{ "id": 8570074, "name": "EVELYN B. BROWN, Administratrix of the Estate of MICHAEL RAY BROWN, Deceased v. EDWARD MICHAEL MOORE", "name_abbreviation": "Brown v. Moore", "decision_date": "1975-04-14", "docket_number": "No. 92", "first_page": "664", "last_page": "681", "citations": [ { "type": "official", "cite": "286 N.C. 664" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "206 S.E. 2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": -1 }, { "cite": "22 N.C. App. 445", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11306939 ], "year": 1974, "opinion_index": -1, "case_paths": [ "/nc-app/22/0445-01" ] }, { "cite": "187 S.E. 2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573719 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0048-01" ] }, { "cite": "102 S.E. 2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "247 N.C. 718", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628407 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/nc/247/0718-01" ] }, { "cite": "175 S.E. 832", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "opinion_index": 0 }, { "cite": "207 N.C. 30", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622000 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/nc/207/0030-01" ] }, { "cite": "116 S.E. 2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "253 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624422 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/253/0266-01" ] }, { "cite": "206 S.E. 2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565424 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0561-01" ] }, { "cite": "157 S.E. 2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565056 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0471-01" ] }, { "cite": "146 S.E. 2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "428" } ], "opinion_index": 0 }, { "cite": "266 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560960 ], "year": 1966, "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0394-01" ] }, { "cite": "94 S.E. 2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "244 N.C. 613", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219560 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/244/0613-01" ] }, { "cite": "99 S.E. 2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "246 N.C. 617", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627734 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0617-01" ] }, { "cite": "196 S.E. 2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1973, "pin_cites": [ { "page": "805-806" } ], "opinion_index": 0 }, { "cite": "283 N.C. 395", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559175 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0395-01" ] } ], "analysis": { "cardinality": 1393, "char_count": 38985, "ocr_confidence": 0.583, "pagerank": { "raw": 2.745600979900821e-07, "percentile": 0.8323143550067977 }, "sha256": "d3f44b1546127e2f579efc72ae2c3106443b6df80a794e42d990694cbacf99bb", "simhash": "1:7f262af02094ada2", "word_count": 6608 }, "last_updated": "2023-07-14T20:24:13.966890+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices Copeland and Exum did not participate in the hearing or decision of this case." ], "parties": [ "EVELYN B. BROWN, Administratrix of the Estate of MICHAEL RAY BROWN, Deceased v. EDWARD MICHAEL MOORE" ], "opinions": [ { "text": "SHARP, Chief Justice.\nOn her appeal to the Court of Appeals, plaintiff assigned as error the court\u2019s refusal to set the verdict aside. Inter alia, she contended the award of damages was inadequate as a matter of law \u201cbecause absolutely no value was placed on the life of plaintiff\u2019s intestate\u201d and the court\u2019s refusal to set the verdict aside was \u201can abuse of discretion.\u201d With reference to this assignment, the Court of Appeals held that whether the verdict should be set aside was in the discretion of the trial judge, and the plaintiff had failed to show \u201can abuse of discretion.\u201d In this Court, plaintiff renews her contentions with reference to the asserted inadequacy of the verdict and brings forward all other assignments of error presented to the Court of Appeals.\nThe evidence, when considered in the light most favorable to plaintiff, was sufficient to support findings that Brown\u2019s death was proximately caused by the actionable negligence of Moore and that such actionable negligence was wilful and wanton. Also, considered in the light most favorable to defendant, the evidence was sufficient to support a finding that negligence on the part of Brown contributed to his death as a proximate cause thereof. Gray\u2019s testimony tended to show that he repeatedly protested the speed at which Moore was driving but to no avail; that Gray climbed over the front seat to a safer position in the back; that Brown did not protest Moore\u2019s speed or call upon him to slow down but gave directions to Moore with reference to how to take the curves at high speed.\nThe right of action to recover damages for wrongful- death was created by and is based on the statute codified as G.S. 28-173. G.S. 28-174, as rewritten by Chapter 215, Session Laws of 1969 (1969 Act), sets forth the items for which damages are recoverable. It does not purport to identify the beneficiaries of such damages as the jury may award. The distribution of whatever recovery is obtained is governed by the provisions of G.S. 28-173. Bowen v. Rental Co., 283 N.C. 395, 196 S.E. 2d 789 (1973). The opinion in Bowen sets forth the full text of G.S. 28-173 and sets forth in full all provisions of the 1969 Act, codified as G.S. 28-174.