{ "id": 8519938, "name": "REGINALD CLETUS CRAVEN, JR. v. TIMOTHY ALLEN CHAMBERS", "name_abbreviation": "Craven v. Chambers", "decision_date": "1982-03-02", "docket_number": "No. 8121SC527", "first_page": "151", "last_page": "162", "citations": [ { "type": "official", "cite": "56 N.C. App. 151" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "245 S.E. 2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "422" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 690", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555405 ], "year": 1978, "pin_cites": [ { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0690-01" ] }, { "cite": "279 S.E. 2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565993, 8565962, 8566068, 8566037, 8566111 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0396-02", "/nc/302/0396-01", "/nc/302/0396-04", "/nc/302/0396-03", "/nc/302/0396-05" ] }, { "cite": "273 S.E. 2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "501" } ], "opinion_index": 0 }, { "cite": "50 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2675293 ], "year": 1980, "pin_cites": [ { "page": "69" } ], "opinion_index": 0, "case_paths": [ "/nc-app/50/0001-01" ] }, { "cite": "191 S.E. 2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "659" } ], "opinion_index": 0 }, { "cite": "282 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562551 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "26-28" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0001-01" ] }, { "cite": "82 S.E. 2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1954, "pin_cites": [ { "page": "109" } ], "opinion_index": 0 }, { "cite": "240 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598018 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0303-01" ] }, { "cite": "189 S.E. 2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "15 N.C. App. 284", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549914 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/15/0284-01" ] }, { "cite": "237 S.E. 2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "866" }, { "page": "867" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 283", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548441 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "285" }, { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/nc-app/34/0283-01" ] }, { "cite": "251 Miss. 37", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 1833636 ], "weight": 4, "year": 1964, "pin_cites": [ { "page": "42-43" }, { "page": "926" } ], "opinion_index": 0, "case_paths": [ "/miss/251/0037-01" ] }, { "cite": "156 A.L.R. 1115", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1945, "opinion_index": 0 }, { "cite": "92 S.E. 2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1956, "pin_cites": [ { "page": "396-97" }, { "page": "396" } ], "opinion_index": 0 }, { "cite": "244 N.C. 23", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219545 ], "weight": 2, "year": 1956, "pin_cites": [ { "page": "28" }, { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0023-01" ] }, { "cite": "190 S.E. 2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "15 N.C. App. 665", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553574 ], "year": 1972, "pin_cites": [ { "page": "669" } ], "opinion_index": 0, "case_paths": [ "/nc-app/15/0665-01" ] }, { "cite": "87 S.E. 2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "885" } ], "opinion_index": 0 }, { "cite": "242 N.C. 347", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614931 ], "year": 1955, "pin_cites": [ { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0347-01" ] }, { "cite": "201 S.E. 2d 194", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "20 N.C. App. 229", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551300 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/20/0229-01" ] }, { "cite": "58 N.C. L. Rev. 435", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1980, "pin_cites": [ { "page": "458" } ], "opinion_index": 0 }, { "cite": "55 S.E. 778", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1906, "pin_cites": [ { "page": "780" } ], "opinion_index": 0 }, { "cite": "143 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657834 ], "weight": 2, "year": 1906, "pin_cites": [ { "page": "403-04" } ], "opinion_index": 0, "case_paths": [ "/nc/143/0398-01" ] }, { "cite": "158 S.E. 2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "272 N.C. 267", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572630 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/272/0267-01" ] }, { "cite": "283 S.E. 2d 136", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565607, 8565714, 8565685, 8565655, 8565630 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0239-01", "/nc/301/0239-05", "/nc/301/0239-04", "/nc/301/0239-03", "/nc/301/0239-02" ] }, { "cite": "268 S.E. 2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "862" }, { "page": "862-63" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 680", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552067 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "690" }, { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0680-01" ] }, { "cite": "112 S.E. 2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1960, "pin_cites": [ { "page": "52" }, { "page": "52" }, { "page": "54" } ], "opinion_index": 0 }, { "cite": "251 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626336 ], "weight": 4, "year": 1960, "pin_cites": [ { "page": "504" }, { "page": "503" }, { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0498-01" ] } ], "analysis": { "cardinality": 1109, "char_count": 25285, "ocr_confidence": 0.797, "pagerank": { "raw": 1.2132696483123318e-07, "percentile": 0.5964820728930529 }, "sha256": "83701c65fa5095a799f70906625335f07b3e7bd8d78d0e8c2b5a6975290edc8f", "simhash": "1:9682ccea6a978cd2", "word_count": 4131 }, "last_updated": "2023-07-14T17:44:21.707745+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Hedrick and Judge Martin (Harry C.) concur." ], "parties": [ "REGINALD CLETUS CRAVEN, JR. v. TIMOTHY ALLEN CHAMBERS" ], "opinions": [ { "text": "BECTON, Judge.\nDefendant contends that the trial court erred in awarding attorney\u2019s fees and expert witness fees to plaintiff. On his cross-appeal, plaintiff contends that the trial court erred (1) in excluding testimony and medical bills from plaintiff\u2019s psychiatrist; (2) in not submitting an issue of punitive damages to the jury; and (3) in excluding testimony about plaintiff\u2019s physical and mental condition before and after the accident. Because defendant\u2019s issues can be summarily addressed, we discuss plaintiff\u2019s issues first.\nI\nRelying on Williamson v. Bennett, 251 N.C. 498, 112 S.E. 2d 48 (1960), the trial court excluded the testimony of Dr. Selwyn Rose, plaintiff\u2019s psychiatrist, concerning the physical and psychological injuries received by plaintiff in the automobile accident. The plaintiff contends the trial court erred in doing so, citing the more recent case of Wesley v. Greyhound Lines, Inc., 47 N.C. App. 680, 268 S.E. 2d 855 (1980), disc. review denied 301 N.C. 239, 283 S.E. 2d 136 (1980). We agree with plaintiff.\nHistorically, when there was no actual physical impact or physical injury, courts \u201cdisplayed considerable reluctance to extend recovery for mental distress and nervous disorders resulting from shock and fright to situations involving ordinary negligence.\u201d 251 N.C. at 504, 112 S.E. 2d at 52. In explaining this reluctance, Professor Prosser says: \u201cThe temporary emotion of fright, so far from serious that it does no physical harm, is so evanescent a thing, so easily counterfeited, and usually so trivial, that the courts have been quite unwilling to protect the plaintiff against mere negligence. . . .\u201d W. Prosser, The Law of Torts, \u00a7 54 at 329 (4th ed. 1971). Mental distress and nervous disorder cases have turned on their facts, however. When there is some in-dicia of trustworthiness, some guarantee that the claim is not spurious, courts have allowed recovery for mental and emotional disturbance. In Williamson our Supreme Court said: \u201cIt 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\u2019s negligence.\u201d 251 N.C. at 503, 112 S.E. 2d at 52.\nAlthough reversing the judgment awarding Williamson damages, the Williamson Court said: \u201c[t]he case at bar is factually unique even in its own category \u2014cases of fright, anxiety, and other emotional stress, unaccompanied by actual physical injury.\u201d 251 N.C. at 507, 112 S.E. 2d at 54. On the basis of the following facts, the Williamson Court was impelled to its conclusion that plaintiff failed to show that defendant\u2019s negligence was the cause which, \u201c \u2018in natural and continuous sequence, unbroken by any new and independent cause,\u2019 \u201d id., produced the plaintiff\u2019s injury:\nPlaintiff did not testify and does not now contend that she was frightened by the collision between her automobile and the defendant\u2019s sportscar. Neither does she assert that her anxiety was occasioned by the grinding sound along the left side of her car. . . . When the collision occurred she envisioned the possibility that she had collided with a nonexistent child on an imaginary bicycle. In short, she was not frightened by what actually happened but by what might have happened. It was not the collision that caused her anxiety, it was something that did not exist at all, a phantom child on a non-existent bicycle.