The opinion
Judge WHICHARD
concurring.
In 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 granted, 295 N.C. 466 , 246 S.E. 2d 9 (1978) (petition withdrawn on motion of defendant).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.
I 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.
Judge (now Justice) Britt recognized this in Howard by stating the issue as “whether the trial court erred in setting aside the verdict” and the holding as “that the court erred.” 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.