{ "id": 8550686, "name": "THOMAS HUFF and wife, BARBARA F. HUFF v. BRANTLEY THORNTON, CENTRAL CAROLINA FARMERS EXCHANGE, INC., JOSEPH MILTON FULTON, SR., and J. W. JENKINS, INC.", "name_abbreviation": "Huff v. Thornton", "decision_date": "1974-11-06", "docket_number": "No. 749SC519", "first_page": "388", "last_page": "396", "citations": [ { "type": "official", "cite": "23 N.C. App. 388" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "186 S.E. 2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "13 N.C. App. 583", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554730 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/13/0583-01" ] }, { "cite": "160 S.E. 2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575680 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0498-01" ] }, { "cite": "116 S.E. 3", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1923, "opinion_index": 0 }, { "cite": "185 N.C. 43", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655234 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/nc/185/0043-01" ] }, { "cite": "193 S.E. 219", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1937, "opinion_index": 0 }, { "cite": "212 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601496 ], "year": 1937, "opinion_index": 0, "case_paths": [ "/nc/212/0133-01" ] }, { "cite": "17 S.E. 2d 646", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1941, "opinion_index": 0 }, { "cite": "220 N.C. 464", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11304984 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/nc/220/0464-01" ] }, { "cite": "157 S.E. 2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565056 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0471-01" ] }, { "cite": "159 S.E. 2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 368", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575354 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0368-01" ] }, { "cite": "83 S.E. 479", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1914, "opinion_index": 0 }, { "cite": "167 N.C. 262", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272186 ], "year": 1914, "opinion_index": 0, "case_paths": [ "/nc/167/0262-01" ] }, { "cite": "192 S.E. 854", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1937, "opinion_index": 0 }, { "cite": "212 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598451 ], "year": 1937, "opinion_index": 0, "case_paths": [ "/nc/212/0041-01" ] }, { "cite": "55 S.E. 2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "230 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631573 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/nc/230/0629-01" ] }, { "cite": "61 S.E. 2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "232 N.C. 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612950 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/nc/232/0684-01" ] }, { "cite": "91 S.E. 2d 919", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "243 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626932 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/243/0695-01" ] }, { "cite": "158 S.E. 2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572967 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0366-01" ] } ], "analysis": { "cardinality": 779, "char_count": 19442, "ocr_confidence": 0.603, "pagerank": { "raw": 2.1159610140721898e-07, "percentile": 0.7638955012435088 }, "sha256": "cb11fb8f4110d77452bcd80efd493f5b99b2f27adcf63af65f07df0d9ad8fb5a", "simhash": "1:a2e9e92b528ed52b", "word_count": 3230 }, "last_updated": "2023-07-14T21:32:39.683180+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Vaughn concurs.", "Judge Campbell dissents." ], "parties": [ "THOMAS HUFF and wife, BARBARA F. HUFF v. BRANTLEY THORNTON, CENTRAL CAROLINA FARMERS EXCHANGE, INC., JOSEPH MILTON FULTON, SR., and J. W. JENKINS, INC." ], "opinions": [ { "text": "PARKER, Judge.\nDefendants assign error to the denial of their motions for directed verdict and in support of this assignment contend that, all of plaintiffs\u2019 evidence as to the reduction in the fair market value of their property caused by the accident was incompetent and should have been excluded. In passing upon a trial court\u2019s ruling denying a defendant\u2019s motion for directed verdict, the appellate court must consider all of the evidence, including, incompetent evidence erroneously admitted over defendant\u2019s objections. The reason for this rule is that the admission of such evidence may have caused the plaintiff to omit competent evidence of the same import. This rule was long recognized in effect under our former practice in reviewing decisions upon motions for nonsuit, Koury v. Follo, 272 N.C. 366, 158 S.E. 2d 548 (1968) ; Early v. Eley, 243 N.C. 695, 91 S.E. 2d 919 (1956) ; Supply Co. v. Ice Cream Co., 232 