Carpenter v. Asheville Power & Light Co.

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 *132 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 reason *133 ably 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.