Davis v. Ludlum , 255 N.C. 663 ( 1961 )

122 S.E.2d 500 (1961) 255 N.C. 663

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.

No. 165.

Supreme Court of North Carolina.

November 22, 1961.

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.

RODMAN, Justice.

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: "Its (the Davis building) adaptability for what he has been using it for is not the same it was before the construction of the parking lot. The elements are causing quite a bit of damage in the building * * *"

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, both those resulting from negligence of defendant and those resulting from changed use of the adjacent property and the disclosure of defects hidden and only apparent when the Rogers building was taken away. Those due to the negligence of defendants are compensable. The others are damnum absque injuria. The court did not indicate that the difference in value stated in finding 9 was caused by negligence of defendants. It proceeded with the next finding to determine the amount of damages caused by defendants' negligence, and for the damages negligently done it entered judgment in plaintiff's favor.

Plaintiff, without fixing in dollars and cents her estimate of damages tortiously inflicted, had testified to the condition of the building when purchased and the repairs and improvements subsequently made. On cross-examination she said she and her husband purchased in 1942. She was then asked if the purchase price was not $5,000. Plaintiff objected. The objection was overruled. She answered that the purchase price was $5,870. We think the question was competent on cross-examination. A similar conclusion was reached in Palmer v. North Carolina State Highway Comm., 195 N.C. 1, 141 S.E. 338, on a substantially identical factual situation.

Two witnesses having many years of engineering and construction experience testified to the cracks in plaintiff's wall. These witnesses, over plaintiff's objection, expressed their opinion as to the cause of the cracks. The witness Von Oesen testified without objection: "(T)he wall had broken in two places and was showing signs of settlement and the mortar bond between the brick was disintegrated and the mortar itself was coming out of most joints. It had several areas where minor cracks had developed and brick sections had cracked. The wall is fairly plumb, but it had settled towards the river in a longitudinal direction along the line of the wall, and it had two fissures or cracks that were very wide open, and weight deterioration to its entire structurability * * * I have an opinion that the cracks had been in the Davis wall for twenty years or more. This opinion is based on the fact that there is much mortar having fallen into the cracks; that there was soot and rotten wood. There were several places where those cracks had been repaired by brick and cement mortar, and the brick and mortar itself seemed to be twenty or more years of age." After cross-examination by counsel for plaintiff, he was re-examined by counsel for one of the defendants. He then testified: "It is my opinion that the wall is built on an unstable strata of material. We have made special examinations of the soil in this vicinity for a proposed extension of Broadfoot's building, and we found a varying low and very shallow strata of rock * * *. It is my opinion that the eastern end of the Davis building is bearing on this strata, and the western end on silt deposits near the river and over a period of time you could have a normal settlement which would cause the wall to crack as it has, and to me it is merely the incident of a time settlement." The evidence involving the witness's opinion as to the cause of the cracks was admitted over plaintiff's objection.

This assignment of error does not warrant another trial. The evidence seemingly is, in view of the witness's prior testimony, competent; but if it were not proper to call for opinion as to the cause of settling, the evidence could not be prejudicial since the witness had previously and without objection expressed the opinion that settling had occurred many years prior to the demolition of the Rogers building. If so, the cause of settling could in no manner relate to the liability of defendants. New trials are not awarded because of technical error. The error must be prejudicial. Parks v. Washington, 255 N.C. 478, 122 S.E.2d 70; Jenkins v. Leftwich Electric Co., 254 N.C. 553, 119 S.E.2d 767; Mercer v. Mercer, 253 N.C. 164, 116 S.E.2d 443. The objection to the evidence of the witness Glazier assigned as error falls in the same category as the Von Oesen testimony, and for the reasons given with respect to that testimony must be held not to warrant a new trial. Upon a review of the record and the assignments of error, we find nothing which would justify awarding a new trial.

No error.