Armentrout v. Hughes, 521

Docket NºNo. 521
Citation101 S.E.2d 793, 247 N.C. 631, 69 A.L.R.2d 620
Case DateJanuary 31, 1958
CourtUnited States State Supreme Court of North Carolina

Miller & Beck, Asheboro, for plaintiff appellant.

Moser & Moser, Asheboro, for defendant appellee.

RODMAN, Justice.

The assignments of error raise questions as to the competency of evidence, the accuracy and propriety of the charge, and the adjudication that plaintiff take nothing when, as a matter of law, he was, on the admissions made in the pleadings, entitled to at least nominal damages which would entitle him to costs. G.S. § 6-1.

Basic to a decision of each assignment of error is the correct interpretation of our statute permitting recovery of damages for the wrongful death of another.

English common law, adopted as the law of our State, gave no right of action for damages for tortious killing of a human being. Hinnant v. Tidewater Power Co., 189 N.C. 120, 126 S.E. 307, 309, 37 A.L.R. 889. England, in 1846, authorized recoveries in such cases by the statute known as 'Lord Campbell's Act.'

Our Legislature, eight years later, enacted a statute modeled on the English statute, c. 39, Laws 1854, R.C. c. 1, secs. 9 and 10. The statute then enacted is now, without material change, incorporated in our laws as G.S. §§ 28-173, 28-174. The statute by express language limits recovery to 'such damages as are a fair and just compensation for the pecuniary injury resulting from such death.' It does not provide for the assessment of punitive damages, nor the allowance of nominal damages in the absence of pecuniary loss.

The English statute was interpreted by the Courts of Exchequer in Duckworth v. Johnson, decided June 4, 1859, 4 H. & N. 653, 157 Eng.Rep. 997. The case turned on the provision of the statute dealing with the amount of damages which could be recovered. Pollock, C. B., said: 'My opinion is that, looking at the act of parliament, if there was no damage the action is not maintainable. It appears to me that it was intended by the Act to give compensation for damage sustained, and not to enable persons to sue in respect of some imaginary damage, and so punish those who are guilty of negligence by making them pay costs.' Watson, B., said: 'I am also of opinion that the rule ought to be discharged. On one part of the case I have no doubt, namely, that no action can be maintained under the 9 & 10 Vict. c. 93, unless the plaintiff proves actual damage. I am clearly of opinion that negligence alone, without damage, does not create a cause of action.'

This interpretation has been adhered to by the English courts. Du Parcq, L. J., in 1941, said: 'If they bring an action and prove no loss, actual or prospective, the defendant is entitled to the verdict: see Duckworth v. Johnson.' Yelland v. Powell Duffryn Associated Collieries, Ltd., 1 K.B. 519.

Our statute has from its passage been interpreted to accord with the interpretation given by the English courts to Lord Campbell's Act.

In 1867, Reade, J., said in Collier v. Arrington's Ex'rs, 61 N.C. 356: 'The reason why, at common law, an action against a trespasser died with the person was, that it was not so much an action for pecuniary loss, as it was for a solatium for the wounded feelings of the plaintiff, and for the punishment of the defendant. But the plaintiff could not be solaced, nor the defendant punished after death. But our statute, which gives an action to the representative of a deceased party, who was injured or slain by a trespasser, confines the recover to the amount of pecuniary injury. It does not contemplate solatium for the plaintiff, nor punishment for the defendant. It is therefore in the nature of pecuniary demand, the only question being; how much has the plaintiff lost by the death of the person injured?'

Speaking in 1872, Justice Reade said, in Kesler v. Smith, 66 N.C. 154: 'The English statute (9-10 Vict. ch. 93) is substantially the same as ours. It is not precisely as definite as ours as to the rule of damages, inasmuch as our statute specifies 'pecuniary injury,' whereas the English statute also makes it the duty of the jury to apportion the damages among the beneficiaries, which ours does not.

'Although the English statute omits pecuniary, yet the rule of damages which the courts have laid down is 'the reasonable expectation of pecuniary advantage from the continuance of the life of the deceased.' We have carefully examined the English cases, and although the rule is not laid down in all of them in precisely these words, yet in substance it is; and the rule may now be said to be settled as above.'

Devin, C. J., speaking in Lamm v. Lorbacher, 235 N.C. 728, 71 S.E.2d 49, 51, said: 'So that the action for wrongful death exists only by virtue of this statute and the statutory provisions must govern not only the right of action but also the rule for determining the basis and extent of recovery of damages therefor.' See also Russell v. Windsor Steamboat Co., 126 N.C. 961, 36 S.E. 191; Gray v. Little, 127 N.C. 304, 37 S.E. 270; Carter v. North Carolina R. Co., 139 N.C. 499, 52 S.E. 642; Poe v. Raleigh & A. Air Line R. Co., 141 N.C. 525, 54 S.E. 406; Speight v. Seaboard Air Line Ry., 161 N.C. 80, 76 S.E. 684; Journigan v. Little River Ice Co., 233 N.C. 180, 63 S.E.2d 183; Caudle v. Southern Ry. Co., 242 N.C. 466, 88 S.E.2d 138; Tiffany's Death by Wrongful Act (2nd ed.) § 180.

