Brown v. Moore

213 S.E.2d 342 (1975) 286 N.C. 664

Evelyn B. BROWN, Administratrix of the Estate of Michael Ray Brown, Deceased
v.
Edward Michael MOORE.

No. 92.

Supreme Court of North Carolina.

April 14, 1975.

Floyd & Baker by Walter W. Baker, Jr., High Point, for plaintiff appellant.

Henson & Elrod by Perry C. Henson and Joseph E. Elrod, III, Greensboro, for defendant appellee.

SHARP, Chief Justice.

On her appeal to the Court of Appeals, plaintiff assigned as error the court's refusal to set the verdict aside. Inter alia, she contended the award of damages was inadequate as a matter of law "because absolutely no value was placed on the life of plaintiff's intestate" and the court's refusal to set the verdict aside was "an abuse of discretion." With reference to this assignment, the Court of Appeals held that whether the verdict should be set aside was in the discretion of the trial judge, and the plaintiff had failed to show "an abuse of discretion." In this Court, plaintiff renews her contentions with reference to the asserted inadequacy of the verdict and brings forward all other assignments of error presented to the Court of Appeals.

The evidence, when considered in the light most favorable to plaintiff, was sufficient to support findings that Brown's death was proximately caused by the actionable negligence of Moore and that such actionable negligence was wilful and wanton. Also, considered in the light most favorable to defendant, the evidence was sufficient to support a finding that negligence on the part of Brown contributed to his death as a proximate cause thereof. Gray's testimony tended to show that he repeatedly protested the speed at which Moore was driving but to no avail; that Gray climbed over the front seat to a safer position in the back; that Brown did not protest Moore's speed or call upon him to slow down but gave directions to Moore with reference to how to take the curves at high speed.

The right of action to recover damages for wrongful death was created by and is based on the statute codified as G.S. § 28-173. G.S. § 28-174, as rewritten by Chapter 215, Session Laws of 1969 (1969 Act), sets forth the items for which damages are recoverable. It does not purport to identify the beneficiaries of such damages as the jury may award. The distribution of whatever recovery is obtained is governed by the provisions of G.S. § 28-173. Bowen v. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973). The opinion in Bowen sets forth the full text of G.S. § 28-173 and sets forth in full all provisions of the 1969 Act, codified as G.S. § 28-174.

G.S. § 28-174(a) provides: "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:

"a. Net income of the decedent,

"b. Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered;

"c. 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 for wrongfully causing the death of the decedent through maliciousness, wilful or wanton injury, or gross negligence;

"(6) Nominal damages when the jury so finds."

There was no evidence concerning expenses recoverable under (1) unless the ambulance bill of $23 is so considered. Injury and death having occurred simultaneously, there was no basis for recovery under (2) on account of the pain and suffering of the deceased. The verdict provided for the recovery under (3) of funeral expenses. Although punitive damages are recoverable under (5) under specified conditions, the jury elected to make no award therefor. Since the jury awarded actual damages, the provisions of (6) relating to nominal damages are inapplicable.

In the present factual situation, whether the verdict should have been set aside as a matter of law on the ground of inadequacy of the award depends upon the answer to this question: Assuming plaintiff's right to recover, was she entitled as a matter of law to recover some amount of damages for all or any of the items set forth in G.S. § 28-174(a)(4)(a)(b) and (c), when there is any evidence upon which such recovery could be based? The court instructed the jury that damages were recoverable for these items. However, the jury did not see fit to award damages therefor.

Subdivisions a, b, and c of G.S. § 28-174(a)(4) enumerate some of the factors to be considered in determining "[t]he present monetary value of the decedent to the persons entitled to the damages recovered." (Our italics.) Obviously, damages for any of these items, unless the decedent was a person of established earning capacity beyond his or her personal needs, involve in large measure speculative and intangible considerations.

