Paris v. Carolina Portable Aggregates, Inc. , 271 N.C. 471 ( 1967 )

157 S.E.2d 131 (1967) 271 N.C. 471

Gerald PARIS and wife, Myrtle Faye Paris
v.
CAROLINA PORTABLE AGGREGATES, INC.

No. 31.

Supreme Court of North Carolina.

October 11, 1967.

Redden, Redden & Redden, Hendersonville, for plaintiffs.

Lee, Lee & Cogburn, Asheville, for defendant.

BRANCH, Justice.

The General County Court of Henderson County was established under the chapter now codified as G.S. Chap. 7, Article 30. The court has jurisdiction concurrent with the Superior Court in tort actions.

At the threshold of this appeal we are faced with the question of whether the superior court judge erred in signing the order dismissing defendant's appeal to the superior court of Henderson County from the General County Court.

Rule 17 of the Rules of Practice in the Supreme Court, inter alia, provides:

"If the appellant in a civil action, or the defendant in a criminal prosecution, shall fail to bring up and file a transcript of the record twenty-eight days before the Court begins the call of cases from the district from which it comes at the term of this Court at which such transcript is required to be filed the appellee may file with the clerk of the Court the certificate of the clerk of the court from which the appeal comes, showing the names of the parties thereto, the time when the judgment and appeal were taken, the name of the appellant, and the date of the settling of the case on appeal, if any has been settled, with his motion to docket and dismiss at appellant's cost said appeal, which motion shall be allowed at the first session of the Court thereafter, with leave to the appellant, during the term, and after notice to the appellee, to apply for the redocketing of the cause; * * *"

To avoid dismissal, the appellant must get his appeal docketed within time, but the Court may in its discretion grant further time for filing the record if appellant files the record proper in time and then moves for certiorari, showing delay was not attributable to him. Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126; State v. Walker, 245 N.C. 658, 97 S.E.2d 219.

However, appeals in civil actions from the General County Courts to the Superior Courts are governed by G.S. § 7-295 which in part, provides:

"Appeals in civil actions may be taken from the general county court to the superior court of the county in term time for errors assigned in matters of law in the same manner as is now provided for appeals from the superior court to the Supreme Court except that appellant shall file in duplicate statement of case on appeal, as settled, containing the exceptions and assignments of error, which, together with the original record, shall be transmitted by the clerk of the general county court to the superior court, as the complete record on appeal in said court; that briefs shall not be required to be filed on said appeal, by either party, unless requested by the judge of the superior court; the record on appeal to the superior court shall be docketed before the next term of the superior court ensuing after the case on appeal shall have been settled by the agreement of the parties or by order of the court, and the case shall stand for argument at the next term of the superior court ensuing after the record on appeal shall have been docketed ten days, unless otherwise ordered by the court." (Emphasis added)

We note with particularity the statutory exception in G.S. § 7-295 which states: "* * * appellant shall file in duplicate statement of case on appeal, as settled, * * * [T]he record on appeal to the superior court shall be docketed before the next term of the superior court ensuing after the case on appeal shall have been settled by the agreement of the parties * * *" (Emphasis added). It is clear from the record that the case on appeal had not been settled by agreement or by order of the court. G.S. § 7-295 makes no provision for the filing of a case on appeal or for the docketing of the record on appeal from the general county court in the superior court until settlement of the case on appeal. Nor is there any provision that the case on appeal shall be transmitted by the clerk of the general county court to the superior court until after the case on appeal has been settled. That part of Judge Riddle's judgment designated as "Order Forming Part of Foregoing Judgment", dated 26 January 1967 and filed 31 January 1967, was erroneously entered.

The superior court sitting as an appellate court overruled defendant's assignments of error, and affirmed the judgment of the general county court of Henderson County. Defendant appealed from the judgment of the superior court of Henderson County, assigning numerous errors. Assignments of error meriting review are hereinafter considered.