\nG.S. 28-174(a) provides: \u201cDamages recoverable for death by wrongful act include:\n\u201c(1) Expenses for care, treatment and hospitalization incident to the injury resulting in death;\n\u201c(2) Compensation for pain and suffering of the decedent;\n\u201c(8) The reasonable funeral expenses of the decedent;\n\u201c(4) The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected :\n\u201ca. Net income of the decedent,\n\u201cb. Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered,\n\u201ce. Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered.\n\u201c(5) Such punitive damages as the decedent could have recovered had he survived, and punitive damages for wrongfully causing the death of the decedent through maliciousness, wilful or wanton injury, or gross negligence;\n\u201c(6) Nominal damages when the jury so finds.\u201d\nThere was no evidence concerning expenses recoverable under (1) unless the ambulance bill of $28 is so considered. Injury and death having occurred simultaneously, there was no basis for recovery under (2) on account of the pain and suffering of the deceased. The verdict provided for the recovery under (3) of funeral expenses. Although punitive damages are recoverable under (5) under specified conditions, the jury elected to make no award therefor. Since the jury awarded actual damages, the provisions of (6) relating to nominal damages are inapplicable.\nIn the present factual situation, whether the verdict should have been set aside as a matter of law on the ground of inadequacy of the award depends upon the answer to this question: Assuming plaintiff\u2019s right to recover, was she entitled as a matter of law to recover some amount of damages for all or any of the items set forth in G.S. 28-174 (a) (4) (a), (b) and (c), when there is any evidence upon which such recovery could be based? The court instructed the jury that damages were recoverable for these items. However, the jury did not see fit to award damages therefor.\nSubdivisions a, b, and c of G.S. 28-174 (a) (4) enumerate some of the factors to be considered in determining \u201c [t] he present monetary value of the decedent to the persons entitled to the damages recovered.\u201d (Our italics.) Obviously, damages for any of these items, unless the decedent was a person of established earning capacity beyond his or her personal needs, involve in large measure speculative and intangible considerations.\nThe present monetary value of the decedent to the persons entitled to receive the damages recovered will usually defy any precise mathematical computation. 22 Am. Jur. 2d Death \u00a7 267 (1965). Therefore, the assessment of damages must, to a large extent, be left to the good sense and fair judgment of the jury \u2014subject, of course, to the discretionary power of the judge to set its .verdict aside when, in his opinion, equity and justice so require. See Walston v. Greene, 246 N.C. 617, 99 S.E. 2d 805 (1957) ; 25A C.J.S. Death \u00a7 115 (1961). The fact that the full extent of the damages must be a matter of some speculation is no ground for refusing all damages. See Bowen v. Rental Co., 283 N.C. at 419, 196 S.E. 2d at 805-806. Notwithstanding, where actual pecuniary damages are sought, the plaintiff must satisfy the jury by the greater weight of the evidence of the existence of dam\u00e1ges and of facts which will furnish some basis for a reasonable assessment. Lieb v. Mayer, 244 N.C. 613, 94 S.E. 2d 658 (1956). \u201c [T]he damages in any wrongful death action are to some extent uncertain and speculative. A jury may indulge in such speculation where it is necessary and there are sufficient facts to support speculation. Conversely, damages may not be assessed on the basis of sheer speculation, devoid of factual substantiation.\u201d Gay v. Thompson, 266 N.C. 394, 398, 146 S.E. 2d 425, 428 (1966). A fortiori, a jury will not be required to award damages when the evidence adduced does not establish to its satisfaction facts which will reasonably support an assessment. In such a situation, by Subsection (6) the Legislature authorized \u201c [n] ominal damages token the jury so finds.\u201d (Our italics.) Permission is granted; no command is given.\nIn every wrongful death action, as in other suits for damages, and as the judge did here, the court instructs the jurors that they are the sole judges of the facts; that the plaintiff must satisfy the jury by the greater weight of the evidence the amount of damages, if any, that he is entitled to recover for the death of his decedent; that otherwise they will answer the issue of damages \u201cNothing.\u201d See Paris v. Aggregates, Inc., 271 N.C. 471, 157 S.E. 2d 131 (1967). The jurors being \u201cthe sole judges of the facts\u201d are necessarily the sole judges of whether they are \u201csatisfied from the evidence and by its greater weight\u201d that plaintiff sustained damages and, if so, whether there is evidence from which they can reasonably determine the approximate amount of the plaintiff\u2019s pecuniary loss.\nWe hold, therefore, that in awarding damages for wrongful death the jury is not ordinarily required as a matter of law to award damages for all or any of the items specified in a, b, and c of G.S. 28-174 (a) (4). It is only when the jury has arbitrarily disregarded the law and the evidence that the judge must exercise his judicial discretion and set the verdict aside.