u2019s argument on this issue is bottomed upon the trial court\u2019s statement just prior to entering the Order on 27 May 1980:\nGentlemen, I don\u2019t intend to catalog, but time and again I tried to instruct that jury to disregard things that seemed to me to be improper that kept coming up. It was an extremely volatile situation. I am satisfied that that jury completely disregarded many of my instructions. I don\u2019t understand that in view of all the evidence. It is my opinion that the verdict in each of the cases was excessive and I am, therefore, ordering Mr. Gaylord to prepare an order preparing [sic] a new trial as to each plaintiff.\nDefendant argues that the \u201cimproper\u201d things that \u201ckept coming up\u201d were plaintiffs\u2019 efforts to get before the jury (1) evidence of their sex lives before and after the accident; (2) evidence that plaintiff Worthington lost teeth as a result of the accident; and (3) evidence suggesting that plaintiff Worthington had visual problems and psychiatric problems as a result of the accident. We have a two-fold response to defendant\u2019s argument: (1) the proffered evidence was admissible; and (2) the trial judge\u2019s feeling that the jury completely disregarded many of his instructions is not enough, standing alone, to support a conclusion that the verdicts were given under the influence of passion or prejudice.\nWe now address the allegedly improper things that kept coming up and demonstrate that the evidence which defendant now challenges was admitted (without objection), or was admissible, or was non-prejudicial.\na) Sexual Function\nIn instructing the jury the trial court said: \u201cThe question of sexual function was mentioned a few times ... I instruct you that there is no evidence before you to this effect, and you are not to consider anything relating to sexual function [in arriving at your verdict] . . . .\u201d First, we find from our review of the record, testimony relating to \u201csexual function\u201d to which neither an objection was lodged nor a motion to strike made. For example, Dr. Timmons testified on direct examination: \u201cI referred [plaintiff Cogdell] to Dr. Walsh and Dr. Gavigan because Jesse was complaining then of abnormal sex function.\u201d On cross-examination Dr. Timmons testified: \u201cI also stated that the only problems are some persisting weakness in his right hand . . . and the diminution of sex function.\u201d Clearly, then, there was evidence before the jury relating to sexual function. Second, the record does not fully support defendant\u2019s assertion that the trial court felt that evidence of sexual function was incompetent. Indeed, all of record pages 170 and 171 deal with the following question: \u201cMr. Worthington, will you describe your sex life with your wife prior to May 23, 1977?\u201d The trial court on seven different occasions overruled the objections. It was only because Mr. Worthington on each separate occasion sought to tell about his sex life after the accident that the trial court then sustained the objection and struck the answ\u00e9r as being unresponsive. Finally, after the third unrecorded conference at the bench on this matter, the Court said:\nLadies and gentlemen, these last three questions and answers relating to sexual relations, the motions to strike are allowed and I instruct you that you are not to consider the questions and answers to those.\nWe cannot say, in view of the trial court\u2019s initial decision to admit responsive answers to properly phrased questions relating to sexual function and in view of the subsequently admitted testimony relating to sexual function, that the trial court was convinced that evidence of sexual function was incompetent.\nThird, and more important, evidence of loss of \u201csexual function\u201d is clearly relevant and should have been considered by the jury. We reject outright defendant\u2019s argument that expert medical testimony, that plaintiffs \u201csex life, or some part thereof, could or might have been damaged on account of the injuries received by him in the collision complained of,\u201d is needed.\nb) Teeth\nIn instructing the jury, the trial court said: \u201c[TJhere has been some reference made to Mr. Worthington\u2019s teeth. I instruct you that you are not to consider such evidence in arriving at your verdict in this case.\u201d During the trial, however, the following transpired:\nQ. [To Mrs. Worthington] You say two of his teeth were out?\nA. That is right.\nCOURT: I believe I am going to \u2014 there is no evidence that they were not out before. I am going to sustain that. Don\u2019t consider that about the teeth.\n[Mrs. Worthington continued]: I saw my husband that morning before he went to work and before he went to work he had all of his teeth. That night when I saw him I saw that two of his teeth were out and two were hanging.