N.C. 684, 61 S.E. 2d 895 (1950) ; Ballard v. Ballard, 230 N.C. 629, 55 S.E. 2d 316 (1949) ; Midgett v. Nelson, 212 N.C. 41, 192 S.E. 854 (1937) ; Morgan v. Benefit Society, 167 N.C. 262, 83 S.E. 479 (1914), and the reason for the rule continues to apply with equal force in reviewing decisions upon motions for a directed verdict under our new Rules of Civil Procedure. We hold, therefore, that an assignment of error directed to the trial court\u2019s ruling on a motion for directed verdict made under G.S. 1A-1, Rule 50(a) does not present for review rulings, on the admission or exclusion of evidence. See 5A, Moore\u2019s Federal Practice, \u00b6 50.03 [2], p. 2334. In so holding we do not intend to imply that we agree with defendants\u2019 contention that plaintiffs\u2019 evidence in this case was incompetent. We shall express our views in that connection later in this opinion insofar as the trial court\u2019s rulings on admissions of evidence are properly presented for our review by appropriate assignments of error. At this point, in reviewing the assignment of error relating to denial of defendants\u2019 motion for directed verdict, we examine all of the evidence admitted in the present case for the sole purpose of ascertaining if it establishes the amount of plaintiffs\u2019 damages with sufficient certainty to permit the jury to answer the issues submitted. If so, defendants\u2019 motions for directed verdict were properly denied.\nThere was uncontradicted evidence that the automobile owned by the plaintiff, Thomas Huff, had a fair market value of $600.00 just prior to being hit by the tanker truck and had no value after the accident, and on this appeal defendants bring forward no assignment of error relating to the claim for damages to personal property. As to the claim for damages to plaintiffs\u2019 residence, the evidence, viewed in the light most favorable to plaintiffs, tended to show: Plaintiffs\u2019 residence was a three-bedroom brick-veneer house containing approximately 1200 to 1400 square feet. It was located on a .88 acre tract of land on which there was also located a store operated by plaintiffs. Plaintiffs had purchased the entire .88 acre tract, including the storebuilding and the residence, in 1967 for $25,000.00. The residence building was approximately 15 years old at the time it was damaged on 23 December 1971. Prior to' being struck by the tanker truck, it was in good condition. A new roof had been recently installed and the exterior woodwork and a portion of the interior had been recently painted. As a result of being struck by the tanker truck, a hole approximately 4 feet by 4 feet was knocked in the brick veneer at the corner of the residence where the tanker truck hit, plastering in the house was cracked, tile flooring in the kitchen was buckled, kitchen cabinets were damaged, the frame of the house was knocked slightly out of square, the roof was raised slightly, doors were jammed shut, and a storm door was broken. Plaintiffs\u2019 witnesses testified as to the fair market value of the residence immediately before and immediately after the accident. In this regard the opinions expressed by plaintiffs\u2019 witnesses as to the fair market value immediately before the accident ranged from a low of $25,800.00 to a high of $28,500.00 and as to the fair market value immediately after the accident the opinions ranged from a low of $3,500.00 to a high of $5,800.00. On the claim for loss of use of real property, there was evidence that it would be necessary that plaintiffs leave their home while it was being repaired, that it would take 12 to 15 months to complete the repairs, that rent on a comparable house would be $150.00 a month, and that cost of moving would be $250.00. When we view all of the evidence in the light most favorable to plaintiffs, we find it amply sufficient to withstand defendants\u2019 motions for a directed verdict.\nDefendants next contend that the court erred in permitting plaintiffs\u2019 witness, Daniel, to testify over defendants\u2019 objections as to his opinion of the fair market value of the residence immediately prior to the accident. In support of this contention, defendants argue in their brief that it was not established that Daniel was familiar with plaintiffs\u2019 home prior to the accident and that he was not tendered as an expert witness to testify in response to a hypothetical question. There was evidence, however, that Daniel had been in the real estate and insurance business since 1945, that he was familiar with prices of real estate in Granville County, and that he had been to the. Huff house, though the date of this visit was not shown. His subsequent testimony revealed that he had examined plaintiffs\u2019 residence with great care, taking measurements and computing its square footage, and that he was intimately familiar with all \u00abdetails of the structure as it existed after the accident. There was also evidence that only minimal changes , had been made, in plaintiffs\u2019 residence except such as directly resulted from the accident. We also note that of all of plaintiffs\u2019 witnesses, Daniel gave the lowest before-accident valuation and highest after-accident valuation. We find no prejudicial error in the court\u2019s permitting him to express an opinion as to the fair market value of plaintiffs\u2019 house immediately prior to the accident.