Smith v. Mercer, 2

• Citation: 276 N.C. 329,172 S.E.2d 489
• Decision Date: 11 March 1970
• Docket Number: No. 2,2
• Parties: Gene C. SMITH, Ancillary Administrator of the Estate of Carol Marie Cupic v. Alfred MERCER, James Loys Keown, Kriebel's, Inc. and Charles Rudolph Kriebel, Jr., Administrator C.T.A. of the Estate of Charles Rudolph Kriebel.
• Court: North Carolina Supreme Court

Page 489

172 S.E.2d 489

276 N.C. 329

Gene C. SMITH, Ancillary Administrator of the Estate of Carol Marie Cupic v. Alfred MERCER, James Loys Keown, Kriebel's, Inc. and Charles Rudolph Kriebel, Jr., Administrator C.T.A. of the Estate of Charles Rudolph Kriebel.

No. 2.

Supreme Court of North Carolina.

March 11, 1970.

Yarborough, Blanchard, Tucker & Denson, Raleigh, for plaintiff appellant.

Dupree, Weaver, Horton, Cockman & Alvis, by F. T. Dupree, Jr., and John E. Aldridge, Jr., Raleigh, for defendant appellees Kriebel.

BOBBITT, Chief Justice.

Plaintiff's intestate was killed on March 16, 1968. Chapter 215, Session Laws of 1969, entitled 'AN ACT TO REWRITE G.S. 28--174, RELATING TO DAMAGES RECOVERABLE FOR DEATH BY WRONGFUL ACT,' was ratified April 14, 1969. This action was instituted on July 3, 1969.

G.S. § 28--173 confers upon an administrator the right of action to recover for the wrongful death of his intestate. G.S § 28--174 relates to the basis on which the amount of damages recoverable is to be determined. With reference to the origin and import of these statutes, see Lamm v. Lorbacher, 235 N.C. 728, 71 S.E.2d 49; Armentrout v. Hughes, 247 N.C. 631, 101 S.E.2d 793, 69 A.L.R.2d 640; Bryant v. Woodlief, 252 N.C. 488, 114 S.E.2d 241, 81 A.L.R.2d 939.

On March 16, 1968, the date plaintiff's intestate was killed, G.S. § 28--174 provided: 'The plaintiff in such action may recover such damages as are a fair and just compensation for the pecuniary injury resulting from such death.' In numerous decisions, this Court had held that the measure of the damages recoverable under G.S. § 28--174 for the loss of a human life is the Present value of the Net pecuniary worth of the deceased based upon his Life expectancy. Bryant v. Woodlief, supra, and cases cited. The successive steps by which the jury was to arrive at the amount of its award are set forth in Caudle v. Southern R.R. Co., 242 N.C. 466, 469, 88 S.E.2d 138, 140.

G.S. § 28--174 did not permit the assessment of punitive damages or the allowance of nominal damages. Armentrout v. Hughes, supra, 247 N.C. at 632, 101 S.E.2d 793. Nor did it permit the recovery of funeral expenses. Davenport v. Patrick, 227 N.C. 686, 691, 44 S.E.2d 203, 206. As stated by Reid, J., in Collier v. Arrington's Ex'rs, 61 N.C. 356, and quoted with approval in Armentrout v. Hughes, supra, 247 N.C. at 633, 101 S.E.2d at 795: '(O)ur statute which gives an action to the representative of a deceased party, * * * confines the recovery to the amount of Pecuniary injury. It does not contemplate Solatium for the plaintiff, nor punishment for the defendant. It is therefore in the nature of pecuniary demand, the only question being, how much has the plaintiff (estate) lost by the death of the person injured?' Although the administrator, in a separate personal injury action, could recover for pain and suffering and for hospital and medical expenses between the date of injury and death, these were not proper elements of damage in a wrongful death action. Hoke v. Atlantic Greyhound Corp., 226 N.C. 332, 38 S.E.2d 105; Hinson v. Dawson, 241 N.C. 714, 86 S.E.2d 585, 50 A.L.R.2d 333.

Chapter 215, Session Laws of 1969, provides:

'Section 1. G.S. 28--174 is hereby rewritten to read as follows:

"Sec. 28--174. Damages recoverable for death by wrongful act; evidence of damages. (a) Damages recoverable for death by wrongful act include:

(1) Expenses for care, treatment and hospitalization incident to the injury resulting in death.

(2) Compensation for pain and suffering of the decedent.

(3) The reasonable funeral expenses of the decedent.

(4) The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected:

(i) Net income of the decedent.

(ii) Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered,

(iii) Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered.

(5) Such punitive damages as the decedent could have recovered had he survived, and punitive damages or wrongfully causing the death of the decedent through maliciousness, wilful or wanton injury, or gross negligence.