Defendant challenges the correctness of the ruling of the superior court in overruling the exception and assignment of error of defendant directed to the trial court's failure to strike out portions of plaintiff's complaint. The paragraphs pertinent to this assignment of error are as follows:

"4. That during the course of the defendant's business operation of its quarry as above referred to said defendant, through its agents, blasts with dynamite or other combustible substances the rock located at said quarry; that, in the blasting, the defendant uses tremendous amounts of said combustible items which causes the earth to shake and tremble for many miles from the point where said rock quarry is located.

"5. That on Friday, March 13, 1964, at approximately 4:00 P. M., the defendant, through its agents, caused to be set off a tremendous explosion, far greater than that theretofore, at the quarry herein referred to, causing the damages to the plaintiffs' home as hereinafter set forth.

"6. That, as a resulting of said blasting on the part of the defendant, plaintiffs' home is, on each occasion of the blast and particularly at the time and date referred to in paragraph 5 above, severely shaken, causing said home to be cracked and broken in many hundreds of places, both inside and out; that the walls and ceiling on the inside have been shattered and torn loose from their foundation and the brick and mortar exterior have also been broken and cracked and torn away from its foundation; that on each occasion of the blasting on the part of the defendant, plaintiffs' home receives and suffers additional damage."

Defendant contends that all of paragraph 4 should be stricken, and that portion of paragraph 5 reading as follows: "tremendous," "far greater than that theretofore," and that portion of paragraph 6 reading as follows: "on each occasion of the blast and particularly * * *." The test to be applied upon a motion to strike portions of the complaint is: Does the pleader have the right to introduce evidence tending to establish the ultimate facts? If so, the motion should be denied; if not, it should be allowed. The denial of this motion is not ground for reversal unless the record affirmatively reveals that the matter is irrelevant or redundant and that its retention in the pleading will cause harm or injustice to the moving party. Batts v. Batts, 248 N.C. 243, 102 S.E.2d 862. Allegations should be stricken only when they are clearly improper, impertinent, irrelevant, immaterial, or unduly repetitious. Mere scenery and stage decoration contained in a pleading do not warrant a conclusion that such may form the basis for the introduction of incompetent evidence at the trial. Rhodes v. Jones, 232 N.C. 547, 61 S.E.2d 725. From a perusal of plaintiffs' complaint, we find that they have alleged damages on previous occasions, and particularly on 13 March 1964. They would therefore have the right to introduce evidence concerning the previous occasions. The descriptive word "tremendous" referring to the explosion and the fact that it describes one explosion as being greater than the other, could be proved by competent evidence. In any event, the retention of these pleadings will not cause injustice to defendant. We hold there was no prejudicial error in the denial of defendant's motion to strike.

Defendant attacks the ruling of the superior court in overruling its assignment of error to the ruling of the trial court in admitting into evidence over the objection of the defendant, copies of two letters. Contents of the challenged copies are as follows:

(1) "Flat Rock, North Carolina, April the 4th, 1964. Carolina Portable Aggregates, Incorporated. Dear Sirs: An explosion set off at the quarry at Dana, North Carolina, on Friday, March the 13th, 1964, did serious damages to the foundation and basement, exterior brick, and interior plastering of my home. I immediately reported of damages to Mr. Gray. My contractor is working on an estimate of cost to repair these damages. This matter is of deepest concern to me and I shall appreciate your interest and cooperation. Sincerely yours, Gerald Paris."

(2) "Flat Rock, North Carolina, April 20, 1964. Carolina Portable Aggregates, Inc. Dear Sirs: On April 4, 1964, I mailed you a letter concerning an explosion set off at the quarry at Dana, North Carolina, on March 13, 1964, which did serious damages to my home. On Friday, April 10, a Mr. Wall brought his contractor to my home. My contractor and I were also there. Mr. Wall was given my contractors estimate for fixing these damages. I understood Mr. Wall to say he would contact me the following week. The week has passed and I have not seen or heard from him. This matter remains of the very deepest concern to me and I do request your immediate attention. Sincerely, Gerald Paris."

