Caudle v. Swanson

• Decision Date: 30 April 1958
• Docket Number: No. 378,378
• Citation: 103 S.E.2d 357,248 N.C. 249
• Parties: R. T. CAUDLE v. Herbert E. SWANSON and wife, Elizabeth L. Swanson.
• Court: North Carolina Supreme Court

Page 357

103 S.E.2d 357

248 N.C. 249

R. T. CAUDLE v. Herbert E. SWANSON and wife, Elizabeth L. Swanson.

No. 378

Supreme Court of North Carolina.

April 30, 1958

Clyde C. Randolph, Jr., Winston-Salem, for plaintiff, appellant.

Eugene H. Phillips, Winston-Salem, for defendants, appellees.

PARKER, Justice.

There is no exception to the issues submitted to the jury. The jury found by their answer to the first issue that the plaintiff had no contract as contended for by him to build the defendants' home. The trial court in its charge to the jury on the second issue, which is what amount, if any, is the plaintiff entitled to recover of the defendants, declared and explained the law arising on the evidence if the jury found that the contract between the parties was as contended for by the plaintiff, did likewise if the jury found that the contract between the parties was as contended for by the defendants, and then instructed the jury that if they found 'by the greater weight of the evidence that there was no meeting of the minds on either of the two types of contract alleged, why then Mr. Caudle would be entitled to an amount which you find it was reasonably worth to build such a house as this one about which this suit was brought.' To this part of the charge plaintiff has no exception.

Edward Shelton, a witness for the defendants, testified in substance as follows: For ten years he has been continuously engaged in Forsyth County in constructing homes of a value between $12,000 and $18,000. During this time it has been necessary for him to keep informed as to the costs of materials and labor in building various types of homes, and he is familiar with the costs of such construction for the year 1956. He saw the defendants' home while it was being built, and did some masonry work on it. He saw and went through their home after it was completed. At this point in his testimony the trial court held that he was an expert in the construction of homes of a value less than $20,000. He was then asked if he had an opinion satisfactory to himself, based upon his examination of the defendants' home, and upon his knowledge and experience in building matters, as to the fair and reasonable cost of constructing the defendants' home, including everything that is in it, exclusive of the fee to the builder, during the year 1956. Over the objection and exception of the plaintiff, he was permitted to answer that he had such an opinion. He was then asked what his opinion was, and over the objection and exception of the plaintiff he was permitted to answer he thought it could be built for $13,000 to $14,000 construction costs. Plaintiff assigns as error the admission of this evidence over his objection and exception.

Paul Flynt, another witness for the defendants, testified that he had been a building contractor for 8 1/2 years, that in 1956 he was primarily engaged in building homes in Forsyth County, was acquainted with the costs of labor and materials going into home construction during that year, and had examined the defendants' home and had looked at the plans. The court held that he was an expert in the construction of residential dwellings. He was then asked if he had an opinion satisfactory to himself, based upon his examination of the defendants' home, and upon his knowledge and experience as a builder, as to the fair and reasonable cost of constructing the home in its entirety in the year 1956, exclusive of any fee to the builder. Over the objection and exception of the plaintiff he was permitted to answer that he had such an opinion. He was then asked what his opinion was, and over the objection and exception of plaintiff he was permitted to answer $14,000 to $14,500, exclusive of any fees or profits to the builder. Plaintiff assigns as error the admission of this evidence over his objection and exception.

Plaintiff excepted to the ruling of the court holding that Edward Shelton is an expert in the construction of homes of a value less than $20,000. However, he states in his brief that he has abandoned his assignment of error based on the exception to such ruling. Plaintiff did not except to the court's ruling holding that Paul Flynt is an expert in the construction of residential dwellings.

'A witness experienced in a building trade, and who is shown to have had sufficient opportunity for observation, and to be adequately qualified to form a judgment as to the matter of which he undertakes to speak, may testify as to his inferences or judgment as to matters in his particular department. The statement may relate to various matters connected with the construction, condition, or repair of buildings, such as the cost of a house or other building * * *.' 32 C.J.S. Evidence § 546 c, pp. 326-327. See Ibid., § 477, p. 129.

