Lynchm v. Rosemary Mfg. Co

• Decision Date: 14 October 1914
• Docket Number: (No. 107.)
• Citation: 167 N.C. 98,83 S.E. 6
• Parties: LYNCHM. v. ROSEMARY MFG. CO.
• Court: North Carolina Supreme Court

83 S.E. 6

167 N.C. 98

LYNCHM.

v.ROSEMARY MFG. CO.

(No. 107.)

Supreme Court of North Carolina.

Oct 14, 1914.

Appeal from Superior Court, Halifax County; Connor, Judge.

Action by J. C. Lynch, administrator of Ada Lynch, against the Rosemary Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The action was to recover damages for the wrongful killing of Ada Lynch, deceased, formerly wife of plaintiff administrator, and plaintiff alleged and offered evidence tending to show that on October 17, 1912, he and his then wife, the intestate, were tenants in one of defendant's houses, and the intestate had been for some time and was then sick in bed with typhoid fever, and in violation of their rights, and against the will of plaintiff and deceased, they were wrongfully compelled to remove to another house, the wife being carried from her sick bed on a mattress to a wagon and driven therein one-fourth mile to the other place, etc.; that, from the shock and injury, the intestate, pending or very soon after the removal, became unconscious, and, sinking rapidly, died, as we gather from the testimony, in about one week, several witnesses, having duly qualified as experts, giving it as their opinion, on facts submitted, as in the finding of the jury, that the removal and the manner of it caused her death. De-fondants contended and offered evidence tending to show that the removal was not the cause of the death; that same was done on advice of a physician, cognizant of her condition; that such a course would produce no injury; and that the wife, and more especially the plaintiff, himself consented to the removal taking place, etc. The jury rendered the following verdict: "(1) Did the defendant Rosemary Manufacturing Company unlawfully, wrongfully, or negligently remove Mrs. Ada Lynch, the plaintiff's intestate, from the house in which she was sick to another house, against the protest of her husband or against her will, and thereby cause her death as alleged in the complaint? Answer: Yes.

"(2) If so, what damages is plaintiff entitled to recover of the defendant? Answer: $2,500."

Judgment on the verdict for plaintiff, and defendant excepted and appealed.

Geo. C. Green and W. E. Daniel, both of Weldon, and E. L. Travis, of Halifax, for appellant.

S. G. Daniel, of Littleton, T. M. Pittman, of Henderson, A. P. Kitchin, of Scotland Neck, and Knight, Peebles & Midyett, for appellee.

HOKE,, T. The jury, accepting the plaintiff's version of the occurrence, have rendered a verdict that the defendant, unlawfully and wrongfully caused the death of plaintiff's intestate, and, on careful perusal of the record, we find no good reason for disturbing their conclusion on the issue fixing liability on the company.

It is urged for error that some of the expert witnesses were allowed to give it as their opinion that the removal was the cause of the intestate's death, and in violation of the rule that a witness may not express an opinion on the very question at issue between the parties, citing the court, among other cases, to Summerlin v. Railroad, 133 N. C. 557, 45 S. E. 898, but the position arises from a misconception of the decision in Sum-merlin's Case. In that case, questions propounded to an expert witness were excluded by the trial court, and the ruling was affirmed, because, as interpreted by the appellate court, the questions called for an opinion of the witness on a fact at issue and in controversy, to wit, whether a fall produced the injury as claimed by plaintiff. Speaking to the ratio decidendi of Summerlin's Case, Associate Justice Walker, delivering the opinion, said:

"There is nothing better settled than that a witness can ordinarily speak only of facts within his own knowledge, unless he is an expert, having special scientific knowledge, in which case he may give his opinion, but only upon the facts as they may be found by the jury."

And further:

"Applying these general principles to the particular questions under consideration, we think that those asked the witness * * * by plaintiff's counsel, and which were excluded by the court, were incompetent as being in violation of the fundamental principle upon which the admissibility of expert testimony rests. They require the witness not to express a scientific opinion upon certain assumed facts, but to invade the province of the jury and to decide the very question in dispute as to the cause of the injury to the child."

We are confirmed in this interpretation of Summerlin's Case by what was said concerning it by the same learned judge in the case of Parrish v. Railroad, 14G N. C. 125-127, 59 S. E. 348. In Parrish's Case "plaintiff claimed to have been wrongfully injured by sudden and violent impact of the engine against the car in which plaintiff was a passenger at the time, and that, as a result, plaintiff was thrown against the arm of a seat and severely injured in his back, hips, and spinal column." The following question and answer were held proper:

"If the jury find the facts to be, from the evidence, that the plaintiff was injured by falling back against the arm of a seat in the train, and struck his back in the region of the kidney, and at the time it gave him great pain, followed by faintness or nausea, and that, the second morning thereafter, he passed urine mixed with blood, and that several times since he has passed bloody urine, as late as the 5th day of this month, that his nervous system was affected, and when he makes a misstep, or has a sudden jar, he has acute pain in the region of the kidney, followed by passing bloody urine, what, in your opinion, is the cause of his being affected in this way? The witness answered: 'In my opinion, the kidney was dislocated by the fall, and the dislocation is permanent, and the plaintiff will be disabled for life, unless he has the kidney removed by an operation.' "

There, as...