Lawrence v. Reliance Ins. Co., 769DC718

• Decision Date: 02 March 1977
• Docket Number: No. 769DC718,769DC718
• Citation: 32 N.C.App. 414,232 S.E.2d 462
• Court: North Carolina Court of Appeals
• Parties: Glen Dolen LAWRENCE, t/a Lawrence Nursery v. RELIANCE INSURANCE COMPANY.

Page 462

232 S.E.2d 462

32 N.C.App. 414

Glen Dolen LAWRENCE, t/a Lawrence Nursery v. RELIANCE INSURANCE COMPANY.

No. 769DC718.

Court of Appeals of North Carolina.

March 2, 1977.

Perry, Kittrell, Blackburn & Blackburn, by Charles F. Blackburn, Henderson, for plaintiff appellee.

Teague, Johnson, Patterson, Dilthey & Clay, by I. Edward Johnson, Raleigh, for defendant appellant.

BRITT, Judge.

Defendant contends the court erred in allowing plaintiff to testify that the cost of repairs to his tractor was $2,657.04 and in admitting into evidence an itemized statement of the repairs. Defendant argues that said evidence allowed the jury to infer that all damages resulted from the fire. We find no merit in the contention.

The policy limited defendant's liability to the cost of repairs, provided said cost was less than the actual cash value of the tractor or its replacement cost. Plaintiff showed that the actual cash value and replacement cost of the tractor were considerably more than the cost of repairs, therefore, evidence with respect to the cost of repairs was relevant. Furthermore, any error was rendered harmless in view of subsequent testimony by defendant's witness O'Neal who pointed out the items on the statement which defendant claimed were not caused by the fire. In fact, during the trial defendant admitted its liability for $672.30, the cost of replacing burned items on the outside of the motor, and defendant used the statement to designate items for which it admitted liability.

Defendant contends the court erred in allowing plaintiff to testify as to the fair market value of the tractor before and after the fire and in admitting into evidence certain documents showing the purchase price of the tractor. This contention has no merit. As indicated above this evidence was relevant to show that the cost of repairs was less than the value of the tractor or the cost of replacement.

Defendant contends that the court erred in that it expressed an opinion on the evidence. The record reveals that during the cross-examination of plaintiff's witness Jimmy Lawrence, the witness stated that he thought the fire could have been caused by the rod hitting the bent oil pan. Defendant's attorney then asked, 'In other words, you yourself, are not undertaking to tell this jury that you know what caused the fire?' Lawrence replied, 'No'. The court then interjected, 'Well, I think that's exactly what he has done.' We find no merit in this contention.

It was very apparent to the jury that defense counsel had elicited an inconsistent statement from the witness. While it would have been better for the court not to have commented, we think the observation made by the court was so apparent to the jury that any error was harmless.

Defendant contends the court committed reversible error in allowing plaintiff's witness to testify as an expert witness 'that it was possible that the fire damaged the interior of the engine.' We find no merit in this contention.

Testimony challenged here was given by plaintiff's witness Hill. Defendant argues first that the court never declared the witness to be an expert on engines of the type in question but we think the court did so by implication. The record reveals that plaintiff offered the witness as an expert and asked him numerous questions regarding his qualifications. The witness was then asked a hypothetical question, defendant objected, the court overruled the objection and the witness answered. Defendant then moved to strike the answer and the motion was overruled. In 1 Stansbury's North Carolina Evidence, Brandis Revision, § 133, p. 431, we find:

'Objection that the witness is not qualified as an expert is waived if not made in apt time. The absence of a record finding in favor of his qualification is no ground for challenging the ruling implicitly made by the judge in allowing him to testify. In such a case, at least if the record indicates that such a finding could have been made, it will be assumed that the judge found him to be an expert, or that his competency was admitted, or that no question was raised in regard to it.'

Defendant next argues that under authority of Lockwood v. McCaskill, 262 N.C. 663, 138 S.E.2d 541 (1964), it was entitled to have the witness' answer stricken. We disagree. The record reveals that the pertinent hypothetical question was ended as follows:

'Have you an opinion, satisfactory to yourself, assuming that further, that the jury should find as a fact that after the fire on April 13th, repairs were made to this tractor requiring labor and parts as shown on plaintiff's Exhibit Number 2. Have you an opinion, satisfactory to yourself, as to whether fire could cause damage to the tractor to the extent that repairs requiring the labor and parts specified in plaintiff's Exhibit Number 2 would be necessary?'

The...