\nOn her appeal to this Court plaintiff contends that the decision of the Court of Appeals is in conflict with our decision in Robertson v. Stanley, 285 N.C. 561, 206 S.E. 2d 190 (1974), and should be reversed for that reason.\nRobertson v. Stanley, supra, is distinguishable in the respects noted below. In Robertson, the separate actions grew out of the serious injuries sustained by a nine-year-old boy who survived. His injuries necessitated operations and hospitalization. Medical and hospital bills incurred by the boy\u2019s father for the treatment of the boy\u2019s injuries amounted to $1,970. The boy\u2019s action for personal injuries, including pain and suffering, and the father\u2019s action to recover for medical and hospital expenses (stipulated to be $1,970) were consolidated for trial. After answering the issues of negligence and contributory negligence in favor of the plaintiffs, the issue of damages in the father\u2019s case was answered \u201c$1,970.\u201d The issue of damages in the boy\u2019s case was answered \u201cnone.\u201d Since the boy\u2019s personal injuries, including pain and suffering, were established facts, this Court held \u201cthe verdict [was] contrary to law, inconsistent, invalid and should have been set aside ex mero motu.\u201d Id. at 564, 206 S.E. 2d at 192.\nHere, as also in Bowen, supra, there was no interval between decedent\u2019s injury and death and thus no pain and suffering. Further, the evidence tending to show \u201cthe present monetary value\u201d of Brown to his parents was inconclusive.\nSince a new trial is awarded on other grounds, we do not consider plaintiff\u2019s contention that the court\u2019s failure to set aside the verdict on account of inadequacy of the award was an abuse of discretion.\nPlaintiff renewed in this Court her contention that her case was substantially prejudiced by the admission over her objection of incompetent evidence. This evidence consists (1) of testimony elicited by defendant\u2019s counsel during his cross-examination of Terry Gray and (2) of defendant\u2019s testimony on direct examination. This testimony, together with testimony first received and later stricken, was offered to show that Brown was accustomed to riding with Moore; that, on previous occasions, Moore, accompanied by Brown, had driven his car on many roads to determine the maximum speed at which he could \u201ctake the curves\u201d; that Brown had continued to ride with Moore notwithstanding his knowledge of Moore\u2019s habit and practice in \u201ctaking the curves\u201d; that Brown voluntarily got into Moore\u2019s car on the night of 18 August 1972 to \u201cride around\u201d; that notwithstanding Moore drove with accelerating speed along the curves of Rural Paved Road 1763, Brown did not protest but gave directions as to the proper way to negotiate the curve; and that, under these circumstances, if the negligence of Moore was wilful and wanton, th\u00e9 contributory negligence of Brown was also wilful and wanton.\nDefendant\u2019s allegations of contributory negligence relate solely to Brown\u2019s failure to protest the manner in which Moore was operating his car on the evening of 18 August 1972 and his failure \u201cto remove himself from a place of known and obvious danger despite numerous opportunities to do so in safety.\u201d Defendant did not allege that Brown\u2019s contributory negligence, was wilful and wanton; nor did he allege any facts concerning his own driving on any prior occasion in the presence or absence of Brown.\nIn cross-examining Gray, defendant\u2019s counsel asked whether he, Brown, and Moore, prior to the night of 18 August 1972, had been together in Moore\u2019s car when Moore had \u201ctaken the curves on any other street in this area.\u201d Plaintiff\u2019s objections having been overruled, Gray answered that they had been together \u201cmaybe twice\u201d when Moore had \u201ctaken the curves\u201d on Rotary Drive, \u201ca real curvy road . . . hard to take at high speeds\u201d; that on one of these occasions, when they were going \u201cmaybe 50,\u201d they hit a bump in the road and \u201c[t]he wheels came off the ground and the car slipped sideways\u201d and stopped \u201cagainst the curb.\u201d\nThe testimony of defendant on direct examination relating to prior conversations and transactions with Brown is set forth below:\nDefendant was asked: \u201cCan you tell us what kind of motor [defendant\u2019s 1962 Chevrolet four-door sedan] had in it, how it was equipped, and so forth?\u201d Over plaintiff\u2019s objection, defendant answered: \u201cWell, the car was, had a 283 in it, three-quarter cam with a double barrel, and I had it geared for drag, it would run 110 miles per hour wide open.\u201d Thereupon, defendant was asked: \u201cDid your friend, Mr. Brown, know that?\u201d Prior to plaintiff\u2019s objection, defendant had answered to this extent: \u201cYes, sir, he knew it. He was one that really encouraged -me to gear it like that. We talked about cars all the time. He said, \u2018Mike, it would be best \u2014 \u2019 \u201d\nAt this point defendant\u2019s testimony was interrupted by plaintiff\u2019s objection on the ground the testimony was incompetent under G.S. 8-51. After a colloquy with counsel, the court ruled that defendant could be examined \u201cwith regard to what type automobile he had, what type engine, and that sort of thing.\u201d After announcing his ruling, the court stated: \u201cI will sustain the objection.