Yassoo Enterprises, Inc. v. North Carolina Joint Underwriting Ass'n, 8421SC486

• Decision Date: 19 February 1985
• Docket Number: No. 8421SC486,8421SC486
• Citation: 73 N.C.App. 52,325 S.E.2d 677
• Court: North Carolina Court of Appeals
• Parties: YASSOO ENTERPRISES, INC. d/b/a Diamond Jim's v. NORTH CAROLINA JOINT UNDERWRITING ASSOCIATION.

Page 677

325 S.E.2d 677

73 N.C.App. 52

YASSOO ENTERPRISES, INC. d/b/a Diamond Jim's v. NORTH CAROLINA JOINT UNDERWRITING ASSOCIATION.

No. 8421SC486.

Court of Appeals of North Carolina.

Feb. 19, 1985.

Pfefforkorn, Cooley, Pishko & Elliot by David C. Pishko, Winston-Salem, for plaintiff-appellant.

Yates, Fleishman, McLamb & Weyher by Joseph W. Yates, III, and Barbara B. Weyher, Raleigh, for defendant-appellee.

EAGLES, Judge.

I

Plaintiff contends that it was error for the trial court to admit certain documentary evidence and to allow testimony as to its contents. We agree. The document in question was a copy of the installation and service record of plaintiff's burglar alarm system. It indicates that the system was purchased on 13 September 1979. The record shows that the system had been serviced on 15 October 1980 and a "bad control" found, and that a service call to correct the problem was refused on 30 January 1981. The witness who testified with regard to the document was the custodian of business records, including service records, for Alarmaster, Inc. Those records included plaintiff's service record.

Alarmaster was a successor corporation to Sentinel-Guard, the company that had sold and installed plaintiff's burglar alarm. The witness was not employed as custodian of records for either company at the time the entries were made on plaintiff's service record. Though she indicated general familiarity with the records of Sentinel-Guard, she was not personally familiar with plaintiff's record. Further, there is no showing how the records of either company were maintained. Specifically, there is no indication who had access to the records of Sentinel-Guard, who would have made the entries indicating that service was refused or whether the record entry was made in the normal course of business at or near the time of the alleged refusal of service. The only indication that the record was made in the usual course of business is in defendant's counsel's question to the witness, which was immediately followed by plaintiff's objection to the ensuing testimony. The court overruled that objection and a later objection to the admission of the document. In our view, the foundation for the admission of this evidence was inadequate, failing to establish the usual indicia of reliability that should accompany admissible business records. See Pinner v. Southern Bell, 60 N.C.App. 257, 298 S.E.2d 749, rev. denied, 308 N.C. 387, 302 S.E.2d 253 (1983). See generally, Brandis, N.C. Evidence, Section 155 (1982 and Supp.1983).

Defendant argues that, even if the document and related testimony were wrongly admitted, plaintiff's objections were waived by his failure to object to the following question by defendant's counsel and the witness's response:

Q. Do you know who the individual was who attempted to repair the system on January 30, 1981 but whose service was refused?

A. Mr. Rundo.

We disagree. Objections to the earlier admission of evidence are waived only when evidence of the same import is later admitted without objection. Harvel's, Inc. v. Eggleston, 268 N.C. 388, 150 S.E.2d 786 (1966). The question and response quoted above do not constitute evidence of the same import as that objected to and incorrectly admitted. Plaintiff's objection to the admission of the earlier evidence was not waived by his failure to object to this question. Further, since the witness by her own admission was testifying only on the basis of a document that was improperly in evidence, and since counsel's question was apparently drawn from that same evidence, plaintiff's opposition to this evidence was self-evident and did not require an additional objection. Duke Power v. Winebarger, 300 N.C. 57, 265 S.E.2d 227 (1980).