\nUnder cross-examination, Thomas Huff, one of the plaintiffs, and two of plaintiffs\u2019 other witnesses, Clark and Morgan, who were building contractors, each testified that the opinion he had expressed on direct examination as to pre-accident fair market value of the residence had been his estimate of replacement cost. Defendants contend that this testimony elicited by cross-examination so completely destroyed the direct examination testimony of these witnesses that it was error for the judge in charging the jury to recapitulate the direct examination opinion testimony of these witnesses. We do not agree. In the appraisal of property there are three standard approaches, namely, (1) the cost approach, (2) the income approach, and (3) the market comparison approach. See Redevelopment Comm. v. Panel Co., 273 N.C. 368, 159 S.E. 2d 861 (1968). Experienced appraisers generally employ all three approaches in arriving at their opinion as to the fair market value of a particular piece of property. The fact that defendants were able to show by cross-examination that the three witnesses above referred to in this case employed only one of the three standard approaches did not utterly destroy their testimony. It merely permitted the jury to evaluate that testimony better. Appraisal of an individual tract of real property is at best an inexact procedure, and determination of its fair market value, which by standard definition is the price at which it would have sold on a given date in a transaction which never occurred between willing but uncompelled seller and buyer who never existed, can never be arrived at with scientific certainty. In this case we find no error in the portion of the court\u2019s charge recapitulating for the jury the testimony of plaintiffs\u2019 witnesses.\nIn Paris v. Aggregates, Inc., 271 N.C. 471, 157 S.E. 2d 131 (1967) our Supreme Court said that \u201c[i]n cases where the injury [to real property] 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 measure of damages is the difference between the market value of the property before and after the injury.\u201d Our Supreme Court has in general adhered to this diminution in value formula as the correct rule for determining damages in such cases. Broadhurst v. Blythe Brothers Co., 220 N.C. 464, 17 S.E. 2d 646 (1941) ; Owens v. Lumber Co., 212 N.C. 133, 193 S.E. 219 (1937) ; Construction Co. v. R. R., 185 N.C. 43, 116 S.E. 3 (1923). Under some circumstances other courts have held the reasonable cost of restoring or repairing the damage to be an appropriate measure. See Dobbs, Handbook on the Law of Remedies, \u00a7 5.1 at 312-18 (1973). In this case the trial court correctly instructed the jury in accord with the formula approved by our Supreme Court that they should award the plaintiffs such amount as the jury should find by the greater weight of the evidence \u201crepresents the difference between the fair market values of the plaintiffs\u2019 residence immediately before and immediately after the damage occurred.\u201d The court also correctly defined fair market value as \u201cthe amount which would be agreed upon as a fair price by an owner who wishes to sell but is not obliged to do so, and a buyer who wishes to buy but is not compelled to do so.\u201d Defendants do not except to these portions of the court\u2019s charge, but they do assign error to the portion of the charge in which the court instructed the jury that in arriving at their determination of fair market value they should consider, in addition to the other evidence, \u201cthe evidence of the parties relating to the costs of repairing the house and the costs of rebuilding the house.\u201d As to costs of repairs, plaintiffs\u2019 witness Morgan estimated that \u201c[i]f the house was not out of square,\u201d repair costs of $9,683.40 \u201cwould put the house back into substantially the same condition it was in before the accident,\u201d while defendants\u2019 witnesses testified to repair costs ranging from a low of $4,685.00 to a high of \u201capproximately $10,000.00.