\u201d Thereupon, upon motion of plaintiff\u2019s counsel, the court instructed the jury as follows: \u201cMembers of the Jury, you will not consider this witness\u2019s testimony as to what the deceased person may have encouraged him to do about his automobile or engine.\u201d\nAfter testifying fully concerning what had occurred on the night of 18 August 1972, which included testimony that the tachometer indicated his speed was \u201cbetween 70 and 75\u201d shortly before the wreck, defendant was asked: \u201cNow, then, on previous occasions prior to this night had you been with Mr. Mike Brown on other streets in and around the City of Greensboro where you all had taken some curves?\u201d\nUpon plaintiff\u2019s objection, the court stated: \u201cWell, the door has been opened as to previous occasions on Rotary Drive. If you 'would limit your examination \u2014 \u201d\nAfter a brief recess, defendant testified, in response to his counsel\u2019s questions, that he had heard Gray testify \u201cabout some other occasions on Rotary Drive here in High Point about [Moore] and [Gray] and Mike Brown being together.\u201d (Our italics.) When defendant was asked to \u201ctell the jury about that episode and those occasions,\u201d (our italics) plaintiff objected. Overruling plaintiff\u2019s objections, the court instructed the jury as follows:\n\u201cMembers of the Jury, I instruct you that this evidence will be considered by you insofar only as it may tend to support or corroborate the testimony of the witness, Terry Gray, who testified about the same matters yesterday. It is not to be considered by you for any other purpose.\u201d (Our italics.)\nThereafter, defendant testified as follows: \u201cWell, a street back over in Emerywood section, Rotary Drive, and it consists of a few S-curves down through there, and well, just about every Saturday night we would go down through them.\u201d (Our italics.)\nPlaintiff objected again, stressing the point that there was nothing in Gray\u2019s testimony about \u201cevery Saturday night\u201d and defendant\u2019s testimony did not corroborate the testimony of Gray. Overruling this objection, the court instructed the jury as follows:\n\u201cMembers of the Jury, you will not consider any evidence which does not corroborate the testimony of Terry Gray insofar as this may vary from his testimony; you are not to consider it as substantive evidence in any way.\u201d\nThereupon, defendant testified: \u201cJust about every Saturday night, I am not sure, some nights we might skip a night\u2014 we would go down through them curves and sometimes I would go down through them by myself.\u201d Defendant\u2019s further extensive testimony was to the effect that he and \u201call the boys up to about seven\u201d had driven through unidentified curves at various speeds.\nWith reference to the occasion when, according to Gray, Moore\u2019s car had slid sideways into the curb, defendant testified: \u201c[I], Donnie Presnell and Terry Gray came up over the drive and there was leaves or something on the road and the car turned sideways and it started sliding, and I straightened it back up and the back wheels slid up against the curb and just touched it and come back around. I wouldn\u2019t turn the wheel, I could whip it one way and the other and got it straight and kept on going. The only thing said about that was ' [w] e about lost it.\u2019 \u201d\nWhen plaintiff objected to the portion of this testimony which did not corroborate Gray, the court stated: \u201cThe jury has been instructed concerning that.\u201d\nAt this point, the record shows the following: \u201cThe Jurors retired to the Jury Room. In the absence of the Jury, it was clarified that when the car slid sideways on Rotary Drive that only Terry Gray and Donnie Presnell were with the witness and that Mike Brown was not present.\u201d (Our italics.) . .\nWhen the jury returned, the court gave the following instruction: \u201cMembers of the Jury, in your absence I have ALLOWED a motion to strike a portion of the testimony of - this witness relating to the time he lost control of his car temporarily and it slid to the side of the street and hit the curb.and he was whipping the steering wheel back and forth to get it straightened out. It appears from the record that the deceased, Mike Brown, was not in the automobile on that occasion, and it is not competent as evidence in this case and you should disregard the testimony of this witness concerning that event.\u201d\nAfter defendant had testified that Brown was not present with him, Gray and Presnell on the occasion referred to in Gray\u2019s testimony, he was asked concerning occasions when Brown was with him when he was driving on Rotary Drive. Although defendant did not identify any particular instance and stated he was unable to state the number of such instances, the thrust of his testimony was that Brown had been with' him on such occasions over a period of four years.\nDefendant was asked: \u201cWas there any other street!other than Rotary Drive where the curves were being taken at certain speeds when Mike was present \u2014 before the accident?\u201d Plaintiff\u2019s objection having been overruled, defendant answered: \u201cIn the City, just Rotary Drive. Outside the City, it is a country road out there going towards my brother-in-law\u2019s house and he was with me about between eight and fifteen times, I\u2019d say, out that way.\u201d\nDefendant was asked: \u201cHave you been in a car when Mike Brown was present when cars were being driven by other boys when these curves were taken?