Scriven v. McDonald, 849

• Decision Date: 18 June 1965
• Docket Number: No. 849,849
• Citation: 264 N.C. 727,142 S.E.2d 585
• Court: North Carolina Supreme Court
• Parties: James A. SCRIVEN, Administrator of the Estate of Anthony Glenn Scriven, Deceased, v. Samuel McDONALD and Priscilla McDonald.

Page 585

142 S.E.2d 585

264 N.C. 727

James A. SCRIVEN, Administrator of the Estate of Anthony Glenn Scriven, Deceased, v. Samuel McDONALD and Priscilla McDonald.

No. 849.

Supreme Court of North Carolina.

June 18, 1965.

Marion C. George, Jr., Fayetteville, and Johnson, McIntyre, Hedgpeth, Biggs & Campbell, Lumberton, for plaintiff appellee.

Henry & Henry, Lumberton, for defendant appellants.

BOBBITT, Justice.

Defendants contend the action should have been nonsuited on the ground the evidence fails to show pecuniary loss on account of Anthony's death. The plaintiff's evidence pertinent to this contention, summarized except when quoted, is set forth below.

Anthony's mother and James Scriven, his step-father, were married the day after Anthony's first birthday. They had children. Anthony took the name of 'Scriven' and was reared as a member of this family until his death on May 4, 1963.

Anthony was born December 20, 1951. On the day of his death, his age was eleven years, four month and fourteen days. His height was four feet and ten inches.

Anthony had not been in any public school. When he was about eight, he was taken to Duke Hospital. Acting upon the recommendation of the doctors at Duke, Anthony was taken to O'Berry School at Goldsboro, N. C. He was in O'Berry School for about nine months. According to his mother, Anthony did not want to stay longer, 'resented' the O'Berry School and she 'couldn't bear to let him stay there.'

The Scrivens' two older daughters, ages nine and seven, attended the public schools of Robeson County. These girls could dress themselves. Anthony 'could not do as well as they.' His mother testified: '(Anthony) could dress himself, but there were a few things he could not do, couldn't fasten buttons; could put on his shoes but couldn't tie them.' James Scriven testified: 'Anthony was the sort of child which you might group as a slow to learn, retarded; but he could do some things for himself.' Again: 'He was slower than other children. He wasn't able to apprehend (sic) and wasn't able to do things they could. The other children were nine, seven, six and five. Anthony could do about the same things as the five-year-old child could.'

Anthony was 'a very friendly child.' He went to Sunday school and church with the family and got along well with all the children. His mother testified: 'Anthony played around in the yard and with the rest of the kids.' He had not done any work to make money. He did very well in responding to requests around the house. Members of the family had no difficulty 'communicating with him.'

Mrs. Williams, sister of Anthony's mother, testifed: '(Anthony) was a slow learner, did learn but slower than the average child. He could sing almost any song he heard any choir singing. To pick up a book and read, he did not have this ability. * * * His ability and grasp of things improved as he grew older. His speech was better than it had been for two or three years and could walk better than he had for the past three years. He was able to communicate with us verbally. I was able to give him directions during his life. He carried out the instructions which I gave to him.'

Mrs. Glenn, mother of Mrs. Scriven and of Mrs. Williams, testified she visited Anthony while he was at O'Berry School but 'only saw him when attendants would bring him to us.' On such a visit Anthony cried until he was told 'we were going to take him home.' Then he talked and laughed. His mother brought him home for the Thanksgiving holidays, 1961. He was never taken back. During the last year of his life, at home, 'his condition improved.' She testified: 'I am sure he couldn't come up to what we would call a normal child, but he could learn. His attitude and ability to learn was about eight, nine or ten. At the time of his death would be about on level of about age eight. I was able to talk with him and he with me. He was able to speak in complete sentences. * * * We had never tried to teach him letters much. He had begun to try to write his name. He had gotten 'A' and 'T' pretty good, but not all of them. He was toilet trained when he came from the school. He had receded a lot, but it didn't take but a little while to pick up when he found he was loved.'

Defendant offered in evidence the deposition of Dr. Vernon P. Mangum, Superintendent of the O'Berry School, admittedly a medical expert, specializing in the field of pediatrics and psychiatry. He testified that Anthony had been admitted to 'O'Berry Center' on January 24, 1961; that, although he 'did the initial examination on him when he came in,' he remembered the boy vaguely; and that his testimony was based largely on the medical record made by him and by other physicians at the O'Berry School. He testified, inter alia, as follows: 'When he was admitted, he was observed to be a well-developed nine-year-old male with extreme infantile behavior.' Again: 'He was found to be in too low a level to be included in any training program other than the self-help program in the cottage that all children are involved.' In a test conducted August 17, 1961, 'he earned an I.Q. score of thirty, which would put him in a severely retarded range.' The psychologist who gave the test noted a comment 'that he thought the child was capable of functioning at a slightly higher level, but certainly not a level that could be included in an academic setting.' Again: 'A person with this I.Q. required total supervision all his life.' Again: 'We give total supervision to this group; we don't allow any of them to be out of sight of an attendant at any time, and the home situation actually needs the same. They are actually not responsible for their own safety. They can do simple tasks with a great deal of training. They would not be expected to be self-sufficient in a social sense or an economical sense. It is too nebulous to say directly what the lowest I.Q. rating a person could have and be expected to earn a living, but very few individuals below an I.Q. of fifty are able to make an...