The present monetary value of the decedent to the persons entitled to receive the damages recovered will usually defy any precise mathematical computation. 22 Am.Jur.2d Death § 267 (1965). Therefore, the assessment of damages must, to a large extent, be left to the good sense and fair judgment of the jury—subject, of course, to the discretionary power of the judge to set its verdict aside when, in his opinion, equity and justice so require. See Walston v. Greene, 246 N.C. 617, 99 S.E.2d 805 (1957); 25A C.J.S. Death § 115 (1961). The fact that the full extent of the damages must be a matter of some speculation is no ground for refusing all damages. See Bowen v. Rental, 283 N.C. at 419, 196 S.E.2d at 805-806. Notwithstanding, where actual pecuniary damages are sought, the plaintiff must satisfy the jury by the greater weight of the evidence of the existence of damages and of facts which will furnish some basis for a reasonable assessment. Lieb v. Mayer, 244 N.C. 613, 94 S.E.2d 658 (1956). "[T]he damages in any wrongful death action are to some extent uncertain and speculative. A jury may indulge in such speculation where it is necessary and there are sufficient facts to support speculation. Conversely, damages may not be assessed on the basis of sheer speculation, devoid of factual substantiation." Gay v. Thompson, 266 N.C. 394, 398,146 S.E.2d 425, 428 (1966). A fortiori, a jury will not be required to award damages when the evidence adduced does not establish to its satisfaction facts which will reasonably support an assessment. In such a situation, by Subsection (6) the Legislature authorized "[n]ominal damages when the jury so finds." (Our italics.) Permission is granted; no command is given.

In every wrongful death action, as in other suits for damages, and as the judge did here, the court instructs the jurors that they are the sole judges of the facts; that the plaintiff must satisfy the jury by the greater weight of the evidence the amount of damages, if any, that he is entitled to recover for the death of his decedent; that otherwise they will answer the issue of damages "Nothing." See Paris v. Aggregates, Inc., 271 N.C. 471, 157 S.E.2d 131 (1967). The jurors being "the sole judges of the facts" are necessarily the sole judges of whether they are "satisfied from the evidence and by its greater weight" that plaintiff sustained damages and, if so, whether there is evidence from which they can reasonably determine the approximate amount of the plaintiff's pecuniary loss.

We hold, therefore, that in awarding damages for wrongful death the jury is not ordinarily required as a matter of law to award damages for all or any of the items specified in a, b, and c of G.S. § 28-174(a)(4). It is only when the jury has arbitrarily disregarded the law and the evidence that the judge must exercise his judicial discretion and set the verdict aside.

On her appeal to this Court plaintiff contends that the decision of the Court of Appeals is in conflict with our decision in Robertson v. Stanley, 285 N.C. 561, 206 S.E.2d 190 (1974), and should be reversed for that reason.

Robertson v. Stanley, supra, is distinguishable in the respects noted below. In Robertson, the separate actions grew out of the serious injuries sustained by a nine-year-old boy who survived. His injuries necessitated operations and hospitalization. Medical and hospital bills incurred by the boy's father for the treatment of the boy's injuries amounted to $1,970. The boy's action for personal injuries, including pain and suffering, and the father's action to recover for medical and hospital expenses (stipulated to be $1,970) were consolidated for trial. After answering the issues of negligence and contributory negligence in favor of the plaintiffs, the issue of damages in the father's case was answered "$1,970." The issue of damages in the boy's case was answered "none." Since the boy's personal injuries, including pain and suffering, were established facts, this Court held "the verdict [was] contrary to law, inconsistent, invalid and should have been set aside ex mero motu." Id. at 564, 206 S.E.2d at 192.

Here, as also in Bowen, supra, there was no interval between decedent's injury and death and thus no pain and suffering. Further, the evidence tending to show "the present monetary value" of Brown to his parents was inconclusive.

Since a new trial is awarded on other grounds, we do not consider plaintiff's contention that the court's failure to set aside the verdict on account of inadequacy of the award was an abuse of discretion.