These copies of letters were not signed; neither was evidence introduced that they were made at the same time and by the same mechanical operation as the original, nor that defendant had received the originals. There was no notice to defendant to produce the originals. There was not sufficient identification of the carbon copies. Liberty Chair Co. v. Crawford, 193 N.C. 531, 137 S.E. 577, 51 A.L.R. 1496. The better practice would have been to exclude these copies from evidence; however, the contents of the "copies" were collateral and amounted to a mere notice which did not directly concern the issues of the case, McMillan v. Baxley, 112 N.C. 578, 16 S.E. 845, and the record shows that the subject matter of the letters was later proved by competent evidence. Thus, the introduction of the copies was manifestly not prejudicial error.

The defendant's assignment of error that the trial judge erred in allowing Donies Justus to state that in his opinion the damage to plaintiffs' dwelling was caused by dynamiting is overruled.

"Whether a witness has the requisite skill to qualify him as an expert is chiefly a question of fact, the determination of which is within the exclusive province of the trial judge. To be an expert the witness need not be a specialist or have a license from an examining board or have had experience with the exact type of subject matter under investigation, nor need he be engaged in any particular profession or other calling. It is enough that, through study or experience, or both he has acquired such skill that he is better qualified than the jury to form an opinion on the particular subject." Stansbury, North Carolina Evidence, § 133, p. 314. See also Hopkins v. Comer, 240 N.C. 143, 81 S.E. 2d 368.

Objection to a witness' qualifications as an expert is waived if not made in apt time on this special ground, even though general objection is taken. Absent this special objection, the court need not specifically find the witness to be an expert, since when it admits his testimony it is presumed the court so found. Brewer v. Ring & Valk, 177 N.C. 476, 99 S.E. 358; State v. De Mai, 227 N.C. 657, 44 S.E.2d 218. Defendant failed to enter an objection as to the witness' qualifications in apt time. According to the record, the witness was a building inspector with many years' experience, including experience in repairing buildings which were damaged by blast of dynamite. Certainly, he was better qualified than the jury to form an opinion on this particular subject. His statement that Mrs. Paris told him the damage was caused by a blast over at the mine was offered for the purpose of corroboration, and was in fact consistent with the witness' testimony. This was not error. See Stansbury, North Carolina Evidence, 2d Ed., Witnesses, § 52, p. 105.

For the reasons above stated, the testimony of Ned Wells, an experienced builder, was likewise competent to show that he observed the cracks in the plaster of plaintiffs' dwelling and that normally construction cracks "don't operate that way." While this witness was on the witness stand, the following colloquy occurred:

"Q. If your Honor please, I admit I am leading him a little, but how can I get it out otherwise, and in your discretion, your Honor, I hope you will let me get it out so the jury can understand what I am talking about.

COURT: Well, let him tell it. He's an experienced builder. Let him describe it. Exception. To the foregoing statement of the Court expressing an opinion as to the weight to be given the testimony of the witness Wells, the defendant excepts.

Defendant contends this is prejudicial error and violates G.S. 1-180, as an expression of opinion by the judge. The record shows that through experience the witness was better qualified than the jury to form an opinion on this particular subject. Thus, the statement of the court was no more than a statement holding that the witness was qualified to give opinion evidence. This statement was not prejudicial error to defendant.

The trial court did not commit error in refusing to allow defendant's motion for a jury-view of plaintiffs' property Whether the court will allow a jury to view the premises is within the court's discretion. State Highway & Public Works Comm. v. Hartley, 218 N.C. 438, 11 S.E.2d 314. Here, no abuse of discretion is shown.

Defendant assigns error that the superior court erred in overruling defendant's assignment of error directed to the trial court's overruling the defendant's motion for judgment as of nonsuit made at the conclusion of all the evidence. In this connection defendant contends that when the plaintiffs alleged negligence, they elected not to proceed upon the theory of absolute liability.