\nId.\nTwenty years after Williamson this Court considered the application of Williamson to Wesley v. Greyhound, a case similar to the case sub judice. In Wesley, this Court stated:\nAlthough the Court denied recovery in Williamson, it did so because the plaintiffs injury was thought not to have been the proximate result of the defendant\u2019s acts, not because of a disavowal of the universal rule. That that was the case is evidenced by reiteration of the rule in King v. Higgins, 272 N.C. 267, 158 S.E. 2d 67 (1967). It is significant that under the rule, a plaintiff may recover if there is \u201csome actual physical impact or genuine physical injury.\u201d This alternative mode of proof justifying recovery is important because of the difficulty of defining \u201cphysical injury.\u201d See Kimberly v. Howland, 143 N.C. 398, 55 S.E. 778 (1906). Under whichever test used, we have no difficulty in finding that plaintiff has suffered a compensable injury.\n47 N.C. App. at 690, 268 S.E. 2d at 862.\nWesley involved the claim of a Greyhound Bus Lines passenger who was sexually assaulted as she waited in the lounge of the ladies\u2019 rest room for her ride. In Wesley, this Court said:\nPlaintiff presented evidence that since the sexual assault, she has had difficulty sleeping, has had nightmares, and has awakened at night afraid that some other person was in the room threatening to harm her. . . . When viewed properly, plaintiff\u2019s evidence indicates that she has suffered mental trauma or emotional disturbance.\nId.\nIn the case sub judice the evidence indicates that there was physical impact and physical and mental injury suffered by plaintiff as a result of the negligent acts of the defendant. On voir dire, Dr. Rose testified that plaintiff suffered from anxiety neurosis, extreme nervousness, fear, apprehension, excessive perspiration, dizziness, insomnia, irritability, and loss of appetite.\nDr. Rose further testified:\nIt was my diagnosis that Mr. Craven had an anxiety neurosis, that is, he had a state of anxiety, nervousness or tension, which was disabling and which prevented him from functioning. . . . He also had obsessive feelings about death .... He had some memory deficit. He had a poor short-term recall. It didn\u2019t affect long-term memory, but when the level of anxiety goes up, ideas and thoughts that go into the person\u2019s head don\u2019t get lodged well or they are lost or they are not heard. He complained of nervous headaches. He had physical symptoms. He complained initially of heart pounding and feeling physically nervous, wired and agitated.\nIn response to an \u201copinion question\u201d Dr. Rose stated: \u201cIt is my belief that the accident triggered the underlying anxiety neurosis that had been present but was under control at that time.\u201d Additionally, in response to a subsequent hypothetical question, Dr. Rose testified that it was his opinion that the accident on 22 July 1979 in which the plaintiff was involved caused the plaintiff\u2019s anxiety neurosis.\nIn addition to the physical impact of the cars and the physical injury to plaintiff\u2019s eye, we believe some of plaintiff\u2019s other injuries satisfy the requirement of physical injury. Dr. Rose himself testified: \u201cAnxiety Neurosis is in a sense a physical problem because anxiety, nervousness is mediated through the nerves and through systems of the body, endocrine system.\u201d And, according to Prosser, the temporary emotion of fright is \u201cto be distinguished [from] shock to the nervous system, which commonly is regarded as injury to the body rather than to the mind, and hence satisfies the requirement of physical injury.\u201d W. Prosser, Law of Torts, \u00a7 54 at 329, n. 43 (4th ed. 1971).\nAs this Court recently stated in Wesley:\nWhen under the test of physical injury, plaintiff has shown such a wrecking of her nervous system as to come within the rule so eloquently stated and explained in Kimberly v. Howland, 143 N.C. 398, 403-04, 55 S.E. 778, 780 (1906):\n\u201cThe nerves are as much a part of the physical system as the limbs, and in some persons are very delicately adjusted, and when \u2018out of tune\u2019 cause excrutiating agony. We think the general principles of the law of torts support a right of action for physical injuries resulting from negligence, whether wilful or otherwise, none the less strongly because the physical injury consists of a wrecked nervous system instead of lacerated limbs.