Gay v. Thompson, 207

• Decision Date: 04 February 1966
• Docket Number: No. 207,207
• Citation: 15 A.L.R.3d 983,146 S.E.2d 425,266 N.C. 394
• Court: North Carolina Supreme Court
• Parties: , 15 A.L.R.3d 983 Earl E. GAY, Administrator of the Estate of Baby Gay, Deceased, v. Dr. G. R. C. THOMPSON, Dr. C. J. Powell, Dr. Robert W. Nicholson, and Dr. J. B. Lounsbury.

Page 425

146 S.E.2d 425

266 N.C. 394, 15 A.L.R.3d 983

Earl E. GAY, Administrator of the Estate of Baby Gay, Deceased, v. Dr. G. R. C. THOMPSON, Dr. C. J. Powell, Dr. Robert W Nicholson, and Dr. J. B. Lounsbury.

No. 207.

Supreme Court of North Carolina.

Feb. 4, 1966.

Burney & Burney, Marshall & Williams, and A. Dumay Gorham, Wilmington, for defendant appellant, Dr. G. R. C. Thompson.

Aaron Goldberg, Wilmington, and Eugene H. Phillips, Winston-Salem, for plaintiff appellee.

PARKER, Justice.

The sole question for decision in this case is whether there is a right of action under our wrongful death statute, G.S. §§ 28-173, 28-174, by the administrator of a stillborn child who died as a proximate result of tortious injuries to his mother and himself while en ventre sa mere, when the child was viable at the time of the injuries. This is a case of novel impression in this State.

The common law, adopted as 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 death caused by wrongful act was given in England in 1846 by the enactment of 9 and 10 Victoria, Ch. 93. This statute is commonly called 'Lord Campbell's Act,' because he, who had the rare distinction of having been successively Lord Chief Justice and Lord Chancellor of England, was its author and mainly instrumental is its adoption. In re Estate of Ives, 248 N.C. 176, 102 S.E.2d 807, 72 A.L.R.2d 278; Hartness v. Pharr, 133 N.C. 566, 45 S.E. 901. Thereafter, Lord Campbell's Act has been copied and enacted, with many variations, in all, or practically all, the states of this nation, as well as by the U. S. Congress. Killian v. Southern Ry. Co., 128 N.C. 261, 38 S.E. 873; 25 A C.J.S. Death § 14.

In Armentrout v. Hughes, supra, the Court, after stating that Lord Campbell's Act was enacted in England in 1846, said: '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.'

In this jurisdiction a right of action to recover damages for wrongful death is purely statutory, and exists only by virtue of G.S. §§ 28-173, 28-174. In re Miles, 262 N.C. 647, 138 S.E.2d 487; Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761, 3 A.L.R.2d 1225; In re Estate of Ives, supra; Lamm v. Lorbacher, 235 N.C. 728, 71 S.E.2d 49.

Armentrout v. Hughes, supra, was an action for damages for the wrongful death of plaintiff's intestate, defendant's wife, a woman 80 years old and in good health. Defendant admitted the killing, his conviction for murder and prison sentence, but denied the deceased had any earning capacity. One issue was submitted to the jury: 'What amount, if any, is the plaintiff entitled to recover of the defendant?' The jury answered: 'None.' Judgment was entered on the verdict, and plaintiff appealed. The Court held that plaintiff's contention that he is entitled to nominal damages at least which would entitle him to the costs, G.S. § 6-1, is untenable, and the court's charge limiting recovery to the pecuniary loss resulting from the death is without error.

Hines v. Frink and Frink v. Hines, 257 N.C. 723, 127 S.E.2d 509, was an appeal in two cases, involving claims and counterclaims for personal injuries, property damage, and the wrongful death of Thomas Ray Gore resulting from a collision between a pickup truck and an automobile. Upon the trial Hines and Eagle offered evidence. Frink, administrator, offered none. At the close of all the evidence, the counterclaim (cross-action) of Frink, administrator, for the alleged wrongful death of Gore, his intestate, was nonsuited on motion of Hines and Eagle. The jury awarded damages to Hines and Eagle. Frink, administrator, appealed. On appeal, inter alia, Frink, administrator, assigned as error the court's nonsuit of his counterclaim (cross-action) for the wrongful death of his intestate, Gore. Sharp, J., said for the Court: 'No discussion of negligence or proximate cause is necessary to sustain the motions of Hines and Eagle to nonsuit the action of Frink, administrator, for the wrongful death of his intestate. The offered no evidence and the record is devoid of any evidence as to the age, health, habits, or earning capacity of Gore.'

