Lamm v. Lorbacher

71 S.E.2d 49 (1952)

235 N.C. 728

LAMM v. LORBACHER et al.

No. 753.

Supreme Court of North Carolina.

June 11, 1952.

*50 Brooks, McLendon, Brim & Holderness, Greensboro, and Barnie P. Jones, Burlington, for plaintiff, appellant.

Cooper, Sanders & Holt, Burlington, and Jordan & Wright, Greensboro, for defendants, appellees.

DEVIN, Chief Justice.

The plaintiff appeals from the judgment below on the ground that the amount of damages awarded for the wrongful death of his intestate was inadequate. He assigns as error the court's charge to the jury in *51 stating the rule for the measure of damages in this case.

In 1846 the common-law rule that right of action for personal injury did not survive the death of the injured person was abrogated in England by statute (9 and 10 Vict.C. 93), known as Lord Campbell's Act, which permitted recovery in an action by the administrator when the death of the decedent was due to the unlawful or negligent act of another. In North Carolina this change in the common-law rule was adopted by statute in 1869, now codified as G.S. §§ 28-173, and 28-174, and right of action for wrongful death was conferred upon the personal representative of the decedent, with the further provision that "The plaintiff in such action may recover such damages as are a fair and just compensation for the pecuniary injury resulting from such death." So that the action for wrongful death exists only by virtue of this statute and the statutory provision must govern not only the right of action but also the rule for determining the basis and extent of recovery of damages therefor.

In interpreting the language of the statute the rule has been well stated by Chief Justice Stacy in a recent opinion in Journigan v. Little River Ice Co., 233 N.C. 180, 184, 63 S.E.2d 183, 186, as follows:

"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. R. Co., 125 N.C. 304, 34 S.E. 495; Burton v. Wilmington & W. R. R. Co., 82 N.C. 504, 505." See also Hanks v. Norfolk & Western R. R., 230 N.C. 179, 52 S.E.2d 717; Rea v. Simowitz, 226 N.C. 379, 38 S.E.2d 194; Queen City Coach Co. v. Lee, 218 N.C. 320, 328, 11 S.E.2d 341.

In the excerpt from the charge to which plaintiff noted exception the trial judge seems to have instructed the jury in substantial accord with the decisions of this Court, and particularly to have followed the language in Queen City Coach Co. v. Lee, supra, and Carpenter v. Asheville Power & Light Co., supra. The use of the word "family" in the connection in which it was used may be understood as meaning estate. Hanks v. Norfolk & Western R. R., supra. It affords the plaintiff no ground of complaint.

The plaintiff, however, urges upon us that in view of the evidence that the plaintiff's intestate, aged 33 years, was an educated woman, a housewife and mother of two children, and had several years before been employed at $165 per month, the court's instruction to the jury on the issue of damages should have included "a statement as to the value of her labor" as a housewife, and relies upon what was said in Bradley v. Ohio River & C. R. R. Co., 122 N.C. 972, 30 S.E. 8. In that case in an action for wrongful death of a wife and mother a new trial was awarded for the trial court's error in charging the jury they might consider the number of decedent's children in so far as that helped them to put a pecuniary value on the intellectual and moral training that she might be able to give them. This was held for error, but in the opinion by Chief Justice *52 Faircloth it was said in interpreting the phrase pecuniary injury, "It will be observed, that, under our statute, the pecuniary injury is the measure. That means the value of the labor or the amount of the earnings of the deceased if he had lived." In a concurring opinion in that case Justice Douglas observed moral training of children was beyond the reach of human calculations and that "We have no scales by which to measure the value of a pure christian mother, and the moral influence she may have upon her children." We do not understand that the Court in the Bradley case intended to extend the rule for the admeasurement of damages in such case to include as an element of damage labors of the decedent which were gratuitous and for which she received no compensation. The view that the value of decedent's labor in the home as a housewife should be considered by the jury in determining the amount of damages recoverable is supported by reputable authority in some other jurisdictions, 74 A.L.R. 95, note, but under the North Carolina statute as interpreted by the decisions of this Court compensation for wrongful death is limited to "the pecuniary injury resulting from such death." This phrase has remained unchanged since the statute was enacted in 1869. Hence this Court has uniformly held, in view of this restrictive language, that the consideration of the jury should be confined to determining the amount of money the decedent would have earned during the period the jury find he would otherwise have lived, and, then, after deducting the probable cost of his ordinary living expenses, to ascertaining the present worth of the accumulation of such net earnings as the pecuniary value of the life of the decedent to his estate. This rule, though sometimes difficult of application, applies to all alike. Rea v. Simowitz, 226 N.C. 379, 38 S.E.2d 194. The right of action is for the personal representative of the deceased only. "The right of action for wrongful death, being conferred by statute at death, never belonged to the deceased, and the recovery is not assets in the usual acceptation of the term." Broadnax v. Broadnax, 160 N.C. 432, 76 S.E. 216, 217, 42 L.R.A.,N.S., 725; Hood v. American Telephone Telegraph Co., 162 N.C. 92, 77 S.E. 1094; 28 N.C. Law Review 106.

The jurors to whom was committed the determination of the facts from the evidence in this case have allowed compensation for the wrongful death of plaintiff's intestate, but have fixed the amount in what plaintiff contends is an insufficient sum. The plaintiff availed himself of the only relief from an inadequate verdict by motion addressed to the trial judge to exercise his power to set the verdict aside. This the judge in his discretion declined to do. His refusal would not be reviewed here except upon showing of manifest abuse of discretion. The verdict of which the plaintiff complains was rendered by a presumably intelligent jury who had heard all the evidence, and the motion to set the verdict aside was denied by the trial judge who also had heard all the evidence. We do not find there was such a manifest abuse of discretion on the part of the judge as would warrant this Court in reversing his ruling. Johnston v. Johnston, 213 N.C. 255, 195 S.E. 807; McClamroch v. Colonial Ice Co., 217 N.C. 106, 6 S.E.2d 850.

"It is the rule in this jurisdiction that in the absence of some imputed error of law or legal inference arising in connection therewith the direct supervision of verdicts is a matter resting in the sound discretion of the trial court, and is not reviewable on appeal." Johnston v. Johnston, supra [213 N.C. 255, 195 S.E. 809]. "It is well settled in this State that the exercise of a discretionary power by the trial Court is not reviewable upon appeal, unless there has been a palpable abuse of such discretion." Hughes v. Oliver, 228 N.C. 680, 685, 47 S.E.2d 6, 10.

Plaintiff's motion for new trial for newly discovered evidence is based upon proffered testimony applicable to the first issue only. Upon that issue the verdict was in favor of the plaintiff. Hence we are unable to say as a matter of law that the jury's verdict on the third issue was affected by lack of the additional testimony *53 now presented. The proposed new evidence tends to show the falsity of the testimony of defendants' witnesses to the effect that plaintiff's automobile skidded on the occasion of the collision in which plaintiff's intestate was killed, and to impeach one of defendants' witnesses. Without the new evidence the jury answered the first two issues in favor of the plaintiff. The plaintiff's motion based upon the evidence offered does not meet the requirements set out in Johnson v. Seaboard Air Line R. R. Co., 163 N.C. 431, 79 S.E. 690. The motion for new trial for newly discovered evidence is denied.

Upon consideration of the case and all the questions involved in plaintiff's appeal, we conclude that in the trial there was

No error.