Purnell v. Rockingham R. Co.

• Decision Date: 25 November 1925
• Docket Number: 429.
• Citation: 130 S.E. 313,190 N.C. 573
• Parties: PURNELL v. ROCKINGHAM R. CO.
• Court: North Carolina Supreme Court

130 S.E. 313

190 N.C. 573

PURNELL v. ROCKINGHAM R. CO.

No. 429.

Supreme Court of North Carolina

November 25, 1925

Appeal from Superior Court, Richmond County; Bryson, Judge.

Action by Burkett Purnell, Sr., administrator of Clemmons Purnell deceased, against the Rockingham Railroad Company. Judgment was for plaintiff, but, deeming the relief awarded insufficient, he appeals. No error.

If charge as whole is correct, expression standing alone, though technically incorrect, not reversible error.

The action was brought to recover damages for the wrongful death of the plaintiff's intestate, who at the time of his injury was a boy ten years of age, of bright mind, of good health, habits and character, and of fine physique. The issues were answered as follows:

"(1) Was the injury and death of the plaintiff's intestate Clemmons Purnell, caused by the negligence of the defendant as alleged in the complaint? Answer: Yes.

(2) Did the said Clemmons Purnell by his own negligence contribute to and cause his own injury and death as alleged in the answer? Answer: No.

(3) Was the injury and death of Clemmons Purnell caused by the negligence of Burkett Purnell as alleged in the answer? Answer: No.

(4) What damage, if any, is plaintiff entitled to recover of the defendant? Answer: $1,000."

The plaintiff's motion to set aside the answer to the fourth issue for insufficiency of the damages was denied, and the plaintiff excepted. There was a judgment in his favor of $1,000. The plaintiff assigns as error two instructions which were given by the court as to the measure of damages:

(1) "I give you the rule as to award and damage for the wrongful death applicable in the state of North Carolina and direct you to observe it and none other: Where one's death is caused by the negligent acts of another proximately producing it, the amount of award or the damage is subject to the following rule: The award is the present value of the net pecuniary worth of the deceased, to be ascertained by deducting the cost of his own living and expenditures from the gross income, based upon his life expectancy."

(2) "After subtracting his personal expenditures

from that amount they thus reach what is known in law as his net income, and, having deducted this amount, then they determine what is the present pecuniary value of such an amount, and, having done so, the sum arrived at would be the amount of the award."

H. F. Seawell, of Carthage, for appellant.

Bynum & Henry, of Rockingham, for appellee.

ADAMS J.

At common law a civil action could not be maintained against one who had negligently caused the death of another (Craig v. Lumber Co., 189 N.C. 137, 126 S.E. 312), but in 1854 the Legislature enacted a statute authorizing suit by the personal representative of any person whose death had been caused by neglect, default, or wrongful act. Laws of N.C. 1854-55, c. 39. It was provided in section 3 that the jury might give such damages as they should deem fair and just having regard to the pecuniary injury resulting from the wrongful death. The substance of this statute was brought forward by the Legislature of 1868-69 (chapter 113, § 71), and it was enacted that the plaintiff might recover "such damages as are a fair and just compensation for the pecuniary injury resulting from such death." This is the language of the statute now in force. C. S. § 161.

In Kesler v. Smith, 66 N.C. 154, Reade, J., construing the act of 1854, stated the rule for damages to be the "reasonable expectation of pecuniary advantage, from the continuance of the life of the deceased." This statement was approved in Burton v. Railroad, 82 N.C. 505; but in Pickett v. Railroad, 117 N.C. 638, 23 S.E. 264 30 L. R. A. 257, 53 Am. St. Rep. 611, this court disapproved an extension of the rule as made by the trial judge, and held that the measure of damages for the loss of a human life is the present value of the net income, to be ascertained by deducting the cost of living and expenditures from the gross income, and that the jury could not allow more than the present value of the accumulation arising from such net income based upon the expectancy of life. This ruling was approved in Benton v. Railroad, 122 N.C. 1007, 30 S.E. 333, in which Kesler v. Smith, supra, and Burton v. Railroad, supra, were cited as authorities, although there is an intimation in Bradley v. Railroad, 122 N.C. 972, 30 S.E. 8, that the opinion in Kesler's Case followed the English rule. However, in Poe v. Railroad, 141 N.C. 525, 54 S.E. 406, Walker, J., suggested that Pickett's Case, 117 N.C. 639, 23 S.E. 264, 30 L. R. A. 257, 53 Am. St. Rep. 611, stated more definitely than Kesler's Case the proper method of calculation. It will be noted that in Pickett's Case the words, "deducting the cost of living and expenditures from the gross income," were approved by this court on appeal. This identical language or the substance of it was reiterated and confirmed in Mendenhall v. Railroad, 123 N.C. 275, 31 S.E. 480, Russell v. Steamboat Co., 126 N.C. 961, 36 S.E. 191, Watson v. Railroad, 133 N.C. 188, 45 S.E. 555, and...