\nWhile the trial court properly sustained an earlier objection that had initially been overruled because the question assumed a fact not in evidence, Mrs. Worthington later gave competent and relevant testimony about Mr. Worthington\u2019s loss of teeth. Consequently, the court should not have instructed the jury to disregard the references made to teeth. Defendant\u2019s argument that this evidence was improper because plaintiff Worthington did not mention loss of teeth in his Complaint or his Answers to Interrogatories is rejected.\nc) Visual Problems and Psychiatric Problems\nAccording to defendant, \u2018\u2018[t]he jury could well have thought \u2014 and probably did \u2014 that since Dr. Sudor [an optometrist] testified regarding the sight of Mr. Worthington that some damage must have been sustained by Mr. Worthington with respect to his sight \u2014 else why would the doctor be testifying.\u201d We find no evidence in the record to suggest that defendant is doing anything more than speculating with respect to this argument. The trial court\u2019s instructions which follow are dispositive of this issue:\nLikewise, there was evidence relating to Mr. Worthington\u2019s eyes. That evidence is admitted, as it may go to the reasonableness of the medical expenses incurred when Dr. Bowman referred him to Dr. White. But it has been stipulated, you will recall, members of the jury, that there were no damages to his eyesight as a result of the collision. So, of course, you would not consider any such evidence as damages in this case.\nWe find nothing in the record to suggest that the jury disregarded this instruction. And even if the jury disregarded this instruction, we do not see how such evidence could have increased the verdicts which we have already found to be within the maximum limits of a reasonable range.\nDefendant suggests that the jury may have been inflamed because plaintiff Worthington testified that \u201cDr. Bowman, during the time I was under his care, referred me to Dr. Robert Sam-mons.\u201d Although no objection or motion to strike the testimony was made at trial, defendant argues on appeal that \u201c[tjhough no mention was made of Dr. Sammons\u2019 medical specialty, Greenville (N.C.) is a relatively small city and it is reasonable to assume that many persons serving on the jury knew Dr. Sammons to be a psychiatrist.\u201d We refuse to indulge in such speculation or surmise. Even if it is not a sufficient answer to say that defendant did not object to the testimony, it is clearly a sufficient answer to say that similar, and by defendant\u2019s obvious standard, more damaging testimony was given by Dr. Bowman himself. Dr. Bowman referred plaintiff Worthington to five different specialists and testified: \u201cI also referred Mr. Worthington to Dr. Phillip Nelson whose specialty is psychiatry.\u201d (Emphasis added.)\nWe find no evidence to support or suggest (a) that the verdicts in these cases were given under the influence of either passion or prejudice; (b) that the jury disregarded the trial court\u2019s instructions; or (c) that the verdicts were contrary to law. Indeed, the amount of medical expenses, the severity and diversity of the injuries, the permanent disabilities, and the extensive evidence of pain and suffering of each plaintiff impel us to conclude that the verdicts were clearly within the maximum limit of a reasonable range. The fact that the jury considered its verdict for approximately thirty minutes simply shows the degree of unanimity as to the verdicts and adds emphasis to the fact that the jury unanimously believed that both Worthington and Cogdell had sustained substantial damages.\nThe trial court abused its discretion in setting aside the verdict for Cogdell in the amount of $150,000.00 and in setting aside the verdict for Worthington in the amount of $175,000.00. Therefore, we reverse and remand to the trial court for entry of judgment in accordance with the verdicts.\nReversed and remanded.\nJudge Whichard concurs.\nJudge Martin (Robert M.) dissents.\n. Prior to the enactment and effective date of the North Carolina Rules of Civil Procedure, G.S. Chapter 1A (effective 1 January 1970), trial judges could set aside a verdict and grant a new trial \u201cupon exceptions, or for insufficient evidence, or for excessive damages\u201d under the then existing law, G.S. 1-207.\n. The Taylor ease was decided under Federal Rule 59 which is similar to North Carolina Rule 59.\n. We note that the trial court expressed a different sentiment immediately after the jury had been excused and following defendant\u2019s motion to set the verdict aside on 16 May 1980. The trial court said: \u201cI will tell you what I am going to do. I am going to consider this and am going to make a ruling at 2:00 p.m. Tuesday. I don\u2019t know whether you all would care to be present or not. I am going to be in Kinston and I will decide on this at that time. And if you all would be in touch with me it may be that you all would care to be heard further.\nI would like to think about it a little bit. That is what juries are for, hut it is a fairly sizeable verdict. But, again, well within what they asked.\" (Emphasis added.)",
        "type": "majority",
        "author": "BECTON, Judge."
