Carpenter v. Asheville Power & Light Co., 191 N.C. 130 (1926)

Jan. 27, 1926 · Supreme Court of North Carolina

191 N.C. 130

WALTER B. CARPENTER, Administrator, v. ASHEVILLE POWER & LIGHT COMPANY.

(Filed 27 January, 1926.)

1. Electricity — Negligence—Evidence—Nonsuit.

Evidence tliat an electric power company furnished a lower voltage of electricity for domestic purposes by transferring it.from wires carrying a higher and deadly voltage, and that plaintiff's intestate, his wife, was killed by this higher voltage passing along the wires in her home, while engaged in her domestic duties: Held, sufficient of defendant’s actionable negligence to deny its motion as of nonsuit.

2. Damages — Evidence—Offer of Employment.

Upon the issue of the measure of damages in an action for a wrongful death: Held, evidence that plaintiff’s intestate had received an offer to sing in a church choir for twenty-four hundred dollars a year, unaccepted, was incompetent.

3. Evidence — Instructions—Appeal and Error — Prejudice.

Material evidence upon an issue wrongfully admitted will not be considered as nonprejudicial, when emphasized by the judge in his charge to the jury.

4. Damages — Wrongful Death — Negligence—Measure of Damages.

The damages recoverable for the wrongful death of another negligently caused, is the net present pecuniary worth of the deceased, to be ascertained by deducting the probable cost of his own living and his ordinary or usual expenses, from the probable gross income derived from his own exertions, based upon his life expectancy. O. S., T61.

5. Same — State Statutes — Descent and Distribution — Federal Statutes.

Under our State statute allowing the recovery of damages for a wrongful death, the amount is to be disposed of as provided for the distribution of personal property in case of intestacy, while under the Federal statute, the damages are based on the pecuniary loss of those made the beneficiaries -under the provisions of the statute.

Appeal by defendant from Stack, J., at April Special Term, 1925, of Buncombe.

Civil action to recover damages for an alleged wrongful death caused by the defendant’s alleged negligence in failing properly to “ground” its transformers, or secondary system, used in connection with its sale and distribution of electric current for household and commercial purposes.

Plaintiff’s intestate, a young woman thirty years of age, wife and mother, highly educated, peculiarly gifted in music, and of good health, was killed on 7 November, 1923, in the kitchen of her home while discharging some household duty, by coming in contact with an excessive electric current flowing over the wires of the defendant and which were connected witb plaintiff’s borne under a contract to supply his house with electricity for domestic purposes.

The defendant in the operation of its business maintains two sets of wires — one, comprising its primary system, running from its powerhouse to transformers and carrying an electric current of 2200 volts or more, the other, known as its secondary system, running from the transformers, where the Yoltage is “kicked down” to a current of 110 volts, to the homes of its customers for use in lighting and operating small motors, etc. The transformer near the plaintiff’s house, it is alleged, failed to operate, or to reduce the current from the higher to the lower voltage, and in consequence of which the higher voltage was transmitted over the secondary wires to plaintiff’s home and caused the death of his wife. The negligence alleged consists in the failure of the defendant to have its transformers “grounded” so as to convey the deadly current to the ground, rather than over its secondary wires, in case a transformer failed to operate, or in case the primary wires came in contact with the secondary wires, as they did in the instant case.

Upon denial of liability and issues joined, the jury returned the following verdict:

“1. Was plaintiff’s intestate killed by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

“2. What damages, if any, is plaintiff entitled to recover of the defendant? Answer: $35,000.

From a judgment on the verdict for plaintiff, the defendant appeals, assigning errors.

Harkins <& Van Winkle and Mark W. Brown for plaintiff.

Martin, Hollins & Wright for defendant.

Stacy, C. J.

The exception addressed to the refusal of the court to grant the defendant’s motion for judgment as of nonsuit cannot be sustained. The evidence was sufficient to carry the case to the jury. The motion was properly overruled on authority of McAllister v. Pryor, 187 N. C., 832, where the question is fully discussed in a valuable opinion by Associate Justice Clarkson.