\u201d Plaintiff\u2019s objection having been overruled, defendant answered: \u201cYes, sir.\u201d\nG.S. 8-51 in pertinent part provides: \u201cUpon the trial of an action ... a party . . . interested in the event . . . shall not be examined as a witness in his own behalf or interest . . . against the administrator ... of a deceased person . . . concerning a personal transaction or communication between the witness and the deceased person . . . ; except where the . . . administrator . . . is examined in his own behalf, or the testimony of the . . . deceased person is given in evidence concerning the same transaction or communication.\u201d\nPlaintiff-administratrix offered the testimony of Gray relating to what happened during the evening of Friday, 18 August 1972, from the time he, Brown and defendant got together until the wreck causing Brown\u2019s death. Thereby she rendered competent the' testimony of Moore concerning the same transactions and communications. Carswell v. Greene, 253 N.C. 266, 116 S.E. 2d 801 (1960). Plaintiff interposed no objection to any of defendant\u2019s testimony concerning what happened when he, Gray and Brown were together during the evening of 18 August 1972. However, Gray\u2019s testimony concerning what happened during this period did not render competent testimony of defendant concerning what may have occurred between him and Brown on unrelated prior occasions. 1 Stansbury, North Carolina Evidence (Brandis Revision) \u00a7 75.\nPlaintiff assigns as error the admission over her objection of testimony by defendant concerning transactions and communications between them on occasions prior to 18 August 1972. She contends this testimony, if relevant, was incompetent under G.S. 8-51 as construed in Boyd v. Williams, 207 N.C. 30, 175 S.E. 832 (1934), and Stegall v. Sledge, 247 N.C. 718, 102 S.E. 2d 115 (1958).\nPlaintiff objected to the cross-examination of Gray by defendant\u2019s counsel concerning prior occasions when Brown had been a passenger in Moore\u2019s car. Although these objections were general, the evidence these questions sought to elicit was not within the issues raised by the pleadings. See G.S. 1A-1, Rule 15. Defendant\u2019s plea of contributory negligence contained no allegation to the effect that Moore was in the habit of taking the curves at maximum speed and that Brown knew it. Nor did the court treat defendant\u2019s pleading as having been amended to incorporate such an allegation. Under the court\u2019s instruction, contributory negligence in this respect was not submitted to the jury. In this connection, see Roberts v. William N. and Kate B. Reynolds Mem. Park, 281 N.C. 48, 187 S.E. 2d 721 (1972).\nOver plaintiff\u2019s objection, Gray testified that he and Brown were in Moore\u2019s car \u201cmaybe twice\u201d when Moore had taken the curves on Rotary Drive. Later, it was determined that Brown was not present on the only occasion Gray had attempted to identify.\nG.S. 8-51 did not disqualify Gray from giving testimony otherwise competent concerning transactions and communications between Brown and Moore in Gray\u2019s presence on prior occasions. Assuming Gray\u2019s testimony was sufficiently definite to have probative value and was otherwise properly admitted in evidence, it was permissible for defendant to testify only with reference to transactions and communications referred to in Gray\u2019s testimony. It was determined that Gray\u2019s testimony was incorrect \u2014 since Brown was not present \u2014 with reference to the one occasion identified by Gray. Gray\u2019s testimony that \u201cmaybe\u201d there had been a different occasion when both Brown and Gray had been with Moore when Moore had taken, the curves, without any suggestion as to the time, place or circumstances of such an occasion, was insufficient to identify any specific occasion to which testimony by defendant could relate.\nThe extensive testimony of defendant concerning rides by Brown with Moore practically every Saturday, including rides on county roads as well as on Rotary Drive, when Moore had taken the curves, did not relate to transactions and communications involved in Gray\u2019s testimony and was incompetent under G.S. 8-51. It related to occasions when Gray was not present, entirely different from any occasion referred to in Gray\u2019s testimony. The testimony did not purport to corroborate Gray. The ruling that it be treated as corroborative rather than substantive evidence added nothing to its competency.\nUnquestionably, the admission of defendant\u2019s testimony, concerning numerous unidentified prior occasions when Brown was riding with him, seriously prejudiced plaintiff\u2019s case in that the thrust thereof was to cast Brown in the role of a willing participant in a dangerous venture in which the risks were known and voluntarily assumed by him. It seems probable and prejudicial impact of this erroneously admitted incompetent testimony played a material part in causing the jury to restrict plaintiff\u2019s recovery to the exact amount of the out-of-pocket expenses Brown\u2019s parents incurred on account of his death.\nThe court, in reviewing defendant\u2019s testimony, stated to the jury: \u201cHis [defendant\u2019s] testimony further tended to show that on previous occasions the deceased, Mike Brown, had ridden with the defendant on Rotary Drive, which is a curvy road, and also on a county road going to the defendant\u2019s brother-in-law\u2019s house, at which times the defendant had been driving his car at a high rate of speed.