\u201d\n47 N.C. App. at 691, 268 S.E. 2d at 862-63. Professor Byrd\u2019s description of what constitutes a physical injury in North Carolina aptly summarizes our position:\nImpairment of health, loss of bodily power, or sickness, without proof of any specific injury, has been held to constitute a physical injury. Similarly, proof that plaintiff became \u201calmost helpless; that she could not go about her daily duties, and could not keep on her feet to attend to her children; that it has affected her ever since, and has caused her female trouble out of its regular course\u201d has been held a sufficient showing of physical injury. A jury instruction permitting recovery if plaintiff was \u201cput in fear and frightened to such an extent that she suffered physical pain, suffered in body and mind, and was made sick\u201d was held proper. In many of these cases, expert medical testimony was not introduced to establish that the emotional distress could or did operate to cause physical consequences, and proof of the physical injury was through plaintiffs own testimony, much of which seems to have been couched in general language such as \u201csickness.\u201d\nByrd, Recovery for Mental Anguish, 58 N.C. L. Rev. 435, 458 (1980).\nDr. Rose testified that the automobile collision was very traumatic and frightening for the plaintiff; that prior to the accident, the plaintiff was able to function and after the accident he was unable to do so; and that plaintiff was unable to continue his job at Unique Furniture after the accident, although he had worked there for a year and a half before the accident. It was error for the trial court to exclude the testimony of Dr. Rose at the conclusion of the voir dire hearing, thus preventing the jury from hearing testimony of the physical, mental and emotional injuries suffered by plaintiff as a result of the automobile accident of 22 July 1979.\nII\nHaving concluded that the trial court\u2019s decision barring Dr. Rose from testifying in the presence of the jury was contrary to the applicable law, it is not necessary to discuss in detail plaintiff s separate assignment of error relating specifically to the exclusion of Dr. Rose\u2019s medical opinions.\nHaving properly qualified Dr. Rose as an expert in the field of psychiatry, it was error for the trial court to sustain defendant\u2019s objections to plaintiff\u2019s cause and effect questions which sought Dr. Rose\u2019s medical opinions.\nWe also elect to address summarily plaintiff\u2019s fifth, and closely related, assignment of error concerning the exclusion of his medical bills from evidence. We hold that the trial court erred in not admitting into evidence plaintiff\u2019s medical bills from Dr. Rose, since the medical attention given plaintiff was reasonably necessary for the proper treatment of plaintiff\u2019s injuries. See Ward v. Wentz, 20 N.C. App. 229, 201 S.E. 2d 194 (1973).\nIII\nPlaintiff also argues that the trial court erred in excluding his testimony and the testimony of his father concerning plaintiffs physical and mental health before and after the accident. We agree with plaintiff. The state of a person\u2019s health, a person\u2019s ability to work or engage in activities, a person\u2019s physical appearance and sleeping habits, among other things, are proper subjects of opinion testimony by non-experts. Both the plaintiff and his father were able to describe the state of plaintiffs health after the accident and to compare it with that existing before the accident. The exclusion of their testimony was error. See Ford v. Blythe Brothers Co., 242 N.C. 347, 357, 87 S.E. 2d 879, 885 (1955); Wesley v. Greyhound Lines, Inc.; Kenney v. Kenney, 15 N.C. App. 665, 669, 190 S.E. 2d 650, 653 (1972); 1 Stansbury, N.C. Evidence 2d, \u00a7 129 (Brandis Rev. 1973).\nIV\nPlaintiff next assigns as error the trial court\u2019s failure to submit the issue of punitive damages to the jury. Plaintiff contends that defendant\u2019s failure to stop and render assistance after being involved in an accident, in conjunction with other circumstances, warranted the submission of the issue of punitive damages to the jury. We disagree.\nAlthough our courts have long held that punitive damages are recoverable in an automobile collision on allegations and proof that the injury complained of resulted from wanton negligence, Hinson v. Dawson, 244 N.C. 23, 28, 92 S.E. 2d 393, 396-97 (1956) we have found no North Carolina case concerning the award of punitive damages in a hit and run situation. Indeed, only a few jurisdictions have considered this matter. Annot. 