      },
      {
        "text": "Judge WHICHARD\nconcurring.\nIn my view, Howard v. Mercer controls the decision here. 36 N.C. App. 67, 243 S.E. 2d 168, disc. rev. granted, 295 N.C. 466, 246 S.E. 2d 9 (1978) (petition withdrawn on motion of defendant). That case establishes, as the standard for granting or denying a motion to set aside a verdict and order a new trial on the issue of damages, the test of whether the verdict was within the maximum limit of a reasonable range. If the verdict was within the maximum limit of a reasonable range, the motion should be denied. If not, the motion should be granted. Considering the evidence in the record here, I find the verdicts clearly within the maximum limit of a reasonable range; and consequently I vote with Judge Becton to reverse the judgment below, and I concur in his able opinion except as hereinafter stated.\nI write this concurring opinion solely to state my view that under Howard it is no longer accurate to express the result of appellate review of trial court action on motions to set aside verdicts and grant new trials on the issue of damages in terms of the presence or absence of abuse of discretion. Howard establishes the legal test set forth above for determination of such motions. The trial court thus, in determining the motion, is not exercising its discretion. Rather, it is applying a legal standard. The appellate court is reviewing, not for abuse of discretion, but for error in applying the legal standard.\nJudge (now Justice) Britt recognized this in Howard by stating the issue as \u201cwhether the trial court erred in setting aside the verdict\u201d and the holding as \u201cthat the court erred.\u201d 36 N.C. App. at 68, 243 S.E. 2d at 169 (emphasis supplied). I believe that terminology is proper; and that to continue to speak in these cases in terms of abuse of discretion improperly perpetuates ancient language which the holding in Howard renders inapplicable and inaccurate.",
        "type": "concurrence",
        "author": "Judge WHICHARD"
      },
      {
        "text": "MARTIN (Robert M.), Judge,\ndissenting.\nIn his order granting defendant\u2019s post-trial motions by setting aside the verdicts and granting defendants new trials on the issues of damages, Judge Peel recited the grounds for defendants\u2019 motions as follows:\n(1) That there was a manifest disregard by the jury of the instructions of the Court,\n(2) Excessive damages appearing to have been given in each case under the influence of passion or prejudice, and\n(3) The insufficiency of the evidence to justify the verdict in each case and that said verdict in each case is contrary to law.\nWhile a trial court is not required to specify grounds for its order allowing a litigant\u2019s motion to set aside the verdict and grant a new trial, Glen Forest Corp. v. Bensch, 9 N.C. App. 587, 176 S.E. 2d 851 (1970), Judge Peel adopted the reasons stated in defendants\u2019 motions as his own by reciting them in his order and -by giving no further or contrary reason for granting defendants\u2019 motions. The three grounds stated are listed in N.C. Gen. Stat. \u00a7 1A-1, Rule 59(a) in subsections (5), (6) and (7), respectively. Unless an abuse of discretion is shown, any one of these reasons justified Judge Peel\u2019s action in allowing defendants\u2019 motions.\nAs Chief Justice Sharp stated in Britt v. Allen, 291 N.C. 630, 635, 231 S.E. 2d 607, 611-612 (1977),\nThe adoption of the Rules of Civil Procedure (N.C. Sess. Laws 1967, ch. 954, \u00a7 4, effective 1 January 1970; N.C. Sess. Laws 1969, ch. 803, \u00a7 1) and the repeal of G.S. 1-207 (1953) did not diminish the trial judge\u2019s traditional discretionary authority to set aside a verdict. The procedure for exercising this traditional power was merely formalized in G.S. 1A-1, Rule 59, which lists eight specific grounds and one \u201ccatch-all\u201d ground on which the judge may grant a new trial.\nChief Justice Sharp also stated, \u201c \u2018[t]he power of the court to set aside the verdict as a matter of discretion has always been inherent, and is necessary to the proper administration of justice.\u2019 Bird v. Bradburn, 131 N.C. 488, 489, 42 S.E. 936 (1902).