The opinion
Judge John
dissenting.
I respectfully dissent. While I agree the amounts indicated on the jury verdict sheet for funeral and ambulance bills constitute sur-plusage, I believe the majority misapprehends the purport of N.C. Gen. Stat. § 28A-18-2(b)(6) (1984 & Cum. Supp. 1994) as well as the Brown and Bowen decisions upon which it relies.
No right of action for wrongful death existed at common law, and the claim is entirely statutory, Armentrout v. Hughes, 247 N.C. 631, *348 632 , 101 S.E.2d 793, 794 (1958), the statute defining the bases upon which damages may be recovered. Stetson v. Easterling, 274 N.C. 152, 155 , 161 S.E.2d 531, 533 (1968) (citation omitted). Prior to amendment in 1969, our wrongful death statute contained no provision for nominal damages. Armentrout, 247 N.C. at 633-34 , 101 S.E.2d at 795 . However, an amendment enacted that year, retained in the version of the statute' in effect at trial of the matter sub judice, G.S. § 28A-18-2(b)(6) (1984), allows recovery of nominal damages “when the jury so finds.” G.S. § 28-174(a)(6) (1969).
G.S. § 28A-18-2(b) reads as follows:
Damages recoverable for death by wrongful act include:
(1) Expenses for care, treatment and hospitalization . . . ;
(2) Compensation for pain and suffering . . . ;
(3) The reasonable funeral expenses . . . ;
(4) The present monetary value of the decedent. . . ;
(5) [Pjunitive damages . . . ;
(6) Nominal damages when the jury so finds.
(emphasis added).
“[W]here a statute is intelligible without any additional words, no additional words may be supplied.” State v. Camp, 286 N.C. 148, 151 , 209 S.E.2d 754, 756 (1974) (citation omitted). Further, when “the section dealing with a specific matter is clear and understandable on its face, it requires no construction,” Utilities Comm. v. Electric Membership Corp., 275 N.C. 250, 260 , 166 S.E.2d 663, 670 (1969) (citations omitted), “and the courts must give it its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein.” Camp, 286 N.C. at 152 , 209 S.E.2d at 756 (citation omitted). Lastly, it is the duty of this Court to apply a valid statute as written. Peele v. Finch, 284 N.C. 375, 382 , 200 S.E.2d 635, 640 (1973) (citation omitted).
It would “grossly underestimate [] the powers of comprehension possessed by ‘[persons] of common intelligence,’ ” State v. Wiggins, 272 N.C. 147, 153 , 158 S.E.2d 37, 42 (1967), cert. denied, 390 U.S. 1028 , 20 L. Ed. 2d 285 (1968), to assert the presence of ambiguity or lack of clarity in the statutory phrase “when the jury so finds.” The words thus must be accorded their plain meaning without judicial interpola *349 tion of explanatory phraseology not contained within the statute. Camp, 286 N.C. at 152 , 209 S.E.2d at 756 .
Additionally, the “doctrine of the last antecedent [requires that] relative and qualifying words, phrases, and clauses ordinarily ... be applied to the word or phrase immediately preceding and, unless the context indicates a contrary intent, are not to be construed as extending to or including others more remote.” HCA Crossroads Residential Ctrs. v. N.C. Dept. of Human Res., 327 N.C. 573, 578 , 398 S.E.2d 466, 469 (1990) (citations omitted). Under this doctrine, and indeed under any fair reading of the statute, there is absolutely no provision in the section cited above to which the phrase “when the jury so finds” can be said to refer other than to the words “nominal damages” which immediately precede it.
Application of the foregoing statutory construction principles to the 1969 amendment of G.S. § 28A-18-2(b) leads, I respectfully suggest, indisputably to the conclusion that the award of nominal damages in actions for wrongful death has been limited by our General Assembly to those circumstances when the jury in its discretion elects to make such an award. In other words, as a result of the legislative inclusion of subsection (6) to the statute, nominal damages in a wrongful death action “may ... be recovered if the jury finds that the decedent’s death was caused by the defendant’s wrongful act but fails to find that such death caused pecuniary loss.” Bowen v. Rental Co., 283 N.C. 395, 418 , 196 S.E.2d 789, 804 (1973) (emphasis added).
Despite use of the permissive “may” in the Bowen decision, see In re Hardy, 294 N.C. 90, 97 , 240 S.E.2d 367, 372 (1978) (use of “may” in statute ordinarily means provisions are to be construed as permissive and not mandatory) (citations omitted), the majority holds recovery of nominal damages is mandatory upon determination of fault in the absence of a finding of pecuniary loss. Brown v. Moore, 286 N.C. 664 , 213 S.E.2d 342 (1975), is cited as support for the holding. In that decision, our Supreme Court wrote as follows:
[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 “[n]ominal damages when the jury so finds. ” Permission is granted; no command is given. . . . We 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 [the statute].
*350 Id. at 673-74 , 213 S.E.2d at 349 (emphasis added).
Contrary to the majority holding, therefore, both the specific language of the statute (the “wisdom[] or expediency” of which are not our concern but that of the legislative branch of government, Camp, 286 N.C. at 153 , 209 S.E.2d at 757 ) and the interpretive holding of our Supreme Court (by which we are bound, see Eaves v. Universal Underwriters Group, 107 N.C. App. 595, 600 , 421 S.E.2d 191, 194 , disc. review denied, 333 N.C. 167 , 424 S.E.2d 908 (1992)) grant “permission” to the jury to award nominal damages following its determination of no pecuniary loss, but do not “command” such an award as a matter of law. Hawkins, cited by the majority, involved a common law assault and battery claim not established by statute, and is thus inapposite.
Moreover, had the General Assembly intended for the general principle enunciated in Hawkins to prevail, the phrase “when the jury so finds” simply would not have been included. See State v. White, 101 N.C. App. 593, 605 , 401 S.E.2d 106, 113 , disc. review denied and appeal dismissed, 329 N.C. 275 , 407 S.E.2d 852 (1991) (“The legislature is presumed to have intended a purpose for each sentence and word in a particular statute, and a statute is not to be construed in a way which makes any portion of it ineffective or redundant.”) (citation omitted).
I note the trial court, following the N.C. Pattern Jury Instructions, instructed the jury that if it answered the first two issues in favor of plaintiff, “then plaintiff would be entitled under the law ... to at least nominal damages without proof of actual damages.” N.C.P.I., Civ. 106.75. In view of the statutory provision noted above and the holding of our Supreme Court in Brown , I would hold the pattern instruction is erroneous as applied to wrongful death actions generally. However, the error is harmless in the case sub judice given the jury’s obvious disregard of the instruction and subsequent award to plaintiff of “$0.00.” See State v. Bryant, 283 N.C. 227, 234 , 195 S.E.2d 509, 513 (1973) (conceding “arguendo that the charge was technically erroneous, ... it was harmless error . . . .”).
Finally, the jury’s refusal to grant nominal damages in any event would not constitute reversible error. See Marisco v. Adams, 47 N.C. App. 196, 198 , 266 S.E.2d 696, 698 (1980) (failure to award nominal damages not reversible error because nominal damages are a trivial sum “awarded in recognition of a technical injury”) (citations omitted).
In view of all the above, I vote no error.