156 A.L.R. 1115 (1945).\nIn Pelican Trucking Co. v. Rossetti, 251 Miss. 37, 167 So. 2d 924 (1964), the Mississippi Supreme Court held that the trial court erred in submitting an issue of punitive damages when the only evidence relating to that issue was the failure of the defendant-driver to stop after defendant\u2019s truck had collided with plaintiffs car, and stated;\nThere are very few cases on this question. The rule seems to be that failure to stop after the accident is not of itself evidence sufficient to support punitive damages, but along with all the accompanying facts and circumstances of the accident may be used to show that that portion of defendant\u2019s conduct which constituted the proximate cause of the accident was willful and wanton or grossly negligent [citations omitted]. . . .\nThe question is: To what extent is failure to stop after an accident acceptable evidence to support exemplary damages? The inquiry must originate with the quality of the act causing the damages. Where there are other circumstances immediately prior to and at the time of the collision which would tend to show gross negligence supporting exemplary damages in the act causing the damages, the actor\u2019s conduct occurring immediately after the happening of the accident may be relevant.\n251 Miss, at 42-43, 167 So. 2d at 926.\nIn the case sub judice it is of no concern that the Complaint alleged wanton conduct or gross negligence. The issue before us is whether plaintiffs proof was sufficient to warrant submission of the punitive damages issue to the jury. We think not. Moreover, \u201cwe are not disposed to expand [the bases for the recovery of punitive damages] beyond the limits established by authoritative decisions of [our appellate courts].\u201d 244 N.C. at 27, 92 S.E. 2d at 396.\nWe are clearly bound by this Court\u2019s holding in Jarvis v. Saunders, 34 N.C. App. 283, 237 S.E. 2d 865 (1977). In Jarvis, we set out the evidence in the opinion as follows:\nThe collision which gave rise to the suit herein occurred on the afternoon of 15 November 1973. Plaintiff was riding his motorcycle on the back stretch of the larger track proceeding at a speed of 35 to 40 m.p.h. in a clockwise direction. Defendant, who had been riding in a clockwise direction stopped, turned around, and resumed travelling in the opposite direction accelerating to a speed of 35 to 40 m.p.h. When plaintiff observed the defendant headed toward him, he drove his motorcycle onto the grass shoulder on the right side of the trail, maintaining his speed. Though the trail was narrow there was sufficient room for the two motorcycles to clear each other. However, when they were within approximately 3 to 5 yards of each other, plaintiff saw defendant looking directly at him and \u201csaw Greg\u2019s arm turn and he turned right toward me.\u201d The front wheel of defendant\u2019s motorcycle then collided with the front fender of plaintiff\u2019s motorcycle at a 45 degree angle causing serious injuries to plaintiff.\n34 N.C. App. at 285, 237 S.E. 2d at 866. After discussing the requirements of willful, wanton or gross negligence, this Court stated:\nWhile the evidence here is sufficient to support the jury\u2019s finding of negligence on the part of the minor defendant and contributory negligence on the part of the plaintiff, we are of the opinion that it is not sufficient to raise an inference of willful, wanton or intentional conduct, or gross negligence on the part of the minor defendant.\n34 N.C. App. at 286, 237 S.E. 2d at 867. See also Roberts v. Davis, 15 N.C. App. 284, 189 S.E. 2d 767 (1972). Our Supreme Court seems to have tipped its hand, too. In Heath v. Kirkman, 240 N.C. 303, 82 S.E. 2d 104 (1954), in which the injured plaintiff sought punitive damages because the allegedly negligent defendant-driver refused to obtain medical treatment for the plaintiff following the accident, the Supreme Court commented on the plaintiffs punitive damage claim in dicta:\nThe appeal does not present the question as to the sufficiency of the allegations to warrant submission of an issue of punitive damages. Suffice it to say, decision of this question depends upon the circumstances giving rise to the alleged cause of action and not upon what occurred subsequent to the infliction of the personal injury.\nId. at 310, 82 S.E. 2d at 109.