Hanks v. Norfolk & Western Ry. Co., 737

Citation52 S.E.2d 717, 230 N.C. 179
Case DateMarch 30, 1949
CourtUnited States State Supreme Court of North Carolina

52 S.E.2d 717

230 N.C. 179


No. 737

Supreme Court of North Carolina

March 30, 1949

ERVIN, DEVIN and SEAWELL, JJ., dissenting.

[230 N.C. 180] Civil action to recover damages for death of plaintiff's intestate alleged to have been caused by the wrongful act, neglect or default of the defendant.

The record discloses that plaintiff, administratrix, is the widow of James Garfield Hanks, who was killed on the morning of January 12, 1947, about 8:35 A.M., when a delivery truck of Southern Dairies, Inc., which he was driving, collided with the engine of defendant's passenger Train No. 34 at a grade crossing near Oak Grove Church in Forsyth County.

It is in evidence that the train approached the single-track crossing, with headlight burning, coasting down grade at a speed of 40 or 45 miles per hour. The morning was cold and foggy; the atmosphere hazy. [52 S.E.2d 718]

The deceased was delivering milk, and Lawrence Tuttle, a boy of fifteen years of age, was with him on the 'step-in-drive' truck--a retail delivery truck in which the driver stands up to drive--and as they came to the crossing, with which they were familiar, the deceased brought the truck to a stop. Both looked and listened, but neither saw nor heard the approaching train, and the deceased then drove onto the crossing.

The engineer testified that he sounded the regular crossing whistle, two long and two short blasts, for the crossing in question, 'and I was blowing the last short when I hit the milk truck. * * * I didn't see that truck'.

As bearing upon the measure of damages the plaintiff was allowed to show the gross earnings of the deceased for the past several years and that he was being paid an average weekly wage of $74.40 per week as a swing man or substitute truck driver at the time of his death.

In reply or rebuttal the defendant sought to show what manner of man the deceased was by offering the following:

1. Judgment of Winston-Salem Municipal Court showing that on October 7, 1943, Garfield Hanks 'entered a plea of guilty' and was [230 N.C. 181] adjudged guilty of nonsupport of his two minor children and sentenced to the roads for six months, execution against the person suspended for fifteen years on condition the defendant pay into the Clerk's office $10 per week for the support of his children.

As this judgment was a bar to Hanks' entrance into the Army, it was suspended on February 24, 1944, 'during the period the said defendant is in the Military Service of the United States', the original judgment to be in full force and effect upon the termination of such service.

2. Complaint and order for alimony pendente lite in action filed by Dora A. Hanks v. Garfield Hanks for maintenance and support, said complaint having been filed in the Superior Court of Forsyth County January 29, 1944, and order signed February 9, 1944.

3. Summons and verified complaint filed in the Superior Court of Forsyth County January 11, 1947 in the case of Garfield Hanks v. Dora Alexander Hanks for absolute divorce on ground of two years' separation, it being alleged in the complaint that the plaintiff and defendant therein had entered into an agreement respecting the custody and support of their three minor children. The children were to remain in the custody of the mother, and the plaintiff agreed to pay, through the Clerk's office of the Municipal Court, for their maintenance, support and education, $25 per week until the oldest two, twin girls, reached the age of eighteen years, and thereafter to pay in the same manner and for like purpose $12.50 per week until the youngest child attained the age of eighteen years.

This complaint was filed on the day prior to the death of plaintiff's intestate. The summons was returned unserved due to 'plaintiff's death'.

4. The defendant offered the original inventory of the estate of Garfield Hanks, filed July 25, 1947, showing 'salary due decedent at date of death, $110.33"', the instant action for wrongful death, and nothing more.

All the foregoing evidence offered by the defendant was excluded. Objection and exception in each instance.

The usual issues of negligence, contributory negligence and damages were submitted to the jury and answered in favor of the plaintiff, the jury assessing the damages at $27,500.00.