\u201d Id. at 634, 231 S.E. 2d at 611. This Court has held many times that a motion to set aside the verdict and for a new trial on grounds other than some question of law or legal inference which the judge decides is addressed to the sound discretion of the trial judge, whose ruling, in the absence of abuse of discretion, is not reviewable on appeal. Land Co. v. Wood, 40 N.C. App. 133, 252 S.E. 2d 546 (1979); Hoover v. Kleer-Pak, 33 N.C. App. 661, 236 S.E. 2d 386, rev. denied, 293 N.C. 360, 237 S.E. 2d 848 (1977); Board of Transportation v. Harvey, 28 N.C. App. 327, 220 S.E. 2d 815 (1976); Glen Forest Corp. v. Bensch, supra.\nThe record discloses that after hearing evidence for five days, the jury determined the issues in thirty minutes. In my opinion the record does not show that the able and conscientious trial judge abused his discretion.\nI vote to affirm.",
        "type": "dissent",
        "author": "MARTIN (Robert M.), Judge,"
      }
    ],
    "attorneys": [
      "James, Hite, Cavendish & Blount, by M. E. Cavendish and Marvin Blount, Jr., for plaintiff appellants.",
      "Gaylord, Singleton & McNally, by Louis W. Gaylord, Jr., for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "BEN F. WORTHINGTON v. WILLIAM ANDERSON BYNUM and JESSE COGDELL, JR. v. WILLIAM ANDERSON BYNUM\nNo. 803SC1021\n(Filed 18 August 1981)\nDamages \u00a7 16; Rules of Civil Procedure \u00a7 59\u2014 verdict set aside for excessive damages \u2014 error\nIn an action to recover damages for personal injuries sustained in an automobile accident, the trial court erred in setting aside as excessive a verdict for one plaintiff of $175,000 and a verdict for the second plaintiff of $150,000, since evidence of the amount of medical expenses, the severity and diversity of the injuries, the permanent disabilities, and the extensive evidence of pain and suffering of each plaintiff was sufficient to show that the verdicts were clearly within the maximum limit of a reasonable range; there was no evidence to support or suggest that the verdicts were given under the influence of either passion or prejudice, that the jury disregarded the trial court\u2019s instructions, or that the verdicts were contrary to law. Furthermore, the trial court erred in concluding that evidence of plaintiffs\u2019 sex life before and after the accident, evidence that one plaintiff lost teeth as a result of the accident, and evidence that one plaintiff had visual problems and psychiatric problems as a result of the accident were \u201cimproper things\u201d that \u201ckept coming up\u201d and that the jury completely disregarded his instructions with respect to such evidence.\nJudge Whichard concurring.\nJudge Martin (Robert M.) dissenting.\nAPPEAL by plaintiffs from Peel, Judge. Judgment enterecf 27 May 1980 in Superior Court, Pitt County. Heard in the Court of Appeals 29 April 1981.\nPlaintiffs filed separate complaints seeking to recover compensatory and punitive damages for personal injuries which they allegedly received when defendant\u2019s automobile negligently collided with the vehicle in which the plaintiffs were passengers on 23 May 1977. The two cases were consolidated for trial, and the defendant stipulated negligence. The damage trial began on 12 May 1980. After all the evidence was presented, the trial court granted defendant\u2019s motions for directed verdict on the punitive damages claims in both cases. After receiving the court\u2019s instructions on compensatory damages, the jury deliberated for approximately thirty minutes and then returned verdicts for plaintiff Worthington in the amount of $175,000.00 and for plaintiff Cogdell in the amount of $150,000.00. Defendant moved to set aside the verdicts and for a new trial under Rule 59 of the Rules of Civil Procedure. The plaintiffs moved for a judgment in accordance with the jury verdicts. The trial court entered an order setting aside the verdicts and awarding a new trial.\nJames, Hite, Cavendish & Blount, by M. E. Cavendish and Marvin Blount, Jr., for plaintiff appellants.\nGaylord, Singleton & McNally, by Louis W. Gaylord, Jr., for defendant appellee.\n. By consent, judgment was entered out of session in the Lenoir County Superior Court."
  },
  "file_name": "0409-01",
  "first_page_order": 437,
  "last_page_order": 449
}
