Hinson v. Dawson

• Decision Date: 30 March 1955
• Docket Number: No. 233,233
• Citation: 241 N.C. 714,86 S.E.2d 585
• Court: North Carolina Supreme Court
• Parties: , 50 A.L.R.2d 333 Annie Jones HINSON, Administratrix of Leonard E. Hinson, Deceased, v. Charles Edward DAWSON and Charles A. Dawson.

Page 585

86 S.E.2d 585

241 N.C. 714, 50 A.L.R.2d 333

Annie Jones HINSON, Administratrix of Leonard E. Hinson, Deceased, v. Charles Edward DAWSON and Charles A. Dawson.

No. 233

Supreme Court of North Carolina.

March 30, 1955

J. Faison Thomson & Son and N. W. Outlaw, Goldsboro for plaintiff, appellant.

Paul B. Edmundson, John S. Peacock, Goldsboro, and Smith, Leach, Anderson & Dorsett, Raleigh, for defendants, appellees.

BOBBITT, Justice.

Plaintiff did not separately state the alleged cause of action for wrongful death and the alleged cause of action for personal injuries between date of injury and death and property damage. While the basis for each is the same wrongful act, the causes of action are separate and distinct. Each should have been alleged as a separate cause of action. The recovery in one is distributable differently from the recovery in the other. Hoke v. Atlantic Greyhound Corp., 226 N.C. 332, 38 S.E.2d 105.

However, the trial judge clarified this confusion in the pleading by submitting, without objection, issues of negligence, contributory negligence and damages as to (1) the personal injury feature, (2) the wrongful death feature, and (3) the property damage feature. The court instructed the jury that, if the collision and resulting personal injury and property damage were caused by defendants' negligence, they would answer the first and seventh issues, 'Yes.' The jury answered these issues, 'Yes,' in plaintiff's favor. The court instructed the jury that, to answer the fourth issue, 'Yes,' plaintiff had to show further that personal injuries received by Hinson in the collision proximately caused his death. The jury answered this issue, 'No.' Apart from this one element, the questions posed by the first, fourth and seventh issues were essentially the same.

The verdict on the fourth issue will stand. The jury did not reach the contributory negligence issue relating to alleged wrongful death. We do not perceive that an error, involving alleged contributory negligence of Hinson, should affect the jury's verdict as to the fourth issue. Hence, the verdict and judgment will stand as a bar to further prosecution of the alleged cause of action for wrongful death. The new trial, ordered for reasons stated below, will be limited to issues relating to Hinson's personal injuries between the date of injury and death and the damage to his automobile.

Ordinarily, an error affecting a single issue is so interrelated with other issues that a complete new trial is awarded therefor; but here the first and seventh issues having been answered, 'Yes,' the only reasonable interpretation of the jury's answer, 'No,' to the fourth issue, is that plaintiff failed to satisfy the jury by the greater weight of the evidence that Hinson died as the result of injuries received in the collision. In this connection, we note that Hinson died 27 Janury, 1954; and that Dr. Winfield Thompson, witness for plaintiff and Hinson's surgeon and physician, testified: 'He did not die as a result of this injury here. He died from a blood clot originating, outside of that injury, from the leg or thigh.'

As pointed out by Walker, J., ordinarily this Court will grant a partial new trial 'when the error, or reason for the new trial, is confined to one issue, which is entirely separable from the others, and it is perfectly clear that there is no danger of complication. Benton v. Collins, 125 N.C. 83, 34 S.E. 242, 47 L.R.A. 33; Rowe v. [Cape Fear] Lumber Co., 133 N.C. 433, 45 S.E. 830. ' Table Rock Lumber Co. v Branch, 158 N.C. 251, 73 S.E. 164, 165; Jackson v. Parks, 220 N.C. 680, 18 S.E.2d 138; Pinnix v. Griffin, 221 N.C. 348, 20 S.E.2d 366, 141 A.L.R. 1164; Journigan v. Little River Ice Co., 233 N.C. 180, 63 S.E.2d 183.

The operation of an automobile 'in any business district' in excess of 20 miles per hour is a criminal offense, punishable by fine or imprisonment or both. G.S. §§ 20-141, 20-38(a), 20-176. Statutes creating criminal offenses are subject to strict construction. State v. Campbell, 223 N.C. 828, 28 S.E.2d 499, and cases cited. This applies to all such statutes, including those relating to the operation of motor vehicles. State v. Hatcher, 210 N.C. 55, 185 S.E. 435; Powers v. Reynolds Bros., 298 Mass. 7, 9 N.E.2d 535. True, the violation of such criminal statute, unless otherwise provided, is held to be negligence per se in the trial of a civil action. Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331. But the statute must be construed as a criminal statute. When so construed, it is applicable alike to criminal prosecutions and civil actions.