This is said in 20 Am.Jur., Evidence, Sec. 833: 'The determination of the cost of certain repairs or construction is necessarily a matter of estimate by a person qualified in the class of work in question and is consequently a proper subject of opinion testimony, when given by properly qualified witnesses. Builders, contractors, or architects are competent witnesses on questions of the cost of construction or repair of buildings.'

In Younce v. Broad River Lumber Co., 155 N.C. 239, 71 S.E. 329, 330, plaintiff's alleged damages were measured by him between the contract price of sawing the timber into lumber, and what he contended was the cost of doing so. The defendant offered, as a witness on the cost of doing the work, a man who had 18 or 20 years of experience in the sawmill business, and was so engaged in 1906 and 1907, the year in which the breach of agreement is alleged to have occurred, and had manufactured lumber in some smooth and some rough land in Rutherford County. The trial court excluded this evidence. In awarding a new trial this court said: 'We think his honor erred in excluding the evidence. It is true the witness had never been on this particular land, but he had expert knowledge of the cost of sawing and manufacturing lumber upon both smooth and mountainous lands in Rutherford county. It was proper for him to state the average cost of sawing and manufacturing lumber as a fact in his experience to be considered by the jury and given such weight as in their opinion it was entitled to.'

In Sikes v. Paine, 32 N.C. 280, the Court said: 'On questions of science, or trade, and others of a similar character, persons of skill are permitted to give their opinions in evidence * * *. In all these cases of science and skill the opinion of the witness is admitted as evidence, upon the ground that he is conversant with the business to which he is called to testify, and has, therefore, peculiar knowledge concerning it.'

In Denson v. Acker, 201 Ala. 300, 78 So. 76, 78, plaintiff sued the defendant for the price or value of repairs done upon defendant's house. Defendant denied that there had been any agreement as to the price of the work to be done, and contended that he had paid in part and in other part tendered to plaintiff the full value of the repairs. From a judgment for plaintiff, the defendant appealed. In its opinion the Court said: 'In view of defendant's contention that he had no express contract with plaintiff in regard to the work done, the witness Mann, a contractor of long experience and acquainted with values in his line in the neighborhood where the work was done, was competent to give his opinion as to the reasonable value of the work and material contributed by plaintiff to the repair of defendant's house, and this, in substance, is what the witness was allowed to testify.'

In Borough of Atglen v. Pennsylvania Public Utility Comm., 174 Pa.Super. 149, 100 A.2d 138, 140, it is said: 'The testimony of properly qualified experts as to the probable cost of construction is competent evidence, and, if believed, may afford substantial basis for a judgment.'

The evidence shows that Edward Shelton and Paul Flynt had special knowledge of the cost of materials and labor for the construction of a home of the value of defendants' home in Forsyth County during the year 1956. Their knowledge of the cost of labor in constructing a home must necessarily be based upon the number of hours of labor that would be required to build such a home. This was a subject outside the ordinary realm of human experience. The only practical method of showing the cost of construction of defendants' home was by means of opinion evidence by persons of specialized knowledge or experience in that particular business. Both witnesses had seen and were familiar with defendants' home after it was completed. Their opinion as to the cost of its construction was based on facts known and observed by them. They were not answering hypothetical questions. The court properly allowed them to express their opinion as to the cost of construction of defendants' home to aid the jury in weighing and considering the evidence in the final determination of the case, because they possessed on this subject a superior knowledge and experience to co-ordinate and weigh the facts within their own knowledge so as to draw the correct and proper opinion therefrom as to the cost of construction, as one without such special knowledge could not.

Plaintiff contends this evidence should have been rejected because it invades the province of the jury. This Court in Patrick v. Treadwell, 222 N.C. 1, 21 S.E.2d 818, 822, quotes this language from 20 Am. Jur., p. 653: "Opinion testimony of experts is only admissible in cases of necessity, where the proper understanding of facts in issue requires some explanation of those facts or some deduction therefrom by persons who have scientific or specialized knowledge or experience. Such testimony does, in a broad general sense, encroach upon the province of the jury; and when it relates to matters directly in issue, it should not be admitted unless its admission is demanded by the necessities of the individual...