Plaintiff renewed in this Court her contention that her case was substantially prejudiced by the admission over her objection of incompetent evidence. This evidence consists (1) of testimony elicited by defendant's counsel during his cross-examination of Terry Gray and (2) of defendant's testimony on direct examination. This testimony, together with testimony first received and later stricken, was offered to show that Brown was accustomed to riding with Moore; that, on previous occasions, Moore, accompanied by Brown, had driven his car on many roads to determine the maximum speed at which he could "take the curves"; that Brown had continued to ride with Moore notwithstanding his knowledge of Moore's habit and practice in "taking the curves"; that Brown voluntarily got into Moore's car on the night of 18 August 1972 to "ride around"; that notwithstanding Moore drove with accelerating speed along the curves of Rural Paved Road 1763, Brown did not protest but gave directions as to the proper way to negotiate the curve; and that, under these circumstances, if the negligence of Moore was wilful and wanton, the contributory negligence of Brown was also wilful and wanton.

Defendant's allegations of contributory negligence relate solely to Brown's failure to protest the manner in which Moore was operating his car on the evening of 18 August 1972 and his failure "to remove himself from a place of known and obvious danger despite numerous opportunities to do so in safety." Defendant did not allege that Brown's contributory negligence was wilful and wanton; nor did he allege any facts concerning his own driving on any prior occasion in the presence or absence of Brown.

In cross-examining Gray, defendant's counsel asked whether he, Brown, and Moore, prior to the night of 18 August 1972, had been together in Moore's car when Moore had "taken the curves on any other street in this area." Plaintiff's objections having been overruled, Gray answered that they had been together "maybe twice" when Moore had "taken the curves" on Rotary Drive, "a real curvy road . . . hard to take at high speeds"; that on one of these occasions, when they were going "maybe 50," they hit a hump in the road and "[t]he wheels came off the ground and the car slipped sideways" and stopped "against the curb."

The testimony of defendant on direct examination relating to prior conversations and transactions with Brown is set forth below:

Defendant was asked: "Can you tell us what kind of motor [defendant's 1962 Chevrolet four-door sedan] had in it, how it was equipped, and so forth?" Over plaintiff's objection, defendant answered: "Well, the car was, had a 283 in it, three-quarter cam with a double barrel, and I had it geared for drag, it would run 110 miles per hour wide open." Thereupon, defendant was asked: "Did your friend, Mr. Brown, know that?" Prior to plaintiff's objection, defendant had answered to this extent: "Yes, sir, he knew it. He was one that really encouraged me to gear it like that. We talked about cars all the time. He said, ``Mike, it would be best___'"

At this point defendant's testimony was interrupted by plaintiff's objection on the ground the testimony was incompetent under G.S. § 8-51. After a colloquy with counsel, the court ruled that defendant could be examined "with regard to what type automobile he had, what type engine, and that sort of thing." After announcing his ruling, the court stated: "I will sustain the objection." Thereupon, upon motion of plaintiff's counsel, the court instructed the jury as follows: "Members of the Jury, you will not consider this witness's testimony as to what the deceased person may have encouraged him to do about his automobile or engine."

After testifying fully concerning what had occurred on the night of 18 August 1972, which included testimony that the tachometer indicated his speed was "between 70 and 75" shortly before the wreck, defendant was asked: "Now, then, on previous occasions prior to this night had you been with Mr. Mike Brown on other streets in and around the City of Greensboro where you all had taken some curves?"

Upon plaintiff's objection, the court stated: "Well, the door has been opened as to previous occasions on Rotary Drive. If you would limit your examination___"

After a brief recess, defendant testified, in response to his counsel's questions, that he had heard Gray testify "about some occasions on Rotary Drive here in High Point about [Moore] and [Gray] and Mike Brown being together." (Our italics.) When defendant was asked to "tell the jury about that episode and those occasions," (our italics) plaintiff objected. Overruling plaintiff's objections, the court instructed the jury as follows:

"Members of the Jury, I instruct you that this evidence will be considered by you insofar only as it may tend to support or corroborate the testimony of the witness, Terry Gray, who testified about the same matters yesterday. It is not to be considered by you for any other purpose." (Our italics.)

