Gray v. . Little , 126 N.C. 385 ( 1900 )

The plaintiff, husband of the deceased, had employed the defendant, Dr. Little, to attend his wife in her confinement.

Judgment on the issues and responses in favor of plaintiff.

Appeal by the plaintiff upon exceptions to the instruction of his Honor, and his refusal of instructions upon the issue of damages. The defendant is a practicing physician and surgeon, and was called to attend the plaintiff's wife in her child-bed sickness. The evidence is not in the record in this Court, and there is no exception to anything at the trial, except that part of the (387) charge copied below.

The allegation is that the defendant by his careless, negligent and unskilled conduct, caused great pain and injury to the plaintiff's intestate (wife), and that by inhuman and cruel treatment by the defendant the child's death resulted after delivery and the death of the wife was hastened and accelerated. The answer denies these allegations. The second issue is, "Was the death of the plaintiff's intestate caused by the defendant's carelessness and inhuman and cruel treatment as alleged?" The jury answered, "Yes, accelerated." The third issue is, "What damage, if any, is plaintiff entitled to recover?" Answer. "Nominal damages — 5 cents."

His Honor, in charging the jury, substantially followed the charge approved in Benton v. R. R., 122 N.C. 1007, and in addition thereto instructed the jury in these words:

"But in considering the second issue as to the cause of the death of the plaintiff's intestate, if you find that the death of the intestate was only hastened or accelerated by the acts or omissions of the defendant as alleged, then you are instructed that, in answering the third issue as to damages, you can not award the plaintiff any more than nominal damages, that is, such a small sum as for instance 5 cents, or other small sum, because in such state of the case if the death of the intestate was only hastened or accelerated by the defendant, you could only respond to this issue in nominal damages." (Exception.) The error in that part of the charge lies in considering the act expediting death, as a mere technical injury. That is not the language of the law, nor of the textbooks on criminal matters. There are instances in the common law reports where the accelerator paid the severest penalty known to the law. We know of no decision of a final appellate court in (388) this country declaring otherwise.

We will only refer to a few of our own cases which are in point on this question — Lewis v. Raleigh, 77 N.C. 229; Coley v. Statesville,121 N.C. 301, and others cited in No. 5024, Womack's Digest. It follows that the prayer referred to in the defendant's second exception was proper for the jury.

Considering the verdict on the second issue, and such evidence as authorized the jury to make that response, it seems fortunate for the defendant that he is not on trial for a high criminal offense, as well as to answer in an action for damages.

There must be a new trial as to damages only on the third issue.

Partial new trial.

Cited: Gray v. Little, 127 N.C. 305; Meekins v. R. R., 134 N.C. 219;Rushing v. R. R., 149 N.C. 163.