Leary v. Nantahala Power and Light Co., 8430SC1178

• Decision Date: 06 August 1985
• Docket Number: No. 8430SC1178,8430SC1178
• Citation: 332 S.E.2d 703,76 N.C.App. 165
• Court: North Carolina Court of Appeals
• Parties: Peter T. LEARY and wife, Doris W. Leary, and Maryland Casualty Company v. NANTAHALA POWER AND LIGHT COMPANY.

Page 703

332 S.E.2d 703

76 N.C.App. 165

Peter T. LEARY and wife, Doris W. Leary, and Maryland Casualty Company v. NANTAHALA POWER AND LIGHT COMPANY.

No. 8430SC1178.

Court of Appeals of North Carolina.

Aug. 6, 1985.

Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Philip J. Smith and Allan R. Tarleton, Asheville, for plaintiffs appellees-appellants Leary.

Lentz, Ball & Kelley, P.A., by Ervin L. Ball, Jr., Asheville, for plaintiff-appellee Maryland Casualty Co.

Morris, Golding and Phillips, by James N. Golding and William C. Morris, III, Asheville, for defendant appellant-appellee.

MARTIN, Judge.

By its appeal, defendant Power Company assigns error to various of the court's rulings at trial, and to its award of prejudgment interest. By their cross appeal, plaintiffs assign error to the court's entry of judgment for an amount less than the jury verdict, and to post-trial rulings with regard to costs. We find no prejudicial error in the trial or in the court's ruling as to costs, but conclude that the court erred in awarding prejudgment interest on that portion of the judgment not covered by liability insurance, and in reducing, ex mero motu, the jury's verdict. Accordingly we remand for entry of judgment consistent with this opinion.

TRIAL

Defendant's first and second assignments of error relate to the admission into evidence of certain photographs and items of physical evidence. Defendant contends that these exhibits should not have been admitted because plaintiffs had not produced them for inspection before trial in violation of a discovery order. The discovery order, entered approximately eighteen months before trial, compelled plaintiffs to produce, among other things, "all photographs taken of the site of the fire before or after the fire" as well as "photographs which will form a basis for the factual contentions and/or opinions of Plaintiffs' expert witness(es)." The order also required plaintiffs to produce all items of physical evidence taken from the site of the fire which plaintiffs intended to introduce into evidence or which would form the basis for the opinion of an expert witness.

In response to the discovery order, plaintiffs apparently produced a number of photographs, but did not include among them certain photographs, taken before the fire, of various antiques which plaintiffs claimed had been destroyed in the fire. At trial, during the direct examination of plaintiff Peter Leary, these photographs were offered into evidence. Upon defendant's objection, the trial court ruled that the photographs would be admitted for purposes of illustrating Peter Leary's testimony, but could not be used by plaintiffs' expert witness since they had not been produced as required by the discovery order. The photographs were obviously competent to illustrate Leary's testimony as to the antiques which had been destroyed. The record before us contains no indication that the photographs were used, or even viewed, by plaintiffs' expert witness as to value. We discern no abuse of the trial court's discretion in permitting the admission of the photographs into evidence for illustrative purposes.

Defendant also objected to the introduction into evidence of sections of the service mast and photographs of certain portions of it, all of which were used by Dr. James Magor, a metallurgist called by plaintiffs, to illustrate his testimony as to his findings upon a metallurgical examination of the service mast. Defendant contends that neither the photographs nor the sections of the mast had been produced as required by the discovery order and that the appropriate sanction for noncompliance would have been the exclusion of this evidence. Defendant further asserts that had it known of these exhibits and that a metallurgical examination had been conducted, it could have obtained its own metallurgist to examine the service mast.

While exclusion of the evidence would have been a permissible sanction, authorized by G.S. 1A-1, Rule 37(b)(2), for noncompliance with the discovery order, it was not mandatory. In addition to those sanctions specified by Rule 37(b)(2), the rule authorizes the court, upon failure to comply with a discovery order, to "make such orders with regard to the failure as are just". Necessarily, then, the imposition of sanctions is within the sound discretion of the trial judge. Willoughby v. Wilkins, 65 N.C.App. 626, 310 S.E.2d 90 (1983), disc. rev. denied, 310 N.C. 631, 315 S.E.2d 697, 698 (1984).