Thereafter, defendant testified as follows: "Well, a street back over in Emerywood section, Rotary Drive, and it consists of a few S-curves down through there, and well, just about every Saturday night we would go down through them." (Our italics.)

Plaintiff objected again, stressing the point that there was nothing in Gray's testimony about "every Saturday night" and defendant's testimony did not corroborate the testimony of Gray. Overruling this objection, the court instructed the jury as follows:

"Members of the Jury, you will not consider any evidence which does not corroborate the testimony of Terry Gray insofar as this may vary from his testimony; you are not to consider it as substantive evidence in any way."

Thereupon, defendant testified: "Just about every Saturday night, I am not sure, some nights we might skip a night—we would go down through them curves and sometimes I would go down through them by myself." Defendant's further extensive testimony was to the effect that he and "all the boys up to about seven" had driven through unidentified curves at various speeds.

With reference to the occasion when, according to Gray, Moore's car had slid sideways into the curb, defendant testified: "[I], Donnie Presnell and Terry Gray came up over the drive and there was leaves or something on the road and the car turned sideways and it started sliding, and I straightened it back up and the back wheels slid up against the curb and just touched it and come back around. I wouldn't turn the wheel, I could whip it one way and the other and got it straight and kept on going. The only thing said about that was ``[w]e about lost it.'"

When plaintiff objected to the portion of this testimony which did not corroborate Gray, the court stated: "The jury has been instructed concerning that."

At this point, the record shows the following: "The Jurors retired to the Jury Room. In the absence of the Jury, it was clarified that when the car slid sideways on Rotary Drive that only Terry Gray and Donnie Presnell were with the witness and that Mike Brown was not present." (Our italics.)

When the jury returned, the court gave the following instruction: "Members of the Jury, in your absence I have ALLOWED a motion to strike a portion of the testimony of this witness relating to the time he lost control of his car temporarily and it slid to the side of the street and hit the curb and he was whipping the steering wheel back and forth to get it straightened out. It appears from the record that the deceased, Mike Brown, was not in the automobile on that occasion, and it is not competent as evidence in this case and you should disregard the testimony of this witness concerning that event."

After defendant had testified that Brown was not present with him, Gray and Presnell on the occasion referred to in Gray's testimony, he was asked concerning occasions when Brown was with him when he was driving on Rotary Drive. Although defendant did not identify any particular instance and stated he was unable to state the number of such instances, the thrust of his testimony was that Brown had been with him on such occasions over a period of four years.

Defendant was asked: "Was there any other street other than Rotary Drive where the curves were being taken at certain speeds when Mike was present___before the accident?" Plaintiff's objection having been overruled, defendant answered: "In the City, just Rotary Drive. Outside the City, it is a country road out there going towards my brother-in-law's house and he was with me about between eight and fifteen times, I'd say, out that way."

Defendant was asked: "Have you been in a car when Mike Brown was present when cars were being driven by other boys when these curves were taken?" Plaintiff's objection having been overruled, defendant answered: "Yes, sir."

G.S. § 8-51 in pertinent part provides: "Upon the trial of an action . . . a party . . . interested in the event. . . shall not be examined as a witness in his own behalf or interest . . . against the administrator . . . of a deceased person . . . concerning a personal transaction or communication between the witness and the deceased person. . .; except where the . . . administrator. . . is examined in his own behalf, or the testimony of the . . deceased person is given in evidence concerning the same transaction or communication."

Plaintiff-administratrix offered the testimony of Gray relating to what happened during the evening of Friday, 18 August 1972, from the time he, Brown and defendant got together until the wreck causing Brown's death. Thereby she rendered competent the testimony of Moore concerning the same transactions and communications. Carswell v. Greene, 253 N.C. 266, 116 S.E.2d 801 (1960). Plaintiff interposed no objection to any of defendant's testimony concerning what happened when he, Gray and Brown were together during the evening of 18 August 1972. However, Gray's testimony concerning what happened during this period did not render competent testimony of defendant concerning what may have occurred between him and Brown on unrelated prior occasions. 1 Stansbury, North Carolina Evidence (Brandis Revision) § 75.

