Caudle v. SOUTHERN RAILWAY COMPANY

Bobbitt, J. A majority of this Court is of opinion that the evidence offered by plaintiff was sufficient, when considered in the light most *469 favorable to him, to require submission of the case to the jury. Hence, the assignment of error directed to the denial of defendant’s motion for judgment of nonsuit is overruled. Since a new trial is awarded for reasons stated below, we refrain from a discussion of the evidence presently before us. Harrison v. Kapp, 241 N.C. 408, 85 S.E. 2d 337; Davis v. Finance Co., ante, 233, 87 S.E. 2d 209. In his initial instructions to the jury on the issue relating to damages, the trial judge, with minor variations, used the language of this Court as set forth in Carpenter v. Power Co., 191 N.C. 130, 131 S.E. 400, in giving a general statement of the rule as to the measure of damages applicable in wrongful death actions. G.S. 28-174; Rea v. Simowitz, 226 N.C. 379, 38 S.E. 2d 194; Journigan v. Ice Co., 233 N.C. 180, 63 S.E. 2d 183; Lamm v. Lorbacher, 235 N.C. 728, 71 S.E. 2d 49. The only reference to the element of present value is in this sentence: “It is only the present worth of the pecuniary injury resulting from the wrongful death of the deceased that may be awarded the plaintiff.” In the decisions cited and others of like import the measure of damages, and the successive steps by which the jury is to arrive at the amount of its award, are as set out below. The measure of damages for the loss of a human life is the present value of the net pecioniary worth of the deceased based upon his life expectancy. The net pecuniary worth of the deceased is to be ascertained by deducting from the probable gross income to be derived from his own exertions the probable cost of his own reasonably necessary personal living expenses over the period of his life expectancy. In ascertaining the probable gross income to be derived from his own exertions during the period of his life expectancy, the jury may 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 engaged and the means he had for making money. In ascertaining the probable cost of his reasonably necessary personal living expenses during the period of his life expectancy, the jury may take into consideration his age and manner of living. In ascertaining his life expectancy, the jury may take into consideration the mortuary tables, as evidence, along with other evidence as to his health, constitution and habits. Having thus ascertained the net pecuniary worth of the deceased over the period of his life expectancy, the present value of such net pecuniary worth, that is, its value now in terms of a lump sum presently paid rather than from time to time during his life expectancy, is the amount of damages to be awarded. *470 The trial judge explained to the jury, in relation to the facts, the elements to be considered in determining the life expectancy of the deceased and in determining the net pecuniary worth of the deceased over the period of his life expectancy. However, no further instruction of law was given bearing upon the final essential element, namely, that the jury’s award should be the present value of the net pecuniary worth over the period of his life expectancy. We need not decide whether this omission, standing alone, would constitute prejudicial error. But we are constrained to hold that such omission was prejudicial when considered in connection with the court’s statements of the contentions of plaintiff and defendant, respectively, viz.: “Now, the plaintiff insists and contends that if you would take away from his earnings all but $1,000 a year of his earnings, in other words, that if he would save $1,000 a year for his life expectancy under the mortuary tables, which would be 43% years, in other words, if he made enough to keep himself and then $1,000 a year over, that in 43 and five-tenths years his estate would be deprived of $43,500 in that length of time; that if he had lived longer than that, why then it might have gone up to $50,000; and the plaintiff insists and contends that $1,000 a year savings would not be much for a young man of his ability, his educational qualifications, his appearance, his character, his ability to earn in the future, and that it is not asking much at your hands to award him $50,000, which would be $1,000 a year that he would save if he reached the age of 68 years, which in all probability he would have reached, or maybe longer, but even under the mortuary tables he had an expectancy of 43% years. Therefore, the plaintiff insists and contends that you should answer this issue in a substantial amount and pay to his estate the net pecuniary value of his estate, after deducting his reasonable and usual living expenses from his earnings, and say then what his estate would be worth if he had been permitted to live for his expectancy of life. “Now, the defendant, on the other hand, insists and contends that even if you answer this issue in favor of the plaintiff, that you shouldn’t answer it in any large amount; that your answer to this issue should be in a modest amount; that not many people, even with high school educations, and if they lived out their life expectancy, which all of them do not do, that very few of them save, not so many of them, few of them save as much as $50,000 during their lifetime after paying their ordinary expenses, and that he could have been killed the next year in an automobile wreck, or he could have been killed ten years from now in an automobile wreck, or he could have died of some disease in the meantime, and that in all probability he wouldn’t have reached his life expectancy under the mortuary tables, or any appreci *471 able years in the future, and that you shouldn’t give him the maximum of what you could draw from his expectancy, but you should take all things into consideration and give only a reasonable amount, which would be much less than $50,000 as asked for by the plaintiff.” The quoted statements of the respective contentions were the final instructions to the jury relating to the issue of damages. In explicit and understandable terms the question for decision by the jury was drawn sharply into focus; but in so doing the trial judge inadvertently failed to mention the essential element of present value. Rather, we apprehend that the jury must have understood that its task was to determine the amount plaintiff’s intestate would have accumulated or saved had his life not been cut short by his untimely death. The aforesaid omission of the court below when instructing the jury as to the law in relation to the facts, together with the statement of contentions quoted above, brings the case within the rule that “while ordinarily the misstatement of a contention must be brought to the trial court’s attention in apt time, this is not necessary when the statement of the contention presents an erroneous view of the law or an incorrect application of it.” Blanton v. Dairy, 238 N.C. 382, 77 S.E. 2d 922; Harris v. Construction Co., 240 N.C. 556, 82 S.E. 2d 689. We therefore hold that the instructions given did not sufficiently explain to the jury that its award should be the present value of the net pecuniary worth over the period of life expectancy. The difference between such net pecuniary worth and the present value thereof, particularly in respect of a person eighteen years old, is so great that the prejudicial effect of the instructions is apparent. So, for the error indicated, a new trial is awarded. We refrain from discussion of other assignments of error directed to the charge. The questions presented thereby may not recur when the case is tried again. New Trial.