Though it was error to admit the document and the related testimony, the error was harmless because the evidence is irrelevant and proves nothing. There is no evidence or suggestion in the record as to why service was refused. Contrary to the testimony of the witness, the service record does not show that James Warren refused the service, only that service was refused. Further, there is no evidence tending to show that the "bad control" rendered the burglar alarm inoperable. Indeed, the three months delay between the discovery of the bad control and the service call to repair it indicates that the faulty control did not affect the system's effectiveness. Further, plaintiff has not shown that the verdict of the jury was probably influenced by this error. State v. Murvin, 304 N.C. 523, 284 S.E.2d 289 (1981); Collins v. Lamb, 215 N.C. 719, 2 S.E.2d 863 (1939). Plaintiff has shown no prejudicial error and his contention is without merit.

II

Plaintiff next contends that the testimony of two witnesses that the building was not forcibly entered should have been excluded because the witnesses were not qualified by the court as experts in the field of determining whether entry was forced. We disagree. The witnesses in question were Chief O'Ferrell of the Statesville Fire Department and Eugene Bishop of the State Bureau of Investigation. Chief O'Ferrell was initially qualified only as an expert in arson investigation. Later, after becoming acquainted with his experience and background, the court allowed O'Ferrell to give his opinion, over plaintiff's objection, as to whether the door had been forcibly opened. Though not formally designated an expert, the court's ruling to that effect was implied by its action. Apex Tire and Rubber Co. v. Merritt Tire Co., 270 N.C. 50, 153 S.E.2d 737 (1967).

With regard to Agent Bishop, plaintiff contends that his testimony that the basement door to the club had not been forced open was meaningless because Bishop did not examine the door until nearly a year after the fire and after the door had been painted and new locks had been installed. Plaintiff argues therefore that the testimony should have been excluded. This argument is not persuasive. Plaintiff's objections to Bishop's testimony go to its credibility, not its competence. The evidence is relevant and admissible. Whether it proves anything is a question for the jury, not the judge. In re Durham Annexation Ordinance, 66 N.C.App. 472, 311 S.E.2d 898, rev. denied, 310 N.C. 744, 315 S.E.2d 701 (1984). See generally, Brandis, supra, Section 8 (1982 and Supp.1984). Plaintiff's contentions are without merit.

III

Plaintiff contends also that it was error for the trial court to deny its motions for directed verdict, made at the close of the evidence, and for judgment n.o.v. The basis for both motions and for plaintiff's argument on appeal is that defendant's evidence on the issue of intentional burning fails to establish a link between the fire and Warren or any other agent of plaintiff. We disagree.

In civil cases involving intentional burnings, this court has held on at least two occasions that a jury may properly infer from circumstantial evidence that a party caused or procured a fire.

Ordinarily, there is no direct evidence of the cause of a fire, and therefore, causation must be established by circumstantial evidence.... It is true that there must be a causal connection between the fire and its supposed origin, but this may be shown by reasonable inference from the admitted or known facts.... The evidence must show that the more reasonable probability is that the fire was caused by the plaintiffs or an instrumentality solely within their control. [Citations omitted.]

Fowler-Barham Ford, Inc. v. Lumbermen's Mutual, 45 N.C.App. 625, 263 S.E.2d 825, rev. denied, 300 N.C. 372, 267 S.E.2d 675 (1980); Freeman v. Saint Paul Fire and Marine Ins. Co., 45 N.C.App. ---, 324 S.E.2d 307 (1985).

Plaintiff nevertheless contends that, because there was no evidence placing Warren or another agent at the fire scene when the fire started, the evidence falls short of the standards pronounced in Fowler-Barham Ford, supra. For this proposition, plaintiff relies on State v. Tew, 62 N.C.App. 190, 302 S.E.2d 633, rev. denied, 309 N.C. 464, 307 S.E.2d 370 (1983), a criminal case in which it was held that a criminal defendant may not be convicted of arson unless there was some evidence placing him near the scene at the time of the fire.

We note first that plaintiff's reliance on State v. Tew is misplaced because that case involves the more strict standards required to withstand a motion to dismiss criminal charges. However, in Freeman v. Saint Paul, supra, a case...