Wachovia Bank & Trust Co. v. Atlantic Greyhound Lines

186 S.E. 320, 210 N.C. 293, 1936 N.C. LEXIS 89

• Court: Supreme Court of North Carolina
• Decided: June 15, 1936
• Status: Published

Opinion

Stacy, C. J.

The trial court instructed the jury with respect to the mortuary table as follows: “So the court instructs you, by referring to the mortuary table of the statute, that the expectancy of a person 59 years of age would be fourteen and sevem-tenths years.” This was assigned as error, and the Superior Court sustained the exception. The ruling is supported by the decisions in Taylor v. Construction Co., 193 N. C., 775, 138 S. E., 129, and Hubbard v. R. R., 203 N. C., 675, 166 S. E., 802.

The use of the mortuary table seems quite easily misunderstood. It is competent as evidence, but only “as evidence, with other evidence as to the health, constitution, and habits” of such person. C. S., 1790; Young v. Wood, 196 N. C., 435, 146 S. E., 70. For the court to make it definitive violates not only the evidence rule, but also the prohibition against exj)ression of opinion as to “whether a fact is fully or sufficiently proven.” C. S., 564; Cogdill v. Hardwood Co., 194 N. C., 745, 140 S. E., 732.

Rulings upon other exceptions could only be anticipatory, perhaps supererogatory, as they may not arise on another bearing, hence, we affirm the judgment without presently adverting to them. Pemberton v. Greensboro, 208 N. C., 466, 181 S. E., 258.

The defendants are not entitled to be beard on their appeal unless and until reversible error has been made to appear on plaintiff’s appeal. Williams v. Stores Co., 209 N. C., 591; Letterman v. Miller, 209 N. C., 709.

Plaintiff’s appeal, Affirmed

Defendants’ appeal, Dismissed.