\u201d Since most of the evidence as to repair costs was supplied by defendants and all of such evidence showed figures substantially less than plaintiffs\u2019 evidence tended to show under the diminution in value formula, manifestly defendants could only have been helped, not harmed, by the fact that the court instructed the jury to consider such evidence. As to the court\u2019s reference to the evidence as to \u201cthe costs of rebuilding the house,\u201d if it be assumed that the jury might have understood that the court was referring to some amount greater than the repair costs, such as, for example, the full replacement cost of the residence, yet we find no prejudicial error in the court\u2019s making such a reference in the context in which it was made in the court\u2019s charge. We note that the court\u2019s language could not reasonably be interpreted as conveying to the jury any understanding that they might award full replacement costs as the amount of plaintiffs\u2019 damages. Rather, it is clear that the court instructed the jury to consider the evidence of the parties as to \u201cthe costs of rebuilding the house\u201d only for purposes of arriving at their determination of fair market value, a determination which it was necessary for the jury to make in applying the diminution in value formula. Moreover, as herein-above noted, the cost approach is at least one of the recognized standard approaches employed in making appraisals of real property. We find no prejudicial error in the portions of the charge complained of.\nDefendants assign error to the court\u2019s actions admitting evidence concerning loss of use damages and in instructing on that issue. In this connection defendants contend that some of plaintiffs\u2019 evidence tended to show that their residence was damaged beyond repair. Defendants argue that if this be true, then plaintiffs should not be permitted to recover for loss of use of their residence for any period of time but should be limited to the diminution in value of their property as the full measure of their damages. However, defendants mistake the purport of plaintiffs\u2019 evidence. Although some of plaintiffs\u2019 witnesses testified that in their opinion it would cost more to repair satisfactorily than it would to rebuild, there was no evidence that plaintiffs\u2019 residence could not be repaired. Since this was so and since there was also evidence that it would be necessary for plaintiffs to move out of the house while it was being repaired, we see no reason why plaintiffs in this case were not entitled to an award of damages for loss of use of their property as well as for the diminution in its value caused by defendants\u2019 tort. It would seem necessary that plaintiffs receive such an award if they are to be made whole. The amount awarded by the jury for loss of use was well within the amount which would have been supported by the evidence.\nDefendants assign error to the denial of their motion that the jury be permitted to view plaintiffs\u2019 residence. Such a motion is addressed to the sound discretion of the trial court. State v. Ross, 273 N.C. 498, 160 S.E. 2d 465 (1968) ; Paris v. Aggregates, Inc., supra; State v. Smith, 13 N.C. App. 583, 186 S.E. 2d 600 (1972). No abuse of discretion has been here shown.\nDefendants noted 82 assignments of error in the record and brought forward many of these in their brief. We have discussed those which we consider the most important \u2022 and have carefully considered all the remainder. We find no error sufficiently prejudicial to warrant a new trial. Accordingly, in the trial and judgment appealed from we find\nNo error.\nJudge Vaughn concurs.\nJudge Campbell dissents.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Watkins, Edmunds on & Wilkinson by William T. Watkins and C. W. .Wilkinson, Jr. for plaintiff appellees.", ".Spears, Spears, Barnes, Baker & Boles by Alexander H. Barnes; and Young, Moore & Henderson by Joseph Yates III for defendant appellants." ], "corrections": "", "head_matter": "THOMAS HUFF and wife, BARBARA F. HUFF v. BRANTLEY THORNTON, CENTRAL CAROLINA FARMERS EXCHANGE, INC., JOSEPH MILTON FULTON, SR., and J. W. JENKINS, INC.\nNo. 749SC519\n(Filed 6 November 1974)\n1. Rules of Civil Procedure \u00a7 50\u2014 motion for directed verdict \u2014 consideration of incompetent evidence\nIn passing upon a trial court\u2019s ruling denying a defendant\u2019s motion for directed verdict, the appellate court must consider all 'of the evidence, including incompetent evidence erroneously admitted over defendant\u2019s objections, since the admission of such evidence may have caused the plaintiff to omit competent evidence of the same import.\n2. Rules of Civil Procedure \u00a7 50\u2014 directed verdict \u2014 consideration of evidence on appeal\nAn assignment of error directed to the trial court\u2019s ruling on a motion for directed verdict made under G.S. 1A-1, Rule 50(a), does not present for review rulings .on the admission or exclusion of evidence.