(6) Nominal damages when the jury so finds.

'(b) All evidence which reasonably tends to establish any of the elements of damages included in subsection (a), or otherwise reasonably tends to establish the present monetary value of the decedent to the persons entitled to receive the damages recovered, is admissible in an action for damages for death by wrongful act.'

'Sec. 2. All laws and clauses of laws in conflict with this Act are hereby repealed.

'Sec. 3. This Act shall not apply to litigation pending on its effective date.

'Sec. 4. This Act shall become effective upon ratification.'

The 1969 Act Ex vi termini does not apply retroactively where the death occurred prior to April 14, 1969, And an action therefor was instituted on or before April 14, 1969, and was pending on that date. The question for decision is whether the 1969 Act applies retroactively where the death occurred prior to April 14, 1969, but no action therefor was pending on that date.

If this action is to be tried in accordance with the provisions of G.S. § 28--174 in effect on March 16, 1968, and the decisions of this Court with reference thereto, the portions of the complaint challenged by defendants' motion were properly stricken. On the other hand, if the 1969 Act, which rewrote G.S. § 28--174, applies to actions based on deaths occurring prior to April 14, 1969, for which no litigation was pending on that date, the challenged allegations were permissible.

On March 16, 1968, when plaintiff's intestate was killed, G.S. § 28--173 and G.S. § 28--174 conferred upon the personal representative of a decedent a right of action to recover 'such damages as are a fair and just compensation for the pecuniary injury resulting from such death.' G.S. § 28--173 and G.S. § 28--174 As rewritten by the 1969 Act confer upon the personal representative of a decedent a new right of action for wrongful death. Although the procedural remedy, an action by the personal representative, is the same, the substantive rights of the parties are different. The 1969 Act provides for the recovery in the personal representative's action of (1) expenses for care, treatment and hospitalization incident to the injury resulting in death; (2) compensation for pain and suffering of the decedent; (3) the reasonable funeral expenses of the decedent; (4) punitive damages; and (5) nominal damages. Prior to the 1969 Act, the administrator had no right of action to recover such damages. Moreover, the 1969 Act provides for the recovery of '(t)he present monetary value of the decedent To the persons entitled to receive the damages recovered,' including but not limited to compensation for enumerated items. (Our italics.) We do not undertake now to define the legal significance of this provision. Suffice to say, damages determinable in accordance with this provision of the 1969 Act are quite different from damages determinable on the basis of the pecuniary injury suffered By the decedent's estate as the result of his death. In our view, the 1969 Act created a cause of action for wrongful death that did not exist on March 16, 1968, when plaintiff's intestate was killed. Questions relating to the elements of such new cause of action will be decided when directly presented in subsequent litigation.

Our conclusion that the 1969 Act created a new cause of action is supported by the decisions considered below.

In Keeley v. Great Northern Ry. Co., 139 Wis. 448, 121 N.W. 167 (1909), a Wisconsin statute in effect when the death occurred limited the damages recoverable to $5,000.00. Thereafter, during the pendency of the action, a statute was enacted which permitted a recovery up to $10,000.00. In holding there could be no recovery in excess of $5,000.00, Winslow, C.J., for the Supreme Court of Wisconsin, said: 'When this accident happened, the plaintiff had a claim for the recovery of not exceeding $5,000. Beyond this amount she had no claim or cause of action. When the Legislature afterward said that in such cases there might be a recovery up to the sum of $10,000, they in effect created a new cause of action for the second $5,000. It was not a mere change in remedy, but to all practical purposes it created a new right of action. If it created a new right, and did not merely change the remedy, it is not applicable to prior transactions.'

In Monroe v. Chase, 76 F.Supp. 278 (D.C.Ill.1947), the wrongful death action was pending when the Illinois statute was amended by increasing the maximum recoverable damages from $10,000.00 to $15,000.00. Denying the plaintiff's application for leave to amend the complaint so as to increase the demand for damages from $10,000.00 to $15,000.00, District Judge Wham said: '(T)he amendment in question amended the right given by the statute rather than the remedy or the procedure by which the statutory right might be ripened into judgment. The amendment increases the liability of one who is guilty under the statute. The amendment is one of substantive law and not one of adjective law. It affects the relief provided by the statute and not the mode of obtaining relief. To give the amendment effect in this case which involves a prior death would be contrary to the well established rule in Illinois that statutes are prospective and will not be considered to have retroactive operation unless the language employed in the enactment is so clear that it will admit of no other construction. (Citations.) Whether or not, under the law of Illinois, the statutory right to relief in a death case may be said to be a vested right, no persuasive authority appears for the position that a statutory increase...