{
  "id": 8550981,
  "name": "GLEN DOLEN LAWRENCE, T/A LAWRENCE NURSERY v. RELIANCE INSURANCE COMPANY",
  "name_abbreviation": "Lawrence v. Reliance Insurance",
  "decision_date": "1977-03-02",
  "docket_number": "No. 769DC718",
  "first_page": "414",
  "last_page": "421",
  "citations": [
    {
      "type": "official",
      "cite": "32 N.C. App. 414"
    }
  ],
  "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": "138 S.E. 2d 541",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1964,
      "opinion_index": 0
    },
    {
      "cite": "262 N.C. 663",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8570996
      ],
      "year": 1964,
      "opinion_index": 0,
      "case_paths": [
        "/nc/262/0663-01"
      ]
    }
  ],
  "analysis": {
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    "sha256": "56c651e56522fcf3f3937833b21689e82715b1c9721a9a718b336c28473ba338",
    "simhash": "1:3b2a646bd41e809e",
    "word_count": 2809
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  "last_updated": "2023-07-14T16:52:52.366891+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Hedrick and Clark concur."
    ],
    "parties": [
      "GLEN DOLEN LAWRENCE, T/A LAWRENCE NURSERY v. RELIANCE INSURANCE COMPANY"
    ],
    "opinions": [
      {
        "text": "BRITT, Judge.\nDefendant contends the court erred in allowing plaintiff to testify that the cost of repairs to his tractor was $2,657.04 and in admitting into evidence an itemized statement of the repairs. Defendant argues that said evidence allowed the jury to infer that all damages resulted from the fire. We find no merit in the contention.\nThe policy limited defendant\u2019s liability to the cost of repairs, provided said cost was less than the actual cash value of the tractor or its replacement cost. Plaintiff showed that the actual cash value and replacement cost of the tractor were considerably more than the cost of repairs, therefore, evidence with respect to the cost of repairs was relevant. Furthermore, any error was rendered harmless