Daughtry v. Cline

Stacy, C. J.,

dissenting: In a warmly contested trial lasting the greater part of a week, two exceptions are presented, and one in respect of the charge on the measure of damages is held for error.

The instruction here challenged seems to have been taken from 3 Sutherland on Damages (1st Ed.), 261, and was approved by this Court in Wallace v. R. R., 104 N. C., 442, 10 S. E., 552; Clark v. Traction Co., 138 N. C., 77, 50 S. E., 518, 107 Am. St. Rep., 526; and Muse v. Motor Co., 175 N. C., 466, 95 S. E., 900. See, also, Patterson v. Nichols, 157 N. C., 406, 73 S. E., 202, where the Statement is characterized as “full and comprehensive/’ and Rushing v. R. R., 149 N. C., 158, 62 S. E., 890, where it is laid down as “the true rule.” For ready comparison, the instruction approved in these cases is reproduced here:

“In this class of cases the plaintiff is entitled to recover as damages one compensation for all injuries, past and prospective, in consequence of the defendant’s wrongful or negligent acts. These are understood to embrace indemnity for actual nursing and medical expenses and loss of time, or loss from inability to perform ordinary labor, or capacity to earn money. Plaintiff is to have a reasonable satisfaction (if he is entitled to recover) for loss of both bodily and mental powers, or for actual suffering, both of body and mind, which are the immediate and necessary consequences of the injury.”

Substantially the same instruction was again upheld in Ruffin v. R. R., 142 N. C., 120, 55 S. E., 86; Alley v. Pipe Co., 159 N. C., 327, 74 S. E., 885; Ledford v. Lumber Co., 183 N. C., 614, 112 S. E., 421; and Murphy v. Lumber Co., 186 N. C., 746, 120 S. E., 342. The instruction is also set out in each of these cases.' The last reference to the Sutherland statement of the rule seems to be in the case of Williams v. Stores Co., 209 N. C., 591, 184 S. E., 496, where the plaintiff was allowed to recover for prospective expenses for “nursing and medical services” without any reference to the present worth of such expenses, opinion by Devin, J. See 15 Am. Jur., 485.

Speaking to a similar instruction (as appears from the original record) in Kennedy v. Tel. Co., 201 N. C., 756, 161 S. E., 396, Adams, J., delivering the opinion of the Court, said: “The instruction as to damages is in substantial compliance with the law. Ruffin v. R. R., 142 N. C., 120; Wallace v. R. R., 104 N. C., 442. If the defendant desired a more elaborate statement of the rule in reference to the present value of the plaintiff’s diminished earning capacity he should have requested an instruction to this effect. Murphy v. Lumber Co., 186 N. C., 746; Hill v. R. R., 180 N. C., 490.”

*388In the instant case, just after concluding the charge on the measure of damages, the court addressed the following inquiry to counsel: “Gentlemen, are there any prayers or instructions or anything you care to have me give in the charge?” (No response.)

A like situation and a like question arose in the case of Hill v. R. R., 180 N. C., 490, 105 S. E., 184. There Walicer, J., delivering the opinion of the Court, said: “If the defendant desired it to he stated more fully, or in any special way, he should himself have asked for an instruction sufficient to present his view, or so as to direct the attention and consideration of the jury more pointedly to the rule of damages. ... ‘A party cannot be silent under such circumstances, and, after availing himself of the chance to win a verdict, raise an objection afterwards. He is too late. His silence will be adjudged a waiver of his right to object, where the instruction of the court is not itself erroneous.’ . . . The instruction, as to damages, was somewhat general, but not inherently erroneous, and, therefore, the rule of practice, which we have just stated, should apply.”

While recognizing the correctness of the present-worth rule, there are many decisions upholding recoveries in the absence of any reference to the matter by the trial court. In 77 A. L. R., 1459, the annotator makes the following statement, and cites numerous Federal and State authorities, including two from North Carolina, to support it: “The most common ground for refusing relief on appeal from a verdict rendered in the absence of a charge limiting recovery for loss of future benefit to present worth is the failure of counsel for the defendant to request such an instruction, the general instruction given being correct, and, hence, the error being one of nondirection rather than misdirection.”