From judgment on the verdict, the defendant appeals, assigning errors.

Higgins & McMichael, of Winston-Salem, for plaintiff, appellee.

W. W. Coxe, of Roanake, Va., and Craige & Craige, of Winston-Salem, for defendant, appellant.

STACY, Chief Justice.

The appeal presents for review the rulings on the motions for nonsuit and the exception to exclusion of defendant's evidence offered to show the character of the deceased and his disinclination to provide for dependent members of his family. [52 S.E.2d 719]

[230 N.C. 182] The defendant stressfully contends that its motion for judgment of nonsuit should have been allowed, if not at the close of plaintiff's evidence, then certainly at the close of all the evidence. Authorities may be found which lend support to the rulings below, and others which seem to point in the opposite direction. It is clearly a border-line case. Quinn v. Atlantic & Yadkin R. Co., 213 N.C. 48, 195 S.E. 85. Upon full consideration and careful perusal of the record, we are inclined to the view that plaintiff's evidence survives the demurrers and suffices to make it a matter for the jury. Annotation, 162 A.L.R. 96. The rulings on the motions for judgment as in case of nonsuit will be upheld. Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Meacham v. Southern R. Co., 213 N.C. 609, 197 S.E. 189.

We are yet to consider, however, the exclusion of defendant's evidence offered to show the character and fiber of the deceased in dealing with dependent members of his family. Was any of this proffered evidence admissible or was its total exclusion correct? The answer lies in the type of questions to be decided and the pertinency of the evidence as a means to such decision.

It is provided by G. S. 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. 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.

The method established by the decisions for measuring the pecuniary loss resulting from the death of the deceased is to deduct 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. In arriving at this assessment (the present worth of which alone may be awarded the plaintiff), 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 fix upon the net income which the deceased might reasonably be expected to earn from his own exertions, had his death not ensued, and thus get at the pecuniary worth of the deceased to his family. Burns v. Ashboro & M. R. Co., 125 N.C. 304, 34 S.E. 495. It follows, therefore, that evidence to all these points was properly admissible on the hearing. Burton v. Wilmington & W. R. Co., 82 N.C. 504, 505.

Was any of the excluded evidence conducive to one or more of these ends? We think so, especially as it was offered in reply to the evidence [230 N.C. 183] of the plaintiff tending to show the gross earnings of the deceased over a period of time immediately preceding his death.

1. The defendant sought to show that the deceased entered a plea of guilty of non-support of his two minor children in the Winston-Salem Municipal Court on October 7, 1943, and was sentenced to the roads, with execution against the person suspended on condition that he pay into the Clerk's office $10 a week for the support of his children, and that on February 24, 1944, this judgment was ordered in abeyance during the period the deceased was in military service.

This was evidence of more than a single act of dereliction on the part of the deceased. It showed the neglect and disregard of a parent for his children which had necessarily continued for some time before he was hailed into court. Moreover, it revealed a serious defect of character--the will to 'provide not for his own, and especially for those of his own house '. (I Tim.5:8)--and it was competent to be shown in evidence under authority of what was said in Kesler v. Smith, 66 N.C. 154. Dean Wigmore remarks in his valuable work on Evidence, Vol. I, Sec. 210a, 3rd Ed., '* * * it would seem [52 S.E.2d 720] that the particular bad acts of a deceased person would be receivable to evidence his moral character, as far as that character might be material in estimating the damages payable to next of kin in an action for loss of support due to death by wrongful act.'

The evidence was admissible as bearing up on the moral fiber of the deceased and as tending to show what manner of man he was, especially in providing for those of his own household who were dependent upon him. Hicks v. Love, 201 N.C. 773, 161 S.E. 394; Hill v. Erie R. Co., 225 A.D. 19, 232 N.Y.S. 66.

2. The defendant offered the complaint and order for temporary alimony in the wife's action against the deceased for reasonable subsistence and counsel fees, filed in the Superior Court of Forsyth County, January 29, 1944, which on objection were...

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