Journigan v. Little River Ice Co.

Annotate this Case

63 S.E.2d 183 (1951)

233 N.C. 180


No. 450.

Supreme Court of North Carolina.

February 2, 1951.

*185 Bickett & Banks, Raleigh, for plaintiff, appellant, and plaintiffs, appellees.

A. J. Fletcher and F. T. Dupree, Jr., Raleigh, for defendant, appellant, appellee.

STACY, Chief Justice.

Three separate questions are presented for decision in the appeals herein.

First. Plaintiff's Appeal in No. C-6256 Alice Journigan Case:

In the face of the admission that Alice Journigan has not in fact qualified as administratrix of Genie M. Journigan's estate and that no personal representative has ever been appointed to administer thereon, it is difficult to perceive how Alice Journigan finds any ground upon which to stand as an appellant. She denominates herself on appeal as "The plaintiff", but there is no such plaintiff as "Alice Journigan, administratrix of Genie M. Journigan, deceased", and she may not prosecute the action in her individual capacity. Howell v. Board of Com'rs, 121 N.C. 362, 28 S.E. 362; Hood v. American Tel. Co., 162 N.C. 70, 77 S.E. 1096. "Under the statute, the only person who can sue is the personal representative of the deceased". Howell v. Com'rs, supra; Hall v. Southern R. R. Co., 149 N.C. 108, 62 S.E. 899; Brown v. Southern R. R. Co., 202 N.C. 256, 162 S.E. 613; 74 A.L.R. 1273; Whitehead & Anderson, Inc., v. Branch, 220 N.C. 507, 17 S.E.2d 637; McCoy v. Atlantic Coast Line R. R. Co., 229 N.C. 57, 47 S.E.2d 532.

Indeed, where one sues as administrator, upon denial of his right to recover, he may be required to produce on the trial his letters of administration as evidence of his title. Kesler v. Roseman, 44 N.C. 389.

If and when Alice Journigan does in fact qualify as administratrix of her husband's estate, will be time enough to hear her as such representative. Harrison v. Carter, 226 N.C. 36, 36 S.E.2d 700, 164 A.L.R. 697; Snipes v. Estates Administration, Inc., 223 N.C. 777, 28 S.E.2d 495; Reynolds v. Lloyd Cotton Mills, 177 N.C. 412, 99 S.E. 240, 5 A.L.R. 284.

On the record as it now appears, there was no error in dismissing her action.

Second. Defendant's Appeal in No. C-6254Horace Journigan's Case.

The principal question for decision in this case is whether the plaintiff's evidence taken in its most favorable light, survives the demurrer, carries the case to the jury and suffices to sustain the judgment for plaintiff.

The plaintiff's evidence is in sharp conflict with that of the defendant in respect of the speed of the two vehicles, especially as it relates to the speed of the Journigan car. The plaintiff's witnesses place the speed of the truck at 30 miles an hour and that of the car at 30 or 35 miles an hour. Defendant's witnesses, on the other hand, testified that the truck was traveling approximately *186 15 or 20 miles an hour, "not over 25 to 30" miles an hour before the collision, and had stopped or was not going over five miles an hour at the moment of impact, and that the Journigan car was running between 70 and 90 miles an hour, which caused it to skid on the slippery road when the driver applied his brakes.

On demurrer to the evidence or motion for judgment as in case of nonsuit we take the plaintiff's evidence as true and reject the defendant's evidence in conflict therewith. Brafford v. Cook, 232 N.C. 699, 62 S.E.2d 327.

The fact the impact occurred slightly over the center line and on the western side, which was to the plaintiff's left, is not controlling or conclusive on the issue of contributory negligence. It is the position of plaintiff that the truck looming up over the hill on its left side of the road and speeding up in order to get around the parked cars before returning to its right side of the road, forced the driver of the Journigan car to apply his brakes and thus produced the collision.

The trial court properly overruled the demurrer to the evidence and submitted the case to the jury. Williams v. Kirkman, 232 N.C. 609, 61 S.E.2d 706; Howard v. Bell, 232 N.C. 611, 62 S.E.2d 323.

We find no error in No. C-6254Horace Journigan's Case.

Third. Defendant's Appeal in No. C-6255 Doris May Journigan's Case:

This case stands on a parity with No. C-6254Horace Journigan's Case, so far as the question of nonsuit is concerned. What has just been said in that case applies equally here.

There is a bit of evidence in this case, however, which requires some additional and separate consideration.

Over objection, the plaintiff was allowed to testify that her husband, Milton Journigan, had just come out of the military service and the length of time he had been in the service; that they had a child, two years old, at the time of his death; that she lost the homeplace to the mortgage people after his death, and that she paid his hospital and doctors' bills and burial expenses amounting to $655.00. Motion to strike; overruled; exception.

Under the pertinent decisions, it would seem that this evidence was incompetent on the measure of damages. McCoy v. Atlantic Coast Line R. R. Co., 229 N.C. 57, 47 S.E.2d 532.

It is provided by G.S. § 28-174 that in an action for wrongful death the plaintiff may recover such damages "as are a fair and just compensation for the pecuniary injury resulting from such death". It is further provided in G.S. § 28-173 that the amount recovered in such action is not liable to be applied as assets of the estate of the deceased, except as to burial expenses, "but shall be disposed of" according to the statute of distributions of personal property in case of intestacy. Hanks v. Norfolk & Western R. R., 230 N.C. 179, 52 S.E.2d 717.

The measure of damages in actions for wrongful death is the present worth of the net pecuniary value of the life of the deceased to be ascertained by deducting the probable cost of his own living and usual or ordinary expenses from his probable gross income which might be expected to be derived from his own exertions during his life expectancy. Carpenter v. Asheville Power & Light Co., 191 N.C. 130, 131 S.E. 400; Gurley v. Southern Power Co., 172 N.C. 690, 90 S.E. 943. In arriving at the net pecuniary value of the life of the deceased, the jury is at liberty to take into consideration the age, health and expectancy of life of the deceased, his earning capacity, his habits, his ability and skill, the business in which he was employed and the means he had for earning money, the end of it all being, as expressed in Kesler v. Smith, 66 N.C. 154, to enable the jury fairly to arrive at the net income which the deceased might reasonably be expected to earn from his own exertions, had his death not ensued, and thus assess the pecuniary worth of the deceased to his family, had his life not been cut short by the wrongful act of the defendant. Burns v. Ashboro & M. R. Co., 125 N.C. 304, 34 S.E. 495; Burton v. Wilmington & W. R. R. Co., 82 N.C. 504, 505.

*187 A new trial will be ordered in this case, limited, however, to the issues of damages.

The results, then, are:

In No. C-6256Alice Journigan's Case, Affirmed.

In No. C-6254Horace Journigan's Case, No Error.

In No. C-6255Doris May Journigan's Case, Partial New Trial.