The portion of G.S. § 20-38, here concerned, provides:

'Definitions of words and phrases.--The following words and phrases when used in this article shall, for the purpose of this article, have the meanings respectively prescribed to them in this section, except in those instances where the context clearly indicates a different meaning:

'(a) Business Distict.--The territory contiguous to a highway where seventy-five per cent or more of the frontage thereon for a distance of three hundred (300) feet or more is occupied by buildings in use for business purposes. ' (Italics added.)

It is obvious that a motorist may violate the speed statute without being involved in a collision. He does so if he operates in excess of 20 miles per hour 'in any business district.' G.S. § 20-141. A 'business district' is determinable with reference to the statuts of the frontage on the street or highway on which he is traveling. Conditions along intersecting streets or highways are excluded from consideration. Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406. The statute so construed does not apply to a motorist, traveling on an intersecting street or highway, along which there are no buildings, as he approaches and crosses a street or highway solidly built up with business establishments. That situation is controlled by 'Stop' signs, electric signals, or other statutory provisions.

What is meant by 'frontage' contiguous to a highway for a distance of 300 feet? 'In figuring business frontage only that part of the land contiguous to the highway which is available for buildings should be included. ' Wallace v. Kramer, 296 Mich. 680, 296 N.W. 838, 842. Hence, it does not include an intersecting street or highway. Mitchell v. Melts, supra.

Do 'buildings in use for business purposes' include only those in actual contact with the property line? We apprehend that this construction would be too strict. A space, reasonable in extent, intervening between the front of the building and the front property line along the street or highway and used as a means of access thereto, would not destroy the character of the building as being in 'territory contiguous to a highway.' Definitions of the word 'contiguous' are quoted in Mitchell v. Melts, supra. But this would apply only to space encmpassed by a projection or extension of the frontage of the building itself and not to open spaces, if any, out from side walls of such buildings.

This brings us to the vital question, under the facts disclosed by the present record, namely: Is the space between buildings to be included or excluded in determining whether 75 per cent or more is occupied by buildings in use for business purposes?

Manifestly, the space occupied by a dwelling and the grounds in connection therewith must be excluded. Moreover the statutory definition relates to frontage actually occupied by buildings in use for business purposes. McGill v. Baumgart, 233 Wis. 86 288 N.W. 799. Hence, the inquiry to determine whether a business district exists is concerned with buildings along the frontage, not to premises (unoccupied by buildings) simply because used for business purposes or incident to the operations of a business establishment.

We think G.S. § 20-141 and G.S. § 20-38(a), fixing the speed limit at 20 miles per hour in a business district, must be construed as intended to apply primarily to sections such as solidly built up business districts. Note the definition of 'business district' as given in ch. 148, Art. I, sec. 1(s), Public Laws of 1927; ch. 407, Art. X, sec. 103, Public Laws of 1937; and ch. 275, Public Laws of 1939, where in 1939 the proportion of the frontage on a highway for a distance of 300 feet occupied by buildings in use for business purposes was increased from 50 per cent to 75 per cent.

It is immaterial, of course, whether the section is within the corporate limits of a municipality. However, the speed limit itself, 20 miles per hour, is indicative of the fact that the statutes relate only to sections where 75 per cent or more of the relevant frontage of 300 feet is actually occupied by buildings in use for business purposes. A sharp distinction is drawn between 'a business district' and 'a residential district.' In the latter, (1) the speed limit is 35 miles per hour; and (2) it consists of the territory contiguous to a highway, not a business district, where 75 per cent or more of the frontage thereon for a distance of 300 feet or more 'is mainly occupied by dewllings or by dwellings and buildings in use for business purposes. ' G.S. § 20-38(w) 1. (Italics added.) Compare Baker v. Court of Special Sessions, 125 N.J.L. 127, 15 A.2d 102, and McGill v. Baumgart, supra, as to the significance of the word 'mainly.'

The trial judge, in his charge, gave the definition of 'business district' in the exact words of G.S. § 20-38(a). He then charged: 'If the road frontage on both sides of the highway No. 70 extending eastwardly from the junction for a distance of 300 feet or more than 75% of the said road frontage occupied by buildings in use for business...