Kesler v. Smith

• Decision Date: 31 January 1872
• Citation: 66 N.C. 154
• Court: North Carolina Supreme Court
• Parties: JEREMIAH M. KESLER, Adm'r of the estate of HENRY C. UTLEY v. WILLIAM A. SMITH.

66 N.C. 154

JEREMIAH M. KESLER, Adm'r of the estate of HENRY C. UTLEY

v.WILLIAM A. SMITH.

Supreme Court of North Carolina.

January Term, 1872.

1. To give operation to the maxim leges postoriores, priores contrarias abrogant the latter law must be in conflict with the former, therefore, when a later statute is almost in ipsissimis verbis, with a former one, held, that there was no repeal of the former.

2. The statute, Rev. Code, chap 1, sec's 9, 10, 11, is not repealed by Acts 1868-'69, chap. 113, sec's 70, 71, 72, 114.

3. In actions to recover damages for an injury resulting in death, brought under our act, the correct rule touching the quantum of damages, is, the reasonable expectation of pecuniary advantage, from the continuance of the life of the deceased.

4. In such actions, evidence of the number of children left by the deceased, is inadmisible as irrelevant, and calculated to mislead the jury.

5. In such actions, it is competent to prove the age, strength, health, skill, industry, habits and character of the deceased, with a view to arrive at his pecuniary worth to his family.

The case of Collier v. Arrington, Phil. L., 356, cited and approved.

This was an action of trespass, vi et armis, commenced under the old system under the provisions of chap. 1, sections 9, 10, 11 of the Rev. Code, brought by the plaintiff as the administrator upon the estate of one Henry C. Utley, for the unlawful killing, by defendant, of his intestate, and was tried at July Special Term 1871, of Cabarrus Superior Court, before His Honor, Judge Moore, and a jury. The defendant in open Court, admitted the unlawful killing, and the sole point at issue and tried, was, the question of damages.

Many questions were raised, but those, only, are noticed upon which the opinion proceeds.

The plaintiff offered to show the number of the deceased's family at the time of his death; this evidence was objected to by the defendant, but admitted by the Court.

The defendant proposed to prove that the deceased was often engaged in fights, &c., this was objected to by plaintiff and rejected by the Court.

It was in evidence that the deceased furnished supplies to his family, and was seen carrying them provisions, &c. In reply, the defendant offered to show that the deceased was in the habit of trading with slaves, unlawfully. This evidence was objected to by the plaintiff and rejected by the Court. There was a verdict for $1,500 for the plaintiff and the defendant appealed.

Fowle and W. H. Bailey for the plaintiff .

Dowd (with whom was J. H. Wilson) for the defendant , filed the following brief:

The measure of damages is the pecuniary loss resulting from the wrongful killing. It was not to give damages punitory, or by way of solatium for wounded feelings, &c. See Collier v. Arrington, Phil. Law, 356, and cases cited in Mr. Moore's brief. Also Penn. R. R. Co., v. Butler, 57 Penn., 335. The rule for estimating damages, as laid down in the last mentioned case, being “to take into consideration the age of the deceased, and his ability, and his disposition to labor, and his habits of living and expenditures.”

As to effect of repeal of statute under which cause of action is given, without saving clause, see Gov. v. Howard, 1 Murphy, 465, Pond v. Horne, 65 N. C. Rep., 84, 2 Blackstone, 436. The statute '68-9 gives cause of action in similar, but not, in the same cases as Rev. Code.

READE, J.

The statute upon which this action is founded, is as follows:

“9. Whenever the death of a person shall be caused by the wrongful act of another person, and the wrongful act is such as would have entitled the party injured to maintain an action, and recover damages in respect thereof, if death had not ensued, then and in every such case, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances, as amount in law, to felony.

10. Every such action shall be brought by, and in the name of the personal representative of the deceased, and the amount recovered shall be disposed of, according to the statute for the distribution of personal property in case of intestacy, and in every such action, the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death, &c.

11. The amount recovered in every such action shall be for the exclusive and sole benefit of the widow and issue of the deceased, in all cases where they are surviving.” Rev. Code, ch. 1, Ss. 9, 10, 11.

In 1868-'69 the foregoing statute was, in substance, and almost in the same words, embodied in an “Act concerning the settlement of the estates of deceased persons.” And the same Act repeals “all laws and clauses of laws in conflict with the provisions of this Act.”

Acts 1868-'69, ch. 113. Secs. 70, 71, 72, 114.

The defendant insists, that the Act of 1868-'69, which was subsequent to the cause of action in this case, repeals the Rev. Code under whieh the action was brought, and that leaves the case to be considered, as if the Rev. Code had not existed, and so the action could not be maintained.

It is not necessary for us to decide what would be the effect of repealing a statute, under which a cause of action had arisen, pending the action. See Rev. Code, ch. 108; because we are of the opinion that the Act of 1868-'69, does not have the effect of repealing the Revised Code Statute, because they are not in conflict. The English Statute, 9-10, Vic. c. 93, is substantially the the same, as...