Not only was there no request for any elaboration of the instruction now assigned as error, but after hearing the charge and being invited to offer suggestions, the defendant remained silent and quiescent, and the law says acquiescent. Futch v. R. R., 178 N. C., 282, 100 S. E., 436. “If a party desires fuller or more specific instructions, he must ask for them and not wait until the verdict has gone against him and then, for the first time, complain of the charge.” Simmons v. Davenport, 140 N. C., 407, 53 S. E., 225; Davis v. Keen, 142 N. C., 496, 55 S. E., 359; Harris v. Turner, 179 N. C., 322, 102 S. E., 502. In S. v. Yellowday, 152 N. C., 793, 67 S. E., 480, it was said that this principle has been so often announced “it may be considered as thoroughly well established, if not elementary.”

The precise rule of practice which the plaintiff here invokes to sustain his recovery was applied in the cases of Hill, Murphy, and Kennedy, supra. Daughtry is on all-fours with these cases. The plaintiff is not relying on “one isolated case” as the majority opinion suggests. Nor is he asking for any consideration not accorded other litigants.

*389The majority concedes that Murphy is a direct authority for the plaintiff’s position, and while this case is singled out for disapproval, it is not alone in our Reports. It has been cited a number of times, and not until the present case has it met with disfavor. In Johnston v. Johnston, 213 N. C., 255, 195 S. E., 807, attention was called to the fact that the charge did not specifically refer to future losses. The same is true here.

Usually error comes from talking too much rather than too little. The defendant was apparently satisfied with the instruction at the time. The contention is not that the charge is inherently erroneous, but that it is too brief or inelaborate. The criticism appears meticulous ana attenuate. The charge complies with the law as heretofore declared in a number of eases. See Wallace, Clark, Muse, Patterson, Rushing, Alley, Hill, Ruffin, Ledford, Murphy, Kennedy, Johnston, supra, and Britt v. R. R., 148 N. C., 37, 61 S. E., 601; Boney v. R. R., 145 N. C., 248, 58 S. E., 1082. Indeed, the twice-repeated expression “in one lump sum” was intended to mean, and did mean, that the award should be on the basis of “a cash settlement of the plaintiff’s injuries, past, present and prospective.” Ledford v. Lumber Co., supra; 8 R. C. L., 663. The parties evidently so understood it when they made no response to the court’s inquiry. Such was its definition by the trial court in Cole v. R. R., 211 N. C., 591, 191 S. E., 353, as witness the following (and only) reference to the present-worth rule in that case: “Respecting those damages-which may accrue in the future, that is, their present worth, if paid to her now in a lump sum.” On the whole and under the circumstances disclosed by the record, it would seem that no error has been made manifest. 77 A. L. R., 1459.

The ease of Lamont v. Hospital, 206 N. C., 111, 173 S. E., 46, is distinguishable. There the principal element of damage was the plaintiff’s claim or apprehension of prospective loss. This was stated in the charge at least three times, and so emphasized as to augment the recovery. The opinion there is grounded on argumentation as a result of the court’s action. The same may be said of the other cases cited by the majority, as will appear from an examination of each of the cited cases. No such result is apparent here. See Boney, Johnston, and Cole, supra. The plaintiff was entitled to have the jury consider the depreciation of money in a war economy as well as the lessened difference between its present worth and future value. 77 A. L. R., 1439. Moreover, the facts of the two cases are quite different. Lamont belongs to one line of decisions; Daughtry to another.

Finally, with liability fairly established and some of plaintiff’s witnesses now in the armed services, if a new trial is to be ordered, it should be limited to the issue of damages, as was done in Johnson v. R. R., 163 *390N. C., 431, 79 S. E., 690; Rushing v. R. R., supra; Tillett v. R. R., 115 N. C., 662, 20 S. E., 480; Pickett v. R. R., 117 N. C., 616, 23 S. E., 264, and other cases. The subject case falls in the same category.

Why should the defendant, whose negligence has been established and who was silent when invited to speak about the very matter of which he now complains, be allowed “two bites at the whole cherry”?

WinboeNE, J., concurs in dissenting opinion.