Russell v. Windsor Steamboat Co

• Decision Date: 09 June 1900
• Citation: 36 S.E. 191,126 N.C. 961
• Parties: RUSSELL. v. WINDSOR STEAMBOAT CO.
• Court: North Carolina Supreme Court

126 N.C. 961

36 S.E. 191

RUSSELL.

v.WINDSOR STEAMBOAT CO.

Supreme Court of North Carolina.

June 9, 1900.

DEATH — INFANTS — RECOVERY — PERSONAL REPRESENTATIVE—MEASURE OF DAMAGES —LIFE EXPECTANCY—EVIDENCE.

In an action by an administrator to recover for the negligent killing of his 5 months old intestate, under Code, §§ 1498, 1499, authorizing the personal representative of a person whose death is caused by negligent act of another, such as would have entitled the injured person to damages had he lived, to recover such damages as fairly and justly compensate for the pecuniary injury resulting from such death, the measure of damages is the difference between such infant's probable gross income, based on his life expectancy, and the probable cost of his living. The expectancy of the life of a child, when not fixed by statute, is a mattter of evidence.

Faircloth, C. J., dissenting.

Appeal from superior court, Washington county; Coble, Judge.

Action by W. J. Russell, administrator of J. M. Russell, deceased, against the Windsor Steamboat Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Pruden & Pruden and Shepherd & Shepherd, for appellant.

H. S. Ward, for appellee.

DOUGLAS, J. This is an action brought by the plaintiff, as administrator of J. M. Russell, deceased, to recover damages for the death of his intestate, alleged to have been caused by the negligence of the defendant. The said intestate was a child five months old at the time of his death, and was the son of the plaintiff. All the issues were found in favor of the plaintiff, his damages being assessed at $1,000. There are no exceptions, other than those to the issue of damages. The following is the case on appeal: "The court submitted the issues set out in the record. There was evidence introduced by the plaintiff tending to show that the death of the intestate was caused by the negligence of the captain of the steamer Mayflower, running upon the defendant's line, in that he overloaded and improperly loaded the said steamboat, on account of which she turned over, as alleged in the complaint. Upon the fourth issue, as to damages, the following was the entire evidence: W. J. Russell testified that he was the father of the intestate; that on June 30, 1899, he took passage on the steamer Mayflower, at Plymouth, about 4 o'clock, with his wife and their two children; that one of the children, the intestate, was drowned; that the said child was a boy 5 months old, and had never been sick. R. M. Russell testified that she was the mother of the child; that she was holding him in her arms when the boat turned over, and remembers nothing after that time; that the child was a boy 5 months old, and had never been sick. The defendant introduced no testimony. The court submitted the issues set out in the record to the jury, which they answer ed as therein stated. The court charged the jury upon the question of negligence, to which no exceptions were taken. Upon the question of damages the court charged as follows: 'If the jury come to answer the fourth issue, as to damages, then they are instructed that the measure of damages 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. The burden is on the plaintiff to prove by a greater weight of evidence that he has sustained damage; and if the jury fail to find, under the court's instructions, that the plaintiff has sustained any damages, then the jury will answer fourth issue, "None." But if the plaintiff has proved by greater weight of evidence that he has sustained damages, and in what amount, then the jury will give such sum as their answer to the fourth issue.' To this charge the defendant excepted, and this is his first exception. At the request of the plaintiff's counsel the court charged: 'If the jury come to answer the fourth issue, they shall say whether there was any life expectancy, and should estimate as best they can from their judgment and sound sense what that expectancy is, considering the age and condition of health of the deceased, then find what, in their judgment from all the circumstances, would have been the gross income, and from that gross income deduct what in their Judgment would have been the expenditures of the intestate for the entire period of that expectancy; and the present value of the difference between that gross income and the expenditures will be the measure of damages which you should give.' To this charge the defendant excepted, and this is his second exception. The defendant in apt time asked the court to charge: '(1) That, upon all the evidence introduced, the plaintiff is not entitled to recover substantial damages against the defendant; and the jury will, even if they answer issues 2 and 3, "Yes, " answer the fourth Issue, "Nothing." ' This charge the court refused, and defendant excepted, and this is his third exception. '(2) That, upon all the evidence introduced in this cause, the plaintiff is entitled to recover only nominal damages; and if the jury answer issues 2 and 3, "Yes, " they shall answer the fourth issues, "Five cents and the cost." ' This charge the court refused, and this Is his fourth exception. The jury answered the issues as shown in the record, and the court gave the judgment as therein set forth." Judgment was rendered for the plaintiff in accordance with the verdict.

This case, as presented to us, raises the sole question whether more than nominal damages are recoverable for the negligent killing of an infant incapable of earning anything, without direct evidence of pecuniary damage other than sex, age, and condition of health of the deceased. In the very nature of things, a child 5 months old has no present earning capacity, and has not reached a sufficientstate of development to furnish any indication of his probable earning capacity in the future, other than the fact of being a healthy boy. This is all we know of him, or ever can know. The real question before us is involved in the defendant's second prayer, —that upon the admitted facts the plaintiff is entitled to recover only nominal damages. If there is no error in its refusal, there is no error in the case. If the plaintiff can recover substantial damages, then his prayers are undoubtedly correct. We have examined a great many authorities, but find that the large majority are based upon local statutes, or predicated upon the parent's right to sue for loss of services. In the case at bar the father does not sue in his own right, but bases his cause of action exclusively upon his right to recover, as administrator, the net value of the child's life, —not what his services might have been worth to some one else during his minority, but what his entire life would have been worth to himself, had he lived. In other words, the plaintiff brought his action as he would have done had his intestate been of adult age. In the first place, we must bear in mind that our statute is not like Lord Campbell's act, which was in fact, as it was entitled, "An act for compensating the families of persons killed by accidents." Our statute does not regard the family relation, but gives the cause of action to the personal representative of the deceased, without distinction as to age. It is as follows: "Whenever the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured party had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their executors, administrators, collectors or successors, shall be liable for an action for damages, to be brought within one year after such death, by the executor, administrator or collector of the decedent; and this notwithstanding the death...