Burton v. Wilmington & Weldon R.R. Co.

• Decision Date: 31 January 1881
• Citation: 84 N.C. 192
• Court: North Carolina Supreme Court
• Parties: R. O. BURTON, Jr., Adm'r v. WILMINGTON & WELDON RAILROAD COMPANY.

84 N.C. 192

R. O. BURTON, Jr., Adm'r

v.WILMINGTON & WELDON RAILROAD COMPANY.

Supreme Court of North Carolina.

January Term, 1881.

PETITION to rehear filed by the plaintiff and heard at January Term, 1881, of THE SUPREME COURT.

Messrs. Day & Zollicoffer, J. B. Batchelor and Mullen & Moore, for petitioner .

Messrs. Gilliam & Gatling, contra .

SMITH, C. J.

Upon the former hearing, this case was carefully examined and considered, and after being retained under an advisari, decided, and our conclusion announced at the succeeding term (82 N. C., 504). To the full and elaborate argument now addressed to us on behalf of the plaintiff for a revision of the opinion then formed, we have given the attention due to the importance of the case and the principle involved, and now proceed to announce the result.

Two errors are assigned in the application for are hearing

1. No exception having been taken to the charge in the particular declared to be erroneous or in any other, the point of law, upon which the new trial is granted according to the settled practice was not open to the defendant upon the appeal.

2. The erroneous instruction only affects the quantum of damages, and the new trial should be restricted to that issue, leaving undisturbed the findings upon the others.

I. The first alleged error rests upon a misconception of the decision and the reasoning by which it is supported in the opinion, arising, perhaps, from the prominence given to the instructions of the court. This will appear from a brief recapitulation of what transpired at the trial and bears upon the question involved.

During the trial the plaintiff was allowed to prove, against the defendant's objection, that his intestate was administrator of the estate of one Jno. M. Long, which was largely in debt, and to pay which it would be necessary to sell his real estate of the value of $22,000, as had been done by the succeeding administrator de bonis non, the usual allowance of commission on which was from 2 1/2 to 5 per cent. on the amount of sales, upon the issue of damages sustained by the intestate's premature death. The reception of the evidence is distinctly assigned in the record as error. This court held, and such is still our opinion, that the evidence was admissible and proper to be heard by the jury, in passing upon the value of the intestate's life, if prolonged, to those beneficially interested in its preservation, and to whom the fruits of his skill and labor would belong. It tended to show his business qualifications and the compensation which one of his capacity and repute might be expected to obtain. In other words, as expressed in the opinion, it assisted the jury in determining “what reasonable expectation there was of pecuniary benefits from the continuance of the life of the deceased.” For this restricted purpose the testimony was competent, and the use to be made of it ought to have been explained, then, or afterwards in the charge to the jury. But it seems to have been admitted generally and without qualification, notwithstanding the objection, and left to the jury to draw their own inferences and pass upon its weight for any purpose. If proper explanations as to the legal force and effect of the evidence had been made in the instructions, the objection would have been met and all cause for complaint removed. But no such explanations were given, and the jury were directed in general terms to “carefully weigh all the testimony bearing on each of the issues submitted to them, and to find each issue as the testimony should satisfy them.” They were thus left at liberty to consider the anticipated allowance for services to be rendered, as money lost by his death, and to enter into the measure of damages found in the verdict, thus forming a basis for the estimate of profits for one year, and multiplying the resulting sum by the number of years during which he would probably live. Such is the import of the charge, and this may have been the understanding of the jury in awarding the large sum contained in the verdict, afterwards reduced by the court, with plaintiff's assent, to two-thirds of the amount. The error then consists in admitting the evidence and giving it a direction, and allowing it to be used for an improper purpose to which its competency does not extend, thereby giving point and force to the objection of its being received.

It is error to admit evidence, competent for one purpose only, to be considered and acted on for another and improper purpose. The error lies not only in the omission to make the necessary explanation, but in giving a direction calculated to mislead and which may have misled the jury in rendering their verdict. This is so connected with the facts allowed to be proved as to extend the exception to the reception of the testimony to the disposition afterwards made of it. We have in our own reports a case very similar-- State v. Ballard, 79 N. C., 627. There, upon an indictment for fornication and adultery, the admission of one of the accused parties was received without objection from either, and no instructions were asked as to its effect. The court say: “While, therefore, it (the admission) could not properly be rejected, it was the duty of the judge, either at its introduction or in his charge, to explain to the jury its force and effect, and to tell them it was not to be considered as any evidence against the woman. In failing to do this and submitting all the evidence to the jury, without such explanation, there is error, invalidating the verdict.”

But we are not prepared to concede the proposition, so broadly and strenuously asserted in the argument, and in some degree countenanced by what is said in Williamson v. Canal Co., 78 N. C., 156, and perhaps in other preceding cases, that no errors, however palpable and hurtful, committed in the administration of the law by the action of the judge, are capable of correction unless specially pointed out in an exception on the record. The case prepared on an appeal under our practice is said to be in the nature of a bill of exceptions, and the functions of the appellate court analogous to those exercised by a court of errors, and for most purposes the comparison is admissible.

But the exercise of the revising power of this court is not restricted, as is that of a court of errors. The latter can only reverse and annul for errors assigned, while this court may grant a new trial and restore the case to the condition it occupied before the error was committed, and it may then, avoiding the error, proceed to a final determination. Still, for general purposes, the analogy may be recognized, and we unhesitatingly reaffirm the general rule governing appeals declared in the numerous adjudications cited for the plaintiff. But the rule itself is not without qualification, and enforced, would in some cases lead to disastrous consequences. For the purpose of illustration, let us suppose a case on trial the indisputed facts of which make the prisoner's offence to be manslaughter, and yet under the erroneous charge of the judge the jury find a verdict of murder, and all this fully appears on the record. Because of the inadvertence of counsel, the misapprehension of the judge as to the law and the consequent misdirection given to the jury are not specially pointed out in an exception, and yet the fatal error is apparent to the court. Is the court, in the observance of a strict rule of practice, compelled to shut its eyes to the injustice done the prisoner and affirm a judgment which wrongfully takes his life? In such a case, would not the court interfere and correct a manifest error, although overlooked at the trial, and, therefore, not the subject of a distinct exception? In State v. Johnson, 1 Ired., 354, where the judge corrected the misunderstanding common to the counsel...