\nIn the case sub judice, there is evidence that the collision occurred on a two-lane paved road in a straight section between two curves; that neither vehicle was travelling at a speed exceeding 40 m.p.h.; and that defendant\u2019s car crossed the center line and \u201cside-swiped\u201d the rear of plaintiff\u2019s truck. Considering this and all the evidence, we are convinced that, although the evidence could support the jury\u2019s verdict that defendant was negligent, it does not allow a reasonable inference of willful or wanton negligence on defendant\u2019s part, requiring the submission of an issue of punitive damages to the jury. Consequently, defendant\u2019s failure to remain at the scene following the collision is not, in and of itself, sufficient to warrant the submission of a punitive damages issue to the jury.\nIn summary, although rejecting plaintiff\u2019s argument that the punitive damages issue should have been submitted to the jury, we hold that the trial court erred (1) in excluding testimony and medical bills from plaintiff\u2019s psychiatrist, and (2) in excluding testimony about plaintiffs physical and mental condition before and after the accident.\nDEFENDANT\u2019S APPEAL\nDefendant first argues that the trial court should not have awarded plaintiff attorney\u2019s fees under G.S. 6-21.1 since that statute was intended to encourage plaintiffs with small claims to bring their actions despite the high cost of counsel. According to defendant, plaintiff did not regard his claim as small; the initial claim was for $51,000.00, and the last offer of settlement was for $14,999.00.\nTo defendant\u2019s first argument, plaintiff makes three responses: (1) G.S. 6-21.1 makes specific reference to the amount recovered, not the amount prayed for in the complaint; (2) the size of plaintiff\u2019s claim was reduced drastically when the trial court refused to admit testimony concerning plaintiff\u2019s psychological damages; and (3) the trial court did not abuse its discretion.\nIt is not necessary to address the specific arguments and counterarguments on this issue. Under G.S. 6-21.1, attorney\u2019s fees are \u201ctaxed as a part of the court costs.\u201d Because we are awarding plaintiff a new trial, no \u201cjudgment for damages\u201d has been obtained, and, consequently, no attorney\u2019s fees shall be awarded as part of the cost.\nDefendant next argues that \u201cthe trial court erred in taxing an expert witness fee [of $200] for Dr. David Branch against the defendant in that Dr. Branch\u2019s testimony was not pursuant to a subpoena.\u201d Simply put, it is error for a trial court to tax an expert witness fee as part of the costs when the expert has not testified pursuant to a subpoena. State v. Johnson, 282 N.C. 1, 26-28, 191 S.E. 2d 641, 659 (1972); Groves and Sons v. State, 50 N.C. App. 1, 69, 273 S.E. 2d 465, 501 (1980), disc. rev. denied 302 N.C. 396, 279 S.E. 2d 353 (1981). A more elaborate statement is contained in Siedlecki v. Powell, 36 N.C. App. 690, 698, 245 S.E. 2d 417, 422 (1978), in which this Court stated:\nIn their final argument, defendants assign error to the trial court\u2019s order setting an expert witness fee for plaintiffs witness, Dr. Keller, to be taxed as part of the costs in the action. This assignment of error has merit.\nG.S. 7A-314(a) and (d) allow the court to set an expert witness fee. As interpreted by our Supreme Court in State v. Johnson, 282 N.C. 1, 191 S.E. 2d 641 (1972), the statute requires that a witness must be under subpoena before he or she is entitled to compensation. Under this interpretation, the trial court had no authority to order the fee on behalf of Dr. Keller, who admittedly did not testify in obedience to a subpoena. Plaintiff\u2019s argument that the provisions of G.S. 7A-314(a), allowing fees for a witness \u201cunder subpoena, bound over, or recognized\u201d should be read in the alternative, is persuasive; however, we are bound by the decision of the Supreme Court. We hold, therefore, that the order allowing the expert witness fee must be reversed.\nIn summary, neither the attorney fees nor the expert witness fee should have been awarded as part of the cost in this action.\nOn defendant\u2019s appeal, we\nVacate the award of attorney\u2019s fees and expert witness fees.\nOn plaintiff\u2019s cross appeal, we\nReverse and remand for a new trial.\nJudge Hedrick and Judge Martin (Harry C.) concur.\n. Although the plaintiff had initially experienced anxiety neurosis after finding a dead man in the bathroom at Unique Furniture in March of 1979, he had gotten that condition under control, and had continued working. The automobile collision on July 22, 1979, caused the resurgence of the anxiety neurosis.