Taylor v. J. A. Jones Construction Co.

Brogden, J. On the issue of damages, the court charged the jury as follows: “The plaintiff, if entitled- to recover, is entitled to have a reasonable compensation, if he is entitled to recover at all, he is entitled to recover for the loss of both bodily and mental powers, and for actual suffering, both of body and mind, which are the immediate and necessary consequences of the injury. And it is for you, gentlemen of the jury, to say, under all the circumstances, how much — what is a reasonable and fair sum which the defendants should pay the plaintiff by way of compensation for the injuries he has sustained. The age of the plaintiff, his occupation, the nature and extent of his ability to work now, as compared with his ability to work before the injury, his earning capacity at the time of the injury, as compared with his earning capacity *778 at this time, or his earning capacity for the future, are all matters for your consideration, and it is for'you to say what amount, if any, the plaintiff is entitled to recover. Now, the court charges you that the evidence is that the plaintiff was about 40 years of age at the time of his injury, and according to the mortuary table, as laid down by the law, he is supposed to live 28 years longer, under the law — not that he will live that long, because he might not live but a very short time, still, he may live longer than 28 years longer, but the law fixes the limit that he is supposed to live in law as 28 years from the time of his injury, and that is given for the purpose to enable juries to estimate the damages that a person is entitled to recover for the negligence of another person. Now, you have the right to take into consideration, in passing on the question of damages, his health before and his health now, whether he is permanently injured, or whether he was just temporarily injured. The court charges you that if you find that the plaintiff was permanently injured, then he is entitled to recover more damages than if he had only been temporarily injured, or if he were only suffering from a superficial wound. If you find from the greater weight of the evidence that the plaintiff is permanently injured, then you would have the right to take into consideration the suffering he has sustained, his doctor bills, his earning capacity, and his ability to perform labor in the future, because, if he is entitled to recover at all, he is entitled to recover for that period of time that he is disabled to work, or that his earning capacity has been decreased. Now, these are matters for you, and it is for you to say whether he is entitled to recover the sum of $50,000, or a smaller sum. You don’t have to give him $50,000 unless you want to. You may give a smaller amount, and that is matter entirely in your hands to say how much.” Both defendants excepted to the foregoing charge. There are two fatal defects in this instruction: 1. The charge is defective because it fails to limit the damage which may accrue in the future by virtue of permanent injury to the present cash value or present worth thereof. The whole subject has been critically examined and the authorities assembled by Stacy, C. J., in Shipp v. Stage Lines, 192 N. C., 475, and we deem it unnecessary to multiply authorities. Quoting from Murphy v. Lumber Co., 186 N. C., 746, the Chief Justice said: “Defendant’s position in regard to limiting the damages, if any, which may accrue in the future to the present cash value or present worth of such damages is undoubtedly the correct one, for if the jury assess any prospective damages, the plaintiff is to be paid now, in advance, for future losses. The sum fixed by the jury should be such as fairly compensates the plaintiff for injuries suffered in the past and those likely to occur in the future. *779 The verdict should be rendered on tbe basis of a cash settlement of tbe plaintiff’s injuries, past, present, and prospective.” 2. The charge also contains this language: “But tbe law fixes tbe limit that be is supposed to live in law as 28 years from tbe time of bis injury, and that is given for tbe purpose to enable juries to estimate tbe damages that a person is entitled to recover for tbe negligence' of another person.” It is true that the learned trial judge told tbe jury that tbe plaintiff might or might not live 28 years, but immediately following that instruction be gave tbe positive charge above set out. As we construe it, tbe effect of this positive declaration was to instruct tbe jury that they were to consider plaintiff’s expectancy as 28 years, for tbe purpose of estimating damages flowing from tbe injury alleged. In tbe language of Hoke, J., in Sledge v. Lumber Co., 140 N. C., 459: “Tbe error here consists in making tbe mortuary tables conclusive as to tbe plaintiff’s expectancy; whereas, by tbe very language of tbe statute, they are only evidential to be considered with all other testimony relevant to tbe issue.” Speight v. R. R., 161 N. C., 80; Odom v. Lumber Co., 173 N. C., 134. Tbe defendant Markham excepted to tbe following testimony: “(Q.) Don’t you know furthermore that Mr. Markham paid very low scale wages?” “(A.) He was paying tbe regular scale. He was paying one dollar an hour.” Tbe record states that this evidence was only admitted to show that incompetent men were employed by Markham. “(Q.) Don’t you know that D. L. Sloan was working on that job opposite Kale at fifty cents an hour, and that be was comparatively a green band?” “(A.) Luke bad bad two years experience.” Tbe evident purpose of this testimony was to establish tbe negligence of Markham in failing to employ competent workmen, but we fail to see bow tbe compensation paid a workman, or fbat be was being paid according to the regular scale, or any other scale, is any evidence of reputation for carelessness in performing bis work. In Walters v. Lumber Co., 163 N. C., 536, this Court quotes with approval tbe following rule as to establishing tbe incompetency of an employee: “Tbe presumption is that tbe master has exercised proper care in tbe selection of tbe servant. It is incumbent upon tbe party charging negligence in this respect to show it by proper evidence. This may be done by showing specific acts of ineompetency, and bringing them home to tbe knowledge of tbe master or .company; or by showing them to be of such nature, character, and frequency that tbe master, in tbe exercise of due care, must have bad them brought to bis notice. But such specific acts of alleged incompetency cannot be shown to prove that tbe servant was negligent in doing or omitting to do tbe act complained of. So it is proper, when repeated acts of incompetency of a *780 certain character are shown on the part of the servant, to leave it to the jury to determine whether they did come to the knowledge of the master, or would have come to his knowledge if he had exercised ordinary care.” Walters v. Lumber Co., 165 N. C., 388; Michaux v. Lassiter, 188 N. C., 132. There are other grave exceptions in the record, meriting close examination and scrutiny, but, as we are compelled to send the case back for a new trial for the error specified, we deem it unnecessary to discuss the other exceptions for two reasons: first, because they may not occur in a subsequent trial; second, in discussing a case of this importance, where a new trial must be awarded, it is practically impossible to prevent employing language in the opinion which may result in advantage to one or the other of the litigants. Suffice it to say that our decision is confined solely and exclusively to the points discussed in this opinion. New trial.