The record before us indicates that defendant had been made aware, through discovery, that a metallurgical examination of the service mast had been conducted and that a metallurgist had been retained as an expert witness by plaintiffs. Apparently, defendants elected not to depose the metallurgist. In addition, defendant had been furnished a copy of a report compiled by Research Engineers, Inc., an engineering firm employed by plaintiffs, which contained a number of photographs of the service mast and referred to the metallographical examination and findings. Upon learning of defendant's objection to the exhibits, the trial court conducted a hearing and offered to recess the trial in order that defendant might employ its own metallurgist. Defendant declined the offer for a recess and elected to continue with the trial. Defendant did, however, submit the materials to a metallurgist for examination, and defendant's metallurgist testified at the trial. Thus, while we do not approve the non-production of the exhibits, we cannot say that their admission into evidence prejudiced the defendant, nor can we say that the trial court's offer to grant defendant a recess rather than impose the sanction of exclusion of the evidence was unjust or amounted to an abuse of discretion. These assignments of error are overruled.

During defendant's cross examination of Dr. Magor, who had been accepted by the court as an expert in the field of metallurgy, defendant attempted to ask the witness what temperatures he would expect to find in a house fire. The court, ex mero motu, sustained its own objection, stating that Dr. Magor was not qualified to answer the question. Defendant contends the court's action in sustaining its own objection prevented it from testing Dr. Magor's knowledge of the subject matter of his testimony and amounted to an expression of opinion prejudicial to defendant. We find no merit in these contentions. As long as the court maintains impartiality, it may, of its own motion, exclude incompetent or inadmissible evidence. Greer v. Whittington, 251 N.C. 630, 111 S.E.2d 912 (1960). The evidence involved lay outside the field of Dr. Magor's expertise, metallurgy, and his preparation for trial, which consisted solely of laboratory examination of the service mast.

Another of plaintiffs' witnesses, Fred L. Rapp, was accepted by the court as an expert in the fields of electrical engineering and the cause and origin of fires. During his testimony on direct examination, he negated incendiarism, accidental fire, spontaneous ignition and electrical fire inside the house as causes of the fire that destroyed the Leary's cabin. His elimination of accidental fire was based on information which had been furnished him that no one had been in the cabin. Defendant objected and now assigns the admission of this testimony as error, contending that there was no evidence from any of plaintiffs' witnesses that they had been in or near the cabin during the week and therefore the property had been unprotected and could have been entered by trespassers. We do not believe the admission of this testimony prejudiced defendant. Mr. Rapp qualified his opinion by stating that it was based on information provided him, and he admitted on cross-examination that he had no way of knowing whether or not someone had broken into the cabin before the fire occurred. The hearsay nature of the information relied upon by Mr. Rapp does not render his opinion inadmissible, State v. Wade, 296 N.C. 454, 251 S.E.2d 407 (1979), nor is there any requirement that such opinion be elicited through the use of a hypothetical question. N.C.G.S. § 8-58.12. Defendant also attempts, under this assignment of error, to assert similar challenges to the admission of Mr. Rapp's testimony negativing household electrical current inside the cabin or arson as causes of the fire. However, no exception appears in the record as to this testimony and therefore, defendant's arguments are not properly presented for our review. Rule 10(a), N.C.App.Proc. This assignment of error is overruled.

Defendant also assigns error to the admission of testimony by Gilbert Hollifield, an expert in the field of antiques and collectibles. Defendant contends that Mr. Hollifield, having never seen the plaintiffs' antiques, was not competent to give his opinion as to their value.

During the testimony of plaintiff Peter Leary, plaintiffs introduced into evidence a listing of all of the contents of the cabin, which had been prepared by Mr. and Mrs. Leary after the fire. The list contained a description of each item and its value in Leary's opinion. Leary testified that the fair market value of all of the items destroyed by the fire aggregated approximately $190,000.00. When Mr. Hollifield testified, he was permitted to testify, over objection, that he had reviewed the list prepared by the Learys and in his opinion the aggregate value of the listed items reflected their fair market value as of the date of the fire. He admitted that he had not seen the antiques and that the value of such items would vary significantly depending on their condition.

Generally, a witness qualified by experience, information and observation may give an opinion as to the value of specific property. 1 H. Brandis, North Carolina Evidence § 128 (1982). To establish an adequate foundation to place a valuation into evidence, it must be shown that the witness (1) is familiar with the property upon which he places a...