Starnes v. . Tyson

38 S.E.2d 211, 226 N.C. 395, 1946 N.C. LEXIS 462

• Court: Supreme Court of North Carolina
• Decided: May 22, 1946
• Status: Published

Opinion

Stagy, C. J.

In the Superior Court, on appeal by the defendant from the Municipal Court of the City of High Point for errors assigned in matters of law, all of the exceptions were overruled, save and except Nos. 14 and 17, which were sustained, and the cause was thereupon remanded to the Municipal Court for a new trial. Jenkins v. Castelloe, 208 N. C., 406, 181 S. E., 266. From a procedural standpoint, the case apparently parallels Brown v. Lipe, 210 N. C., 199, 185 S. E., 681; Trust Co. v. Greyhound Lines, 210 N. C., 293, 186 S. E., 320; Williams v. Charles Stores Co., 209 N. C., 591, 184 S. E., 496.

I. The Plaintiff’s Appeal.

By his appeal to this Court, the plaintiff challenges the correctness of the judgment of the Superior Court in sustaining defendant’s exceptions Nos. 14 and 17, and remanding the cause for another hearing. In these two exceptions, it is pointed out that the trial court made definitive and conclusive the expectancy of the plaintiff’s intestate as 48.1 years. The gravamen of exception 14 is that the court said to the jury “there has been introduced in evidence here a portion of the North Carolina statute which we call the mortuary tables, and that provides . . . that a young-man eleven years old would live 48.1 years more.” And in exception 17, the court seems to have been a little more specific and direct: “His expectancy is 48.1 years; that means, being eleven years old, he had, according to the mortuary table, and according to his expectancy, 48.1 years to live.”

The Superior Court was constrained to hold these expressions for error under authority of what was said in Sebastian v. Motor Lines, 213 N. C., 770, 197 S. E., 539; Hancock v. Wilson, 211 N. C., 129, 189 S. E., 631; Trust Co. v. Greyhound Lines, 210 N. C., 293, 186 S. E., 320; Hubbard v. R. R., 203 N. C., 675, 166 S. E., 802; Young v. Wood, 196 N. C., 435, 146 S. E., 70; Taylor v. Const. Co., 193 N. C., 775, 138 S. E., 129; Odom v. Canfield Lumber Co., 173 N. C., 134, 91 S. E., 716; Sledge v. Lumber Co., 140 N. C., 459, 53 S. E., 295. These oases support the judgment of the Superior Court. The mortuary table is competent as evidence, but only as evidence, which is to be considered with the “other evidence as to the health, constitution, and habits” of the deceased. G. S., 8-46; Russell v. Steamboat Co., 126 N. C., 961, 36 S. E., 191. For the court to make the mortuary table definitive and conclusive not only violates the evidence rule, but also the prohibition against expression of opinion “whether a fact is fully or sufficiently proven.” G. S., 1-180; Cogdill v. Hardwood Co., 194 N. C., 745, 140 S. E., 732.

Finally, the plaintiff asks that the new trial, if sustained, be limited to the issue of damages. It does not appear that such request was lodged below; or that the judgment is challenged on this ground. The order for a new trial was made by the Superior Court. It did not originate here. The matter was entirely discretionary with the court making the order. Lumber Co. v. Branch, 158 N. C., 251, 73 S. E., 164.

No error has been made to appear on plaintiff’s appeal.

II. The Dependant’s Appeal

The defendant having been granted a new trial in the Superior Court on two of his exceptions, is not entitled to have the rulings upon his other exceptions reviewed unless and until reversible error has been made to appear on plaintiff’s appeal. Trust Co. v. Greyhound Lines, supra; Williams v. Charles Stores Co., supra; Leiterman v. Miller, 209 N. C., 709, 184 S. E., 525. So long as the judgment of the Superior Court is in his favor, denies him no substantial right, and remains undisturbed, it would seem that the defendant could hardly be called the “party aggrieved” within the meaning of the appeal statute. G. S., 1-271; Yadkin Co. v. High Point, 219 N. C., 94, 13 S. E. (2d), 71. “A ‘party aggrieved’ is one whose right has been directly and injuriously affected by the action of the court.” McIntosh on Procedure, 767. See Robinson v. McAlhaney, 216 N. C., 674, 6 S. E. (2d), 517; S. c., 214 N. C., 263, 199 S. E., 26, and 214 N. C., 180, 198 S. E., 647.

The rulings in the Superior Court on defendant’s remaining 23 exceptions, which were there overruled, might become hurtful should error be found here in the rulings on the exceptions which were there sustained. But prior to the happening of this event, the defendant may not insist upon further hearing in this Court on his other exceptions. This would amount to a second appellate review on these exceptions on appeal from an order granting him a new trial, which he neither challenges nor wants vacated. McCullock v. R. R., 146 N. C., 316 (defendant’s appeal at page 320), 59 S. E., 882; Pritchard v. Spring Co., 151 N. C., 249, 65 S. E., 968; Smith v. Miller, 155 N. C., 242, 71 S. E., 353.

Plaintiff’s appeal, Affirmed.

Defendant’s appeal, Dismissed.