\u201d We apprehend that this tended to emphasize the prejudicial impact of the incompetent evidence.\nWe hold that plaintiff is entitled to a new trial because of prejudicial error in the admission of incompetent evidence over her objections. Hence, the decision of the Court of Appeals is reversed. The case is remanded to that court with direction that it be remanded to the Superior Court of Guilford County for trial de novo.\nReversed and remanded.\nJustices Copeland and Exum did not participate in the hearing or decision of this case.", "type": "majority", "author": "SHARP, Chief Justice." } ], "attorneys": [ "Floyd & Baker by Walter W. Baker, Jr., for plaintiff appellant.", "Henson & Elrod by Perry C. Henson and Joseph E. Elrod III, for defendant appellee." ], "corrections": "", "head_matter": "EVELYN B. BROWN, Administratrix of the Estate of MICHAEL RAY BROWN, Deceased v. EDWARD MICHAEL MOORE\nNo. 92\n(Filed 14 April 1975)\n1. Death \u00a7 7\u2014 wrongful death \u2014 damages \u2014 award for present monetary value not required\nIn awarding damages for wrongful death the jury is not ordinarily required as a matter of law to award damages for all or any of the items specified in G.S. 28-174(a), (b) and (c) for consideration in determining the present monetary value of decedent to the persons entitled to the damages recovered.\n2. Evidence \u00a7 11\u2014 dead man\u2019s statute \u2014 transactions and communications with decedent \u2014 opening door by offering testimony\nWhen plaintiff offered testimony in a wrongful death case relating to what happened during the evening of decedent\u2019s death from the time the witness, decedent and defendant got together until the wreck causing decedent\u2019s death, she thereby rendered competent testimony of defendant concerning the same transactions or communications but did not render competent testimony of defendant concerning what may have occurred between him and decedent on unrelated prior occasions.\n3. Evidence \u00a7 11\u2014 dead man\u2019s statute \u2014 testimony by third party \u2014 incompetent testimony by defendant\nIn an action to recover for the death of a pass eager in an automobile driven by defendant which failed to negotiate a curve while traveling at a high rate of speed, G.S. 8-51 did not disqualify a third party from giving testimony otherwise competent concerning transactions and communications between decedent and defendant in the presence of the witness on occasions prior to the accident in question, and it was permissible for defendant to testify with reference to the transactions and communications referred to in such witness\u2019s testimony; however, defendant\u2019s testimony that decedent had accompanied him on numerous prior unidentified occasions when he drove his car to determine the maximum speed at which it could take the curves did not relate to transactions and communications involved in such witness\u2019s testimony and was incompetent under G.S. 8-51.\nJustices Copeland and Exum did not participate in the hearing or decision of this case.\nOn certiorari to review the decision of the Court of Appeals reported in 22 N.C. App. 445, 206 S.E. 2d 794 (1974), which found \u201cno error\u201d in the trial before Long, at the 7 January 1974 Session of the Superior Court of Guilford County, High Point Division, docketed and argued as case No. 100 at the Fall Term 1974.\nThis action was instituted by the administratrix of the estate of Michael Ray Brown (Brown) to recover damages for the alleged wrongful death of her intestate.\nBrown, aged 17, died 18 August 1972 from injuries he sustained in a one-car wreck on N. C. Rural Paved Road 1763 in Davidson County, North Carolina, about 11:55 p.m. on that date. The wrecked car was a 1962 Chevrolet four-door sedan, owned and operated by defendant, Edward Michael Moore (Moore), aged 19. Brown and Terry Gray (Gray), aged 17, were guest passengers. Moore, Brown, and Gray were good friends.\nThe wreck occurred at a curve 1.8 miles south of the intersection of Westchester Drive and Burton Street Extension in High Point, North Carolina. Moore had turned left from West-chester and was driving south towards Thomasville. For the distance of \u201cabout .7 of a mile\u201d from the intersection to the Davidson County line, the speed limit was 35 miles per hour. South of the county line Burton became Rural Paved Road 1763. For a distance of \u201c1.1 mile\u201d from the county line to the curve where the wreck occurred, the speed limit was 55 miles per hour. The paved portion of the tar and gravel road was \u201c17 feet wide\u201d and the shoulder was \u201cabout 3 feet wide.\u201d There were two lanes, one for each direction of travel, but no lines on the road marked these lanes.\nEarlier in the evening of Friday, 18 August 1972, Moore, Brown, and Gray, along with Moe (Tommy) Bugg and Dan Bugg, went to the Midway Drive-In on the Old Thomasville Road. All of them left the Drive-In in Moe Bugg\u2019s car. Moe Bugg drove first to Moore\u2019s home. There Moore, Brown, and Gray got out of Moe Bugg\u2019s car and got into Moore\u2019s car. It was then \u201cjust about 15 minutes before the accident occurred.\u201d Moe Bugg drove ahead to the J & M Curb Market and got some gas. Moore followed him to the Curb Market. As Moe Bugg left the Curb Market, traveling on Westchester Drive, Moore \u201chollered out the window at him and told him not to go down Burton Street.