Plaintiff assigns as error the admission over her objection of testimony by defendant concerning transactions and communications between them on occasions prior to 18 August 1972. She contends this testimony, if relevant, was incompetent under G.S. § 8-51 as construed in Boyd v. Williams, 207 N.C. 30, 175 S.E. 832 (1934), and Stegall v. Sledge, 247 N.C. 718, 102 S.E.2d 115 (1958).

Plaintiff objected to the cross-examination of Gray by defendant's counsel concerning prior occasions when Brown had been a passenger in Moore's car. Although these objections were general, the evidence these questions sought to elicit was not within the issues raised by the pleadings. See G.S. § 1A-1, Rule 15. Defendant's plea of contributory negligence contained no allegation to the effect that Moore was in the habit of taking the curves at maximum speed and that Brown knew it. Nor did the court treat defendant's pleading as having been amended to incorporate such an allegation. Under the court's instruction, contributory negligence in this respect was not submitted to the jury. In this connection, see Roberts v. William N. and Kate B. Reynolds Mem. Park, 281 N.C. 48, 187 S.E.2d 721 (1972).

Over plaintiff's objection, Gray testified that he and Brown were in Moore's car "maybe twice" when Moore had taken the curves on Rotary Drive. Later, it was determined that Brown was not present on the only occasion Gray had attempted to identify.

G.S. § 8-51 did not disqualify Gray from giving testimony otherwise competent concerning transactions and communications between Brown and Moore in Gray's presence on prior occasions. Assuming Gray's testimony was sufficiently definite to have probative value and was otherwise properly admitted in evidence, it was permissible for defendant to testify only with reference to transactions and communications referred to in Gray's testimony. It was determined that Gray's testimony was incorrect—since Brown was not present—with reference to the one occasion identified by Gray. Gray's testimony that "maybe" there had been a different occasion when both Brown and Gray had been with Moore when Moore had taken the curves, without any suggestion as to the time, place or circumstances of such an occasion, was insufficient to identify any specific occasion to which testimony by defendant could relate.

The extensive testimony of defendant concerning rides by Brown with Moore practically every Saturday, including rides on county roads as well as on Rotary Drive, when Moore had taken the curves, did not relate to transactions and communications involved in Gray's testimony and was incompetent under G.S. § 8-51. It related to occasions when Gray was not present, entirely different from any occasion referred to in Gray's testimony. The testimony did not purport to corroborate Gray. The ruling that it be treated as corroborative rather than substantive evidence added nothing to its competency.

Unquestionably, the admission of defendant's testimony, concerning numerous unidentified prior occasions when Brown was riding with him, seriously prejudiced plaintiff's case in that the thrust thereof was to cast Brown in the role of a willing participant in a dangerous venture in which the risks were known and voluntarily assumed by him. It seems probable the prejudicial impact of this erroneously admitted incompetent testimony played a material part in causing the jury to restrict plaintiff's recovery to the exact amount of the out-of-pocket expenses Brown's parents incurred on account of his death.

The court, in reviewing defendant's testimony, stated to the jury: "His [defendant's] testimony further tended to show that on previous occasions the deceased, Mike Brown, had ridden with the defendant on Rotary Drive, which is a curvy road, and also on a county road going to the defendant's brother-in-law's house, at which times the defendant had been driving his car at a high rate of speed." We apprehend that this tended to emphasize the prejudicial impact of the incompetent evidence.

We hold that plaintiff is entitled to a new trial because of prejudicial error in the admission of incompetent evidence over her objection. Hence, the decision of the Court of Appeals is reversed. The case is remanded to that court with direction that it be remanded to the Superior Court of Guilford County for trial de novo.

Reversed and remanded.

COPELAND and EXUM, JJ., did not participate in the hearing or decision of this case.