Plaintiffs' complaint sufficiently alleged facts showing damage to their dwelling by concussion and vibration proximately caused by defendant's use of explosives in blasting. This is sufficient to state a cause of action. Guilford Realty & Insurance Co. v. Blythe Bros., 260 N.C. 69, 131 S.E.2d 900. The fact that plaintiffs alleged that defendant was negligent in other portions of the complaint is not necessarily an election to proceed upon the theory of negligence rather than absolute liability.

G.S. § 1-151 states: "In the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties."

We find in 71 C.J.S. Pleading § 521, the following: "Where a single count contains distinct averments, each of which presents a substantive cause of action, proof of either will authorize a recovery," and 71 C.J.S. Pleading § 522, states: "Surplusage.—As a general rule no more need be proved, even though more be alleged, than enough to sustain the cause of action or defense relied on. In other words, only those allegations necessary to a recovery need be supported by proof. Surplusages in a pleading need not be proved. Thus, as a general rule, no proof is required of allegations which are irrelevant, immaterial, or unnecessary." The trial judge correctly overruled defendant's motions for nonsuit.

At this point we will also consider defendant's contention that improper issues were submitted to the jury, in that no issue was submitted on negligence. "* * * only such issues as are raised by the pleadings and supported by sufficient competent evidence should be submitted to the jury." 4 Strong: N.C. Index, Trial, § 40, p. 348. The evidence in the record does not show negligence on the part of defendant which proximately caused damage to plaintiffs. The issues submitted were sufficient to dispose of the controversies arising on the pleadings and support a final judgment.

In charging on the first issue, the trial judge stated:

"Now, in a civil case that issue is determined by the weight of the evidence. You will weigh the evidence in this case. You are the sole judges of the facts. This case is yours and yours only to decide. If after you have weighed the evidence in this case the weight of the evidence tips the scales in favor of the plaintiffs, it would be your duty to answer the first issue YES. If you are not satisfied from the evidence in this case and by the greater weight thereof, you would answer that issue NO."

Defendant contends that this is prejudicial error as being incomplete, misleading, and particularly relies on the failure of the court to instruct the jury that it could answer the first issue No if the evidence of the plaintiffs and defendant were found to be of equal weight. It is not prejudicial to illustrate the burden of proof by analogy to a set of scales. Tarkington v. Rock Hill Printing & Finishing Co. (Dunston v. Rock Hill Printing & Finishing Co.), 230 N.C. 354, 53 S.E.2d 269, 11 A.L.R.2d 221. In the case of Hardee v. York, 262 N.C. 237, 136 S.E.2d 582, this Court said:

"* * * In the charge proper the court said: ``Now the burden of proof is upon the plaintiff on both of those questions (issues), that is, the burden of satisfying you by the greater weight of the evidence that those questions should be answered in her favor.' This was sufficient. The burden of proof is a substantial right, and the failure of the charge to properly place the burden of proof is reversible error. Tippite v. Atlantic Coast Line R. R., 234 N.C. 641, 68 S.E.2d 285; Crain v. Hutchins, 226 N.C. 642, 39 S.E.2d 831; Haywood v. Home Insurance Co., 218 N.C. 736, 12 S.E.2d 221. But when the court correctly places the burden of proof and states the proper intensity of the proof required, the court is not required to define the term ``greater weight of the evidence' in the absence of a prayer for special instructions."

In the instant case the court properly placed the burden of proof on the first issue and correctly stated the proper intensity of proof required. Although the court did not continue with his illustration as to the burden of proof, the court's statement, "if you are not satisfied from the evidence of this case and by the greater weight thereof, you would answer that issue No," the court thereby eliminated any confusion about the burden of proof. We do not think that this portion of the charge would have misled or confused the jury so as to prejudicially affect the defendant.