\n3. Damages \u00a7 15\u2014 damages to residence \u2014 sufficiency of evidence\nIn an action to recover for damages sustained by plaintiffs when a gasoline tanker truck owned and driven by defendants struck plaintiffs\u2019 residence and automobile, evidence was sufficient to withstand defendants\u2019 motions for directed verdict where it tended to show that the house was in good condition and was valued from $25,800 to $28,500 immediately prior to the accident and from $3,500 to $5,800 immediately after the collision, the collision knocked a four foot square hole in the brick veneer of the residence, plastering was cracked, tile flooring was buckled, kitchen cabinets were damaged, the frame of the house was knocked slightly out of square, the roof was raised slightly, doors were jammed shut, and a storm door was broken, and where the evidence tended to show that plaintiffs had to leave their home for 12 to 15 months while repairs were being made, rent on a comparable house was $150 per month, and the cost of moving was $250.\n4. Damages \u00a7 13; Evidence \u00a7 56\u2014 evidence of value \u2014 opinion testimony\nIn an action to recover damages for injury to real property sustained when defendants\u2019 vehicle collided with plaintiffs\u2019 residence, the trial court did not err in allowing a witness to express an opinion as to the fair market value of plaintiffs\u2019 house immediately prior to the accident, though there was no showing that the witness was familiar with the house prior to the accident, since the evidence did show that the witness was intimately familiar with all the details of the structure as it existed after the accident and only minimal changes had been made in the house except such as directly resulted from the accident.\n5. Damages \u00a7 13; Evidence \u00a7 56\u2014 evidence of value \u2014 opinion based on replacement cost\nThough experienced appaisers generally employ the cost approach, the income approach, and the market comparison approach in arriving at their opinion as to the fair market value of a particular piece of property, the trial court did not err in recapitulating opinion testimony of three witnesses where each witness testified that the opinion he had expressed on direct examination as to pre-accident fair market value of the residence had been his estimate of replacement cost.\n6. Damages \u00a7 16\u2014 instructions \u2014 cost of repairing and rebuilding house\nIn an action to recover damages sustained when defendants\u2019 vehicle collided with plaintiffs\u2019 residence, the trial court did-mot err in instructing the jury that in arriving at their determination of fair market value they should consider, in addition to the other evidence, \u201cthe evidence of the parties relating to the costs of repairing the house and the costs of rebuilding the house.\u201d\n7. Damages \u00a7 5\u2014 injury to residence \u2014 loss of use \u2014 submission of issue proper\nThe trial court properly admitted evidence and instructed on loss of use damages, though some of plaintiffs\u2019 witnesses testified that in their opinion it would cost more to repair satisfactorily than it would to rebuild, since there was no evidence that plaintiffs\u2019 residence could not be repaired and since there was evidence that it would be necessary for plaintiffs to move out of the house while it was being repaired.\n8. Trial \u00a7 13\u2014 jury view of damaged house \u2014 discretionary matter\nThe trial court did not abuse its discretion in denying defendants\u2019 motion that the jury be permitted to view plaintiffs\u2019 residence.\nJudge Campbell dissents.\nAppeal by defendants from McLelland, Judge, 3 December 1973 Session of Superior Court held in Granville County.\n\u25a0 On 23 December 1971 a collision occurred on U. S. Highway 158 between trucks owned by the corporate defendants and driven by the individual defendants, causing one of the vehicles, a 3000 gasoline tanker truck, to leave the highway and strike plaintiffs\u2019 residence and a parked automobile owned by the male plaintiff. This action for damages resulted. Defendants stipulated their joint liability, and the case was submitted to the jury solely on issues of damages. The jury returned verdict that plaintiffs recover $18,000.00 for damages to real property, that plaintiff, Thomas Huff, recover $600.00 for damages to his personal property, and that plaintiffs recover $1,534.00 for loss of use of real property. From judgment on the verdict, defendants appealed.\nWatkins, Edmunds on & Wilkinson by William T. Watkins and C. W. .Wilkinson, Jr. for plaintiff appellees.\n.Spears, Spears, Barnes, Baker & Boles by Alexander H. Barnes; and Young, Moore & Henderson by Joseph Yates III for defendant appellants." }, "file_name": "0388-01", "first_page_order": 416, "last_page_order": 424 }