We are aware of the divergent views held by courts of other states: some accord with our view and permit recovery only for pecuniary loss; others treat the act as vindicating a right and, by way of punishment, require the assessment of nominal damages. We adhere to the interpretation consistently accorded our statute.

Since plaintiff is not, as a matter of law, entitled to nominal damages, it follows that his exception and assignment of error to the judgment itself is without merit.

The court charged the jury: 'If the plaintiff is entitled to recover at all, this is the formula and this is the standard by which you would measure any damages which the plaintiff is entitled to recover, and it would be your duty to award the plaintiff such amount and only such amount as the plaintiff has satisfied you from the evidence and by the greater weight thereof that he is entitled to recover according to this measurement * * *'

The court follows the quoted portion of his charge by a statement of the rule to which no exception is taken.

Plaintiff excepted to the portion of the charge as quoted. The exception is without merit. The accuracy of the rule by which to measure is not challenged. The portion of the charge quoted is not an expression of opinion prohibited by statute. It is a correct statement of the law imposing on the jury the duty of determining from the evidence the pecuniary loss, if any, sustained.

The exceptions to the exclusion of evidence are likewise without merit. A description and interpretation of pictures of plaintiff's intestate, taken at a funeral home after she had been murdered, could not possibly have helped the jury in finding an answer to the question submitted to them but could have easily persuaded the jury to award punitive damages. Nor does an inventory of the estate, which merely shows that deceased owned a farm, had household effects, and money deposited with a building and loan association, without explanation of when or how she acquired these assets, assist the jury in answering the question propounded. Cooper v. North Carolina R. Co., 140 N.C. 209, 52 S.E. 932, 3 L.R.A.,N.S., 391. The inventory was admitted in Hanks v. Norfolk & Western R. R., 230 N.C. 179, 52 S.E.2d 717, because it showed a claim for salary owing, thus tending to establish an existing earning capacity. The inventory here offered gave no indication whatsoever of any earning capacity.

No error.

PARKER, Justice (dissenting).

This is an action to recover damages for death by wrongful act. The defendant in his answer admitted that he unlawfully killed plaintiff's intestate, that he pleaded guilty to second degree murder in the killing of plaintiff's intestate, and is now serving a sentence in the State Prison for such murder.

The judgment of the Court recites that 'the parties, by their counsel of record, stipulated and agreed that the following issue only be submitted to the jury: What amount, if any, is the plaintiff entitled to recover of the defendant?' The jury answered the issue, None.

Plaintiff assigns as error a part of the charge which in effect instructed the jury that plaintiff under the admitted facts here could not recover at least nominal damages.

The right of action to recover damages for death caused by wrongful act was first given in England in 1846 by the statute known as Lord Campbell's Act. Thereafter, statutes providing a remedy for such wrongful act causing death in one form or another were enacted in all, or practically all, of the states of this nation, as well as by the U. S. Congress, and the remedy has also been made available in the Philippine Islands and in Hawaii. 25 C.J.S. Death § 14.

This is written in 25 C.J.S. Death § 96: 'According to the general current of American authority, where it appears in a statutory action for death that the death was caused by defendant's negligence, nominal damages may be recovered, although no actual pecuniary damage has been shown, but in some states the rule is otherwise.'

These cases hold that nominal damages are recoverable in an action for wrongful death, even though no actual pecuniary damage be sustained, or none proved. Battany v. Wall, 232 Mass. 138, 122 N.E. 168; Young v. Columbus & G. R. Co., 165 Miss. 287, 147 So. 342; Rice v. Erie R. Co., 271 Pa. 180, 114 A. 640; Yellow Cab Co. v. Maloaf, 3 Tenn.App. 11; Johnson v. McKnight, 313 Ill.App. 260, 39 N.E.2d 700; Chapman v. Gulf, M. & O. R. Co., 337 Ill. App. 611, 86 N.E.2d 552; Stroud v. Masek, Mo., 262 S.W.2d 47, 51; Turon v. J. & L. Const....

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18 cases
  • Greene v. Nichols, 358
    • United States
    • United States State Supreme Court of North Carolina
    • 14 June 1968
    ...G.S. §§ 28--173, 28--174, does not allow nominal damages or permit the assessment of punitive damages. Armentrout v. Hughes, 247 N.C. 631, 101 S.E.2d 793, 69 A.L.R.2d 620. The burden is on plaintiff to prove that the estate of his intestate suffered a net pecuniary loss as a result of her d......
  • Gay v. Thompson, 207
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    • United States State Supreme Court of North Carolina
    • 4 February 1966 the law of our State, G.S. § 4-1, gave no right of action for the tortious killing of a human being. Armentrout v. Hughes, 247 N.C. 631, 101 S.E.2d 793, 69 A.L.R.2d 620; Hinnant v. Tidewater Power Co., 189 N.C. 120, 126 S.E. 307, 37 A.L.R. 889. The right of action to recover damages for ......
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    • 1 June 1973 the origin and import of the statutes quoted above, see Lamm v. Lorbacher, 235 N.C. 728, 71 S.E.2d 49 (1952); Armentrout v. Hughes, 247 N.C. 631, 101 S.E.2d 793 (1958); Bryant v. Woodlief, 252 N.C. 488, 114 S.E.2d 241, 81 A.L.R.2d 939 (1960). Except as to burial expenses of the deceased,......
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