Davis v. Ludlum
| Decision Date | 22 November 1961 |
| Docket Number | No. 165,165 |
| Citation | 122 S.E.2d 500,255 N.C. 663 |
| Court | North Carolina Supreme Court |
| Parties | C. W. DAVIS and wife, Mary G. Davis v. H. B. LUDLUM, Doing business as H. B. Ludlum & Sons, The City of Wilmington, Katherine G. Rogers, J. V. Tomberlin, Doing business as J. V. Tomberlin Construction Company. |
Isaac C. Wright and John J. Burney, Jr., Wilmington, for plaintiff appellant.
C. D. Hogue, Jr. and Yow & Yow, Wilmington, for the City of Wilmington.
Elbert A. Brown, Wilmington, for H. B. Ludlum.
Solomon B. Sternberger, Wilmington, for J. V. Tomberlin.
Plaintiff's assignments of error raise these questions: (1) Are findings of fact 9 and 10 repugnant, thereby making it impossible to base a judgment on the facts found? (2) Was there prejudicial error in the admission of evidence over plaintiff's objections?
A judgment cannot be based on inconsistent and repugnant factual conclusions. It matters not whether the facts are determined by jury verdict or made by the court acting as a jury. 89 C.J.S. Trial § 636, p. 468. When a judgment has been entered on seemingly inconsistent findings of fact, it is the duty of the reviewing court to reconcile the findings and uphold the judgment if practicable. Bradham v. Robinson, 236 N.C. 589, 73 S.E.2d 555. To ascertain if in fact there are conflicting findings, it is the duty of the court to examine the pleadings, the evidence, and the charge, if there be a charge. Wynne v. Allen, 245 N.C. 421, 96 S.E.2d 422.
The complaint states a cause of action based on the way the Rogers building was removed, not the fact of removal. Plaintiff alleges: 'Instead of taking precaution to prevent injury and damages to the wall and building of the plaintiffs, the defendants used great force and violence * * * caused the roof to leak, knocked great holes in the wall of plaintiffs' building, causing same to crack in many places * * *' The complaint states a cause of action for injuries negligently inflicted. The case was tried on that theory. Plaintiff, in stating the questions for consideration by this Court, speaks of 'a negligent damage to a brick business building.' Finding 8 establishes the negligence of defendants.
A review of the evidence discloses sharp conflict with respect to the extent of the damage done to the roof and the wall by the demolition of the Rogers building. Particularly was this true with respect to two cracks running from the top to the bottom of plaintiff's wall. Did these cracks exist before the demolition of the Rogers building or were they caused by the work then done? Defendants maintain they were not responsible for the weakened condition of plaintiff's wall due to the cracks, because these cracks were caused by settling long prior to the construction of the Rogers building and were in no way related to the removal of that building. A witness for plaintiff testified: 'I saw two big cracks from the top to the bottom, and this was before the Rogers building was torn down, and they have been there as long as I have been observing the Davis building.' The witness had previously testified that he knew the building many years prior to the demolition of the Rogers building. This witness also testified: 'Until the south wall of the Rogers property was torn down it was impossible to have seen the north wall of the Davis property, except from the inside, but, after it was torn away, you could see the condition of the north wall of the Davis property, but not until then.'
Defendants would not be liable in damages because the removal of the Rogers building disclosed the decrepit condition of the Davis wall, nor would they be liable for a differing and changed use of the Rogers property so long as that use was a proper and legal use.
The ninth finding is primarily based on the testimony of plaintiff's witness Johnson. He testified that the market value of plaintiff's property before the removal of the Rogers building was $32,000 and $20,500 immediately following the removal. He did not say this diminution in value was due to any negligence of defendants. He testified:
When viewed in the light of the evidence, it is, we think, apparent that the court in finding 9 was dealing with all factors causing a diminution in value of plaintiff's property,...
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...fact, it is the duty of the reviewing court to reconcile the findings and uphold the judgment if practicable." Davis v. Ludlum , 255 N.C. 663, 666, 122 S.E.2d 500, 502 (1961) (citing Bradham v. Robinson , 236 N.C. 589, 593, 73 S.E.2d 555, 558 (1952) ).5 The term "OEM" means that the applica......
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Lawing v. Lawing, 8526DC993
...reviewing findings of fact is to reconcile apparently inconsistent findings and uphold the judgment when practicable. Davis v. Ludlum, 255 N.C. 663, 122 S.E.2d 500 (1961); Spencer v. Spencer, 70 N.C.App. 159, 319 S.E.2d 636 (1984). We presume the correctness of the judgment. We can readily ......
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