\n. G.S. 6-21.1 states: In any personal injury or property* damage suit, or suit against an insurance company under a policy issued by the defendant insurance company and in which the insured or beneficiary is the plaintiff, upon a finding by the court that there was an unwarranted refusal by the defendant insurance company to pay the claim which constitutes the basis of such suit, instituted in a court of record, where the judgment for recovery of damages is five thousand dollars ($5,000) or less, the presiding judge may, in his discretion, allow a reasonable attorney fee to the duly licensed attorney representing the litigant obtaining a judgment for damages in said suit, said attorney\u2019s fee to be taxed as a part of the court costs.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Kennedy, Kennedy, Kennedy & Kennedy, by Harvey L. Kennedy and Harold L. Kennedy, III for plaintiff appellant and plaintiff appellee.", "Womble, Carlyle, Sandridge & Rice, by Keith W. Vaughn and Keith A. Clinard for defendant appellant and defendant appellee." ], "corrections": "", "head_matter": "REGINALD CLETUS CRAVEN, JR. v. TIMOTHY ALLEN CHAMBERS\nNo. 8121SC527\n(Filed 2 March 1982)\n1. Damages \u00a7 3.4; Evidence \u00a7 48\u2014 psychiatrist \u2014 testimony concerning physical and psychological injuries received in automobile accident \u2014 exclusion improper\nIn a personal injury action, the trial court erred in excluding testimony by plaintiffs psychiatrist of the physical, mental and emotional injuries suffered by plaintiff as a result of an automobile accident. In addition to the physical impact of the cars and a physical injury to plaintiffs eye, some of plaintiffs other injuries satisfied the requirement of physical injury and the testimony that plaintiff suffered from anxiety neurosis, extreme nervousness, fear, apprehension, excessive perspiration, dizziness, insomnia, irritability, and loss of appetite, as well as the psychiatrist\u2019s medical opinions, should have been admitted.\n2. Damages \u00a7 3.4\u2014 testimony of medical bills from psychiatrist \u2014 exclusion improper\nThe trial court erred in not admitting into evidence plaintiffs medical bills from a psychiatrist since the medical attention given to plaintiff was reasonably necessary for the proper treatment of plaintiffs injuries.\n3. Evidence \u00a7 44\u2014 testimony concerning physical and mental health before and after accident \u2014 exclusion improper\nIt was error for the trial court to exclude testimony by plaintiff and his father concerning plaintiffs physical and mental health before and after an automobile accident.\n4. Damages \u00a7 11.2.\u2014 punitive damages \u2014improper in hit and run accident\nIn an action concerning an automobile accident, evidence that a collision occurred on a two-lane paved road in a straight section between two curves; that neither vehicle was travelling at a speed exceeding 40 m.p.h.; that the defendant\u2019s car crossed the center line and \u201cside-swiped\u201d the rear of plaintiffs truck did not allow a reasonable inference of willful or wanton negligence on defendant\u2019s part, requiring the submission of an issue of punitive damages to the jury. Consequently, defendant\u2019s failure to remain at the scene following the collision was not, in and of itself, sufficient to warrant the submission of a punitive damages issue to the jury.\n5. Costs \u00a7 4.1\u2014 expert witness fees \u2014 necessity of subpoena\nIt was error for the trial court to tax an expert witness fee as part of the costs when the expert had not testified pursuant to a subpoena.\nAPPEAL by plaintiff and defendant from Lupton, Judge. Judgment entered 16 December 1980 in Superior Court, FORSYTH County. Heard in the Court of Appeals 14 January 1982.\nPlaintiff alleges that as a result of an automobile collision with defendant\u2019s car, he suffered physical and emotional injuries, including a corneal abrasion in one eye, severe headaches, nervousness, insomnia, and anxiety neurosis. Following a jury verdict of $400 for plaintiff, the trial court ordered defendant to pay, as part of the cost, plaintiffs attorney\u2019s fees and the expert witness fees. The defendant appealed and plaintiff cross-appealed.\nKennedy, Kennedy, Kennedy & Kennedy, by Harvey L. Kennedy and Harold L. Kennedy, III for plaintiff appellant and plaintiff appellee.\nWomble, Carlyle, Sandridge & Rice, by Keith W. Vaughn and Keith A. Clinard for defendant appellant and defendant appellee." }, "file_name": "0151-01", "first_page_order": 183, "last_page_order": 194 }