Scriven v. McDonald, 264 N.C. 727, 142 S.E.2d 585, was an action by plaintiff, administrator, to recover damages for the alleged wrongful death of his intestate, Anthony Glenn Scriven, hereafter called Anthony. Issues as to the alleged negligence of defendants and as to the alleged contributory negligence of Anthony's mother and sole beneficiary were answered in favor of plaintiff, and damages were awarded in the amount of $5,750. Judgment was entered on the verdict. Defendants appealed, and contended the action should have been nonsuited on the ground the evidence fails to show pecuniary loss on account of Anthony's death. Plaintiff's evidence, considered in the light most favorable to him, showed the following facts in brief summary: Anthony on the day of his death was eleven years, four months and fourteen days old. His height was four feet and ten inches. He had not been in any public school. He could dress himself, but there were a few things he could not do; he could not fasten buttons; he could put on his shoes, but he could not tie them. He was mentally retarded, and thereby seriously handicapped. He had not done any work to make money. He was able to understand and carry out simple directions. Bobbitt, J., speaking for the Court, said:

'Plaintiff's evidence and portions of Dr. Mangum's testimony not in conflict therewith confront us with the fact that Anthony, from birth until death, was mentally retarded and thereby seriously handicapped. Absent substantial evidence, medical or otherwise, tending to show a reasonable probability Anthony could or might overcome his handicap, the only reasonable conclusion to be drawn from the evidence is that he would continue to be a dependent person rather than a person capable of earning a livelihood. The burden of proof is upon plaintiff to show pecuniary loss to the estate on account of Anthony's death. In our view, plaintiff's evidence negatives rather than shows such pecuniary loss. Hence, the court erred in denying defendants' motion for judgment of involuntary nonsuit.

'The statute, G.S. § 28-174, leaves no room for sentiment. It confers a right to compensation only for pecuniary loss.'

The Court has consistently held that G.S. §§ 28-173, 28-174, which gives the right of action for wrongful death, confines the recovery to 'such damages as are a fair and just compensation for the pecuniary injury resulting from such death,' and by the express language of G.S. § 28-174 this is a prerequisite to the right to recover damages under our wrongful death statute. 'It does not contemplate solatium for the plaintiff, nor punishment for the defendant.' Negligence alone, without 'pecuniary injury resulting from such death,' does not create a cause of action. Collier v. Arrington's Ex'rs, 61 N.C. 356; Kesler v. Smith, 66 N.C. 154; Carpenter v. Asheville Power & Light Co., 191 N.C. 130, 131 S.E. 400; Hoke v. Atlantic Greyhound Corp., 226 N.C. 332, 38 S.E.2d 105; Armentrout v. Hughes, supra; Hines v. Frink and Frink v. Hines, supra; Scriven v. McDonald, supra.

In Graf v. Taggert, 43 N.J. 303, 204 A.2d 140 (1964), the Court said: 'When our statute [Death Act] was enacted in 1848 it expressly limited damages to pecuniary loss. The same limitation remains today. The act created a new cause of action for the loss suffered by the designated beneficiaries, measured by their reasonable expectations of pecuniary advantage from the continuance of the life of the deceased. [Citing authority.] In the absence of pecuniary loss the cause of action will not lie. [Citing authority.]'

We recognize that the damages in any wrongful death action are to some extent uncertain and speculative. A jury may indulge in such speculation where it is necessary and there are sufficient facts to support speculation. Conversely, damages may not be assessed on the basis of sheer speculation, devoid of factual substantiation. 22 Am.Jur.2d, Damages, § 24; 25 C.J.S. Damages § 26, p. 675 et seq.; Graf v. Taggert, surpa.

In the case of prenatal death there is no competent means of measuring the probable future earnings of the foetus. It is virtually impossible to predict whether an unborn child, but for its death, would have been capable of giving pecuniary benefit to anyone. 'None of the usual indicia such as mental and physical capabilities, personality traits, aptitudes and training of the wrongfully killed are present. While it is true that the social position of the parents may constitute a slight unit of measure, the probable future earnings of a stillborn foetus are patently a matter of sheer speculation. An objection, in the same vein, specifically applicable to the wrongful death action is that it can hardly be seriously contended that the death of a foetus represents any real pecuniary loss to the parents. There may have been a time when the average child went to work as soon as he was able. That day has passed. Today, the rearing of a child typically constitutes a great pecuniary liability for the parents.' Comment, 'Developments in the Law of Prenatal Wrongful Death,' 69 Dickinson Law Review 258, 267 (1965).

In Graf v. Taggert, supra, the sole question on the appeal was ...