But we think the trial court committed error, prejudicial to the defendant, in the admission, over objection, of the evidence of Dr. Ambler, father of plaintiff’s intestate, to the effect that he had seen a.letter from a Mr. Harker, written to his daughter prior to her marriage a.nd seven or eight years before her death, offering her $2,400 a. year to sing in Eiehmond, Va., with the promise that her salary would be increased to $3,000 per annum at the end of the first year. The offer was not accepted and the letter was not in evidence. In fact, plaintiff’s intestate never sang for money at any time. Tbis testimony was incompetent and should have been excluded. As said in Chandler v. Marshall, 189 N. C., 301, “This is not the kind of evidence to be sanctioned by our courts of justice, for the determination of the rights of litigants.” In addition to violating the rule against hearsay, it contains evidence of an unaccepted offer, the reception of which is very generally disapproved by the authorities on the subject. Canton v. Harris, 177 N. C., 10, and cases there cited.

Nor can we hold the admission of this evidence to be harmless error, as suggested by plaintiff, for in delivering his charge to the jury, the judge specifically called attention to it in'the following manner: “The plaintiff contends that Mrs. Carpenter was only about thirty years of age; that she was an educated and intelligent woman, and had a potential power to make much money; that she had been offered $2,400 a year, with promise of increase to $3,000; that her services in the home were of great money value and he cannot supply them except at a high price.” From this, it will be seen that the incompetent testimony of Dr. Ambler was fully submitted to the jury on the issue of damages. Defendant is entitled to a new trial because of this error.

The amount of damages which may be recovered in cases arising under C. S., 160, for the death of a person, caused by the wrongful act, neglect or default of another, is fixed by C. S., 161, at “such damages as are a fair and just compensation for the pecuniary injury resulting from such death.” There is a marked distinction between the measure of damages in cases for wrongful death arising under the federal Employers’ Liability Act and in such cases arising under the State law. Under the State statute, giving a right of action for wrongful death, the damages are based on the present worth of the net pecuniary value of the life of the deceased (Horton v. R. R., 175 N. C., 477), and the amount recovered in such action is to be disposed of as provided for the distribution of personal property in case of intestacy (Hood v. Tel. Co., 162 N. C., 92), while under the Federal act, the damages recoverable are based on the pecuniary loss sustained by the beneficiaries. Cobia v. R. R., 188 N. C., p. 493. Under the State law, the damages for the pecuniary worth of the deceased are to be ascertained by deducting the probable cost of his own living and usual or ordinary expenses from the probable gross income derived from his own exertions based upon his life expectancy. Purnell v. R. R., 190 N. C., 573. And in ascertaining these damages, the jury is at liberty to take into consideration the age, health and expectancy of life of the deceased, his earning capacity, his habits, his ability and skill, the business in which he was employed and the means he had for making money — the end of it all being to enable the jury fairly to determine the net income which the deceased might reasonably have been expected to earn, bad bis death not ensued. In Benton v. R. R., 122 N. C., 1007, tbe following instruction was approved: “To enable tbe jury properly to estimate tbe reasonable expectation of pecuniary advantage from tbe continuance of tbe life of tbe deceased, tbey should consider bis age, habits, industry, means, business qualifications, skill, and bis reasonable expectation of life.” It is only tbe present worth of tbe pecuniary injury resulting from tbe wrongful death of tbe deceased that may be awarded tbe plaintiff. It is not tbe equivalent of human life that is to be given, nor is punishment to be inflicted, or anger to be appeased, or sorrow to be assuaged, but only a fair and just compensation for tbe pecuniary injury resulting from tbe death of tbe deceased is to be awarded. Mendenhall v. R. R., 123 N. C., 275; Russell v. Steamboat Co., 126 N. C., 961; Watson v. R. R., 133 N. C., 188; Gerringer v. R. R., 146 N. C., 32; Ward v. R. R., 161 N. C., 186; Gurley v. Power Co., 172 N. C., 695.

There are other exceptions appearing on tbe record worthy of consideration, but as tbey are not likely to occur on another bearing, we shall not consider them now. For tbe error as indicated, there must be a new trial, and it is so ordered.

New trial.