Rea v. Simowitz

• Decision Date: 22 May 1946
• Docket Number: 522
• Citation: 38 S.E.2d 194,226 N.C. 379
• Parties: REA v. SIMOWITZ et al.
• Court: North Carolina Supreme Court

38 S.E.2d 194

226 N.C. 379

REA v. SIMOWITZ et al.

No. 522

Supreme Court of North Carolina

May 22, 1946

This was an action for damages for wrongful death of plaintiff's intestate, alleged to have been caused by the negligence of the defendants in the operation of a motor truck.

This case was here at Fall Term, 1945, and is reported in 225 N.C 575, 35 S.E.2d 871, where the pertinent facts are stated. A new trial was awarded for error in the judge's instructions to the jury on the issue of damages.

On the second trial the defendants admitted negligence, and only the issue as to the amount of damages was submitted to the jury. Exception was noted to the following portion of the judge's charge:

'There is no yardstick by which, with any degree of accuracy, any jury can measure the value of a human life. A jury can do only as men of prudence and of discretion and common sense and reason are supposed to do: Consider the life itself, the age of the life before decease, the probability of fair development leading to prolonged life, and the consequences flowing from such developments of a natural life. The law, in effect, says that where a human life has been lost as a result of the actionable negligence of another person, the measure of damages is the present value of the pecuniary worth of the life of the deceased, to be ascertained by determining the probable net gross income of that life from his or her own labors or exertions, and by deducting from that probable cost of living and probable expenditures, and then estimating what is the reasonable value, present value in dollars and cents of the accumulations resulting from that net gross income after those deductions of probable cost and probable expenditures. And those things you would ascertain and estimate on the basis of life's expectancy. That's a very material element which would enter into your computations and the estimates and ascertainments, the probable length of prolonged life of the one whose life has been taken. As I started to say before, as simply as I can state the rule it would be to say that where it is in evidence, as in this case, that the age of the deceased is definite and certain, you first would consider how much longer, in all probability, that life would have been extended or prolonged, or what was the reasonable expectation of prolonged life. If in your fair judgment you should determine that the fair and reasonable expectancy would be fifty years, then, of course, your computations would be based upon a probably greater net gross income than if you should fairly ascertain that the probabilities were that the life would be extended-not fifty but only twenty years. But after that has been fairly determined, then you would consider how much would have been the income from the labors, the exertions of the person, that is, the net gross income during the period of life, and then from that you would deduct what you'd find to be the probable reasonable cost of living, and the probable (personal) expenditures other than the cost of living, and deduct those things from what you fairly find to be a net gross income, and then figure the value in presentday terms of dollars and cents, as of the time of your computations.'

The jury answered the issue in the sum of $15,000, and from judgment on the verdict, the defendants appealed.

G T. Carswell and John M. Robinson, both of Charlotte, for plaintiff.

Jones & Smathers, of Charlotte, for defendants.

DEVIN Justice.

Upon the admission that the negligence of the defendants proximately caused the death of the plaintiff's intestate, the trial below resolved itself into an inquiry of damages.

The plaintiff's evidence, which was uncontradicted, tended to show that intestate was a girl nine years of age; that she was a normal healthy child, bright and intelligent; regular in her attendance at school, happy and unusually attractive; of normal physical development for her age, and slightly above the average in size. No evidence of expectancy according to any mortuary table was offered.

Our statute, G.S. s 28-174, permits the recovery for wrongful death of such damages as are a fair and just compensation for the pecuniary injury resulting from such death, and the measure of damages has been declared to be the present value of the accumulations of income which would have been derived from the person's own exertions, after deducting the probable cost of his own living and ordinary expenses, based upon the person's life expectancy; that is, for the period it is determined he would have continued to live if his life had not been cut off by the defendants' wrongful act or neglect. Gurley v. Southern Power Co., 172 N.C. 690, 90 S.E. 943; Purnell v. Rockingham R. Co., 190 N.C. 573, 130 S.E. 313; Carpenter v. Asheville Power & Light Co., 191 N.C. 130, 131 S.E. 400; Queen Coach Co. v. Lee, 218 N.C. 320, 11 S.E.2d 341. While the application of this rule necessarily involves an element of speculation,...