Faison v. Cribb

85 S.E.2d 139 (1954)

241 N.C. 303

James H. FAISON, Sr., v. John Wesley CRIBB and Robert Batts.

No. 597.

Supreme Court of North Carolina.

December 15, 1954.

*140 McClelland & Burney and Lonnie B. Williams, Wilmington, for appellant.

Yow and Yow, W. P. Burkhimer, Wilmington, for appellee.

JOHNSON, Justice.

On the issue of damages the court charged that the plaintiff was entitled to recover in one lump sum for all injuries, past, present, and prospective, without instructing the jury that the amount awarded should be based upon the present cash value or present worth of the future losses.

The charge as given is similar to that in Lamont v. Highsmith Hospital, 206 N.C. 111, 173 S.E. 46. In that case this Court in awarding a new trial said: "This charge is defective in that it fails to limit plaintiff's recovery for future losses to the present cash value or present worth of such losses." See also Daughtry v. Cline, 224 N.C. 381, 30 S.E.2d 322, 154 A.L.R. 789; Annotations: 77 A.L.R. 1439, p. 1446; 154 A.L.R. 796, p. 799.

In the case at hand the plaintiff's allegations and the theory of the trial disclose that he was relying upon future damages as a substantial part of his recovery. This being so, we are constrained to the view that the inadvertence of the able judge who presided below in failing to apply the doctrine of the Lamont case must be treated as prejudicial error. See concurring opinion of Barnhill, J., now C. J., in Daughtry v. Cline, supra, 224 N.C. 381, bottom page 386, 30 S.E.2d 322, p. 324.

We refrain from discussing the other assignments of error since the questions presented may not arise on retrial.

New trial.