The defendant strongly contends that the superior court committed error when it overruled its exception and assignment of error to that portion of the court's charge which stated: "You will consider the evidence offered by the witnesses for the plaintiffs in regard to the value of this property before this alleged damage by the blasting. You will consider the condition of the property at this time, after the blasting."

In cases where the injury is completed or by a single act becomes a fait accompli, and which do not involve a continuing wrong or intermittent or recurring damages, the correct rule for the measurement of damages is the difference between the market value of the property before and after the injury. Broadhurst v. Blythe Bros. Co., 220 N.C. 464, 17 S.E.2d 646; Casstevens v. Casstevens, 231 N.C. 572, 58 S.E.2d 368. In reading the entire charge, we find that the trial judge again referred to the measure of damages at a later period in his charge, stating:

"I thought I told them that. Now, the rule of law in determining this damage —I thought that I had made that clear. Evidently I had not. Is the difference between the fair market value of this property—what was the fair market value immediately before this damage, if you find it was damaged by the defendant, and that was the reasonable fair market value after the damage, * * *"

All of the evidence in the case was directed so as to show the reasonable market value of the property immediately before the damage and the reasonable market value immediately after the damage. The instruction as to the measure of damages was sufficiently definite to guide the jury to an intelligent determination of this portion of the issues of damages.

This brings us to the consideration of defendant's exception to the failure of the court to charge the jury as to the burden of proof upon the second issue submitted to the jury.

In the case of Lieb v. Mayer, 244 N.C. 613, 94 S.E.2d 658, Parker, J. (now C. J.) speaking for the Court, said: "Damages are never presumed. The burden is always upon the complaining party to establish by evidence such facts as will furnish a basis for their assessment, according to some definite and legal rule. Berry v. Hyde County Land & Lumber Co., 183 N.C. 384, 111 S.E. 707; Rice v. Hill, 315 Pa. 166, 172 A. 289." And Denny, C. J., speaking for the Court in the case of Watt v. Crews, 261 N.C. 143, 134 S.E.2d 199, stated:

"In Tippite v. Atlantic Coast Line R. R., 234 N.C. 641, 68 S.E.2d 285, this Court said: ``G.S. § 1-180, as amended, requires that the judge "shall declare and explain the law arising on the evidence given in the case." This places a duty upon the presiding judge to instruct the jury as to the burden of proof upon each issue arising upon the pleadings. It is said that "``[t]he rule as to the burden of proof is important and indispensable in the administration of justice. It constitutes a substantial right of the party upon whose adversary the burden rests, and, therefore, it should be carefully guarded and rigidly enforced by the courts. State v. Falkner, 182 N.C. (793), 798, 108 S.E. 756, 17 A.L.R. 986. and cases cited.' Skyland Hosiery Co. v. [American Ry.] Express Co., 184 N.C. 478, 114 S.E. 823." Queen City Coach Co. v. Lee, 218 N.C. 320, 11 S.E.2d 341, 344; Crain v. Hutchins, 226 N.C. 642, 39 S.E.2d 831.'"

The trial court did not give an instruction as to the burden of proof on the second issue. This omission violates a substantial right of defendant, and we hold that this was prejudicial error.

"It is settled beyond controversy that it is entirely discretionary with the Court, Superior or Supreme, whether it will grant a partial new trial. It will generally do so when the error, or reason for the new trial, is confined to one issue, which is entirely separable from the others and it is perfectly clear that there is no danger of complication." Table Rock Lumber Co. v. Branch, 158 N.C. 251, 73 S.E. 164.

In the instant case the decisions on assignments of error relating to the first issue were, in several instances, very close. The assignments of error as to both issues are so intertwined that the ends of justice will be best met by a new trial on both issues.

In our discretion the judgment below is vacated and the cause is remanded to the Superior Court of Henderson County, with direction that it remand the cause to the General County Court of Henderson County for a new trial on both issues.

Error and Remanded.