\u201d However, Moe Bugg ignored this instruction, proceeded to the intersection, and made a left turn into Burton Street. Moore stopped at the intersection because the \u201clight caught [his] car.\u201d When the light changed, Moore turned left into Burton Street. The occupants of the Moore car could see the tailights of the Moe Bugg car until to crossed the Davidson County line and \u201cspeeded up and took off.\u201d\nTrooper J. Scott Irving of the State Highway Patrol arrived at the scene at 11:59 p.m., shortly after the wreck occurred. The investigation at the scene disclosed the following: The road curved sharply to the left for the southbound motorist. Moore\u2019s car was \u201cprobably about 50 feet off the road\u201d to the right. It had struck a tree and come to rest beside a power pole and guy wire. It was resting \u201cjust a little bit past the center of the curve.\u201d Tire marks, which began on the road and continued to where the car struck the tree, measured 214 feet, \u201cthe largest portion ... on the dirt.\u201d There was extensive damage to the right front side of the door, \u201cthe front end being twisted to the right.\u201d The right front door came completely off and was \u201cjust crumbled up.\u201d Brown was on the right hand side of the car. The lower half of his body was pinned in the car; the upper part was \u201changing out of the car.\u201d Within a minute or two, Brown, Moore, and Gray were taken by ambulance to a hospital in High Point. Irving had no conversation with Moore or Gray at the scene of the wreck.\nThe night was clear. The road was dry and practically level both north and south of the curve where the wreck occurred. The point at which Moore went off the road was in the first or north portion of an \u201cS\u201d curve.\nIrving testified there were five curves \u201cfrom the county line to the scene of the wreck\u201d; that a couple of them were \u201cfairly sharp\u201d but not as sharp as the curve where the wreck occurred; and that the road was \u201ca narrow winding road.\u201d\nIrving saw Moore (defendant) in the emergency room of the hospital about 1:30 a.m. On that occasion, Irving\u2019s only inquiry concerned the identity of the driver of the wrecked car. Moore \u201cpromptly told\u201d Irving that he was driving. Moore was crying, was \u201cvery emotionally upset,\u201d and said \u201chis best friend was dead,\u201d and that \u201che didn\u2019t care what happened to him.\u201d Moore was admitted to the hospital and remained there until the following Monday.\nAt the hospital, on Sunday afternoon, Irving talked with Moore again. According to Irving, statements then made by Moore included the following: When they started out, all three were in the front seat. Just before the wreck Gray got out of the front, got into the back and lay down on the floorboard in the back seat. They had been talking \u201cabout the curves on Burton Street.\u201d He did not know exactly how fast he was driving but was going \u201cless than a hundred.\u201d He had drunk \u201ca couple of beers.\u201d\nIrving testified that he had detected a slight odor of alcohol on Moore\u2019s breath when he first saw him in the emergency room but he did not think he was under the influence of any intoxicant. He further testified that on 6 October 1972 Moore had \u201centered a guilty plea to exceeding a safe speed arising from the wreck.\u201d\nGray testified that he had had nothing to drink during the entire evening but that both Moore and Brown had drunk beer earlier. He further testified that Moore was not under the influence of any intoxicant. There was evidence that a sample of blood taken from Brown after his death \u201ccontained .05% of alcohol by weight.\u201d There was no testimony that Brown was under the influence of any intoxicant.\nGray testified that Moore speeded up when he got to the county line, \u201cgradually kept on picking up speed,\u201d and began breaking the speed limit when it changed from 35 to 55. Gray further testified: \u201cI had no notice prior to the time he started into the 55-mile zone on Burton Street that he was intending to speed through those curves out there. There had been no discussion between me and Mr. Moore and anybody else in that vehicle prior to the time we got into it about speeding on those curves on Burton Street Extension. Prior to the time he started speeding where the speed limit changed, I had no reason to fear riding with him. At the point where he did start speeding, I asked him to slow down several times. He didn\u2019t say anything. He didn\u2019t slow down. As we started into the curve where the wreck happened, I told him, \u2018Since you are not going to slow down, I am going to get in the back\u2019; so I started to get in the back and he told me he didn\u2019t blame me for getting in the back so I went ahead and got in the back seat. I mentioned the curve to him prior to approaching the curve and getting in the back seat. I told him there was a bad curve coming up and we might not make it. While I was climbing over the back seat and going into that curve, Mike Brown told Mike [Moore] to hold the car inside and work his way out in the curve. Mike Brown did not say anything else while we were on Burton Street Extension before that time. From the time we entered the 55 mile per hour zone to the time the car left the road in that bad curve, Mike Moore did not stop the car at any time. No one in the car had any opportunity to leave the car. Neither I, nor Mike Brown, did anything to encourage Mike Moore to speed out there.\u201d\nTestimony relating to defendant\u2019s driving on occasions prior to the evening of 18 August 1972 will be set forth in the opinion.\nTestimony pertinent to the issue of damages includes the following:\nAt the time of Brown\u2019s death, his father was 62 and his mother over 48. His father, a 30-year employee of Burlington Industries, received take-home pay of between $170 and $175 each two weeks. His mother had been unable \u201cto go back in the mill\u201d since her operation for a ruptured disc in April of 1972. She sold cosmetics \u201cto help out a little.\u201d During the preceding five years, the parents had been buying a home. Their house payment (V.A, Loan) was $69.50 per month.\nBrown had always lived in the home of his parents. At the time of his death, a brother, aged 22, and a sister, aged 10, also lived with the parents. A married brother, aged 28, had children of his own and lived elsewhere.\nBrown quit school after finishing the seventh grade. \u201cHe was two years behind other children of his age.\u201d He worked 40 hours a week for the Albert Roofing Company at $2 per hour from 14 December 1970 until 27 July 1972, as a sheet metal helper. His employer described him as \u201ca very good boy, a good worker.\u201d He was dependable, a sober boy, as far as he knew. He never came around him drinking.\nBrown quit his job with Albert Roofing Company because he \u201chad a little falling-out with the mechanic,\u201d and applied for a job with Lane Upholstery Company. On the Monday after his death, this company sought to notify him that his application had been accepted. He had been of out work two or three weeks before his death. The job with Lane Upholstery Company would have paid him $2 to $2.10 per hour for approximately 40 to 45 hours per week during a \u201ctraining type program.\u201d A properly trained upholsterer could expect to earn from $4 to $6.50 per hour.\nWhile employed, Brown bought his own clothes and gave his parents \u201cabout $25.00 each two weeks,\u201d which was \u201cpractically more or less just to feed him.\u201d He took out three insurance policies: (1) a $9,000 life policy in which his mother was named beneficiary, (2) a $1,000 life policy in which his father was named beneficiary, and (3) a disability policy. At times his mother paid some of the premiums.\nAll witnesses described Brown as \u201ca fairly intelligent boy,\u201d and \u201ca good boy.\u201d He got along well with other children, and nobody in the community had had any trouble with him. Brown\u2019s mother, the plaintiff, testified: \u201cHe was fairly intelligent. He conducted himself well and had a nice personality. Most everybody liked him and he was just wonderful to me and his father. He was good to do things around the house.\u201d He had helped his father \u201cput on the roof of an outbuilding.\u201d He had painted the back porch; he mowed the grass and ran errands. He waited on and helped his mother during an illness.\nBrown was a \u201cstrong and husky boy and had a chest on him like Tarzan.\u201d His health was good.\nBrown had bought \u201ca straight gear\u201d 1955 Chevrolet, which stayed in the driveway of his parents\u2019 home. It had not been driven out \u201con the open road\u201d because his mother \u201cwould not let him.\u201d Brown did not have an operator\u2019s license. He had not taken a \u201cdriver\u2019s training\u201d course and therefore could not get a driver\u2019s license until his 18th birthday.\nBrown did not have any money \u201cto report in the Estate.\u201d On the night of his death \u201chis father gave him a couple of dollars.\u201d\nThe issues submitted and the jury's answers are as follows:\n\u201c1. Was the plaintiff\u2019s intestate, Michael Ray Brown, injured by the negligence of the defendant, Edward Michael Moore?\n\u201cAnswer: Yes\n\u201c2. Did Michael Ray Brown, by his own negligence, contribute to his injury?\n\u201cAnswer: Yes\n\u201c3. Was the plaintiff\u2019s intestate, Michael Ray Brown, injured by the wilful and wanton negligence of the defendant, Edward Michael Moore?\n\u201cAnswer: Yes\n\u201c4. What amount, if any, should the plaintiff recover of the defendant for compensatory damages?\n\u201cAnswer: $2,756.84\n\u201c5. What amount, if any, should the plaintiff recover of the defendant for punitive damages?\n\u201cAnswer: None.\u201d\nWhen the jury first submitted its verdict, the answer to the fourth issue was worded as follows: \u201cExpenses for funeral, burial plot and ambulance, as cited by the Court.\u201d The judge instructed the jury they would have to answer the issue in monetary terms. Counsel then stipulated the amount of these items and agreed that the jury might take the bills into the jury room for use in arriving at a monetary answer to the fourth issue. In the verdict as later returned, the fourth issue was answered $2,756.84,\u201d the exact total of these bills.\nPlaintiff moved to set the verdict aside and for a new trial. After denying this motion, the court entered judgment that the plaintiff recover from the defendant the sum of $2,756.84 plus costs. Upon plaintiff\u2019s appeal therefrom, the Court of Appeals found \u201cNo Error.\u201d Plaintiff\u2019s petition for certiorari was allowed.\nFloyd & Baker by Walter W. Baker, Jr., for plaintiff appellant.\nHenson & Elrod by Perry C. Henson and Joseph E. Elrod III, for defendant appellee." }, "file_name": "0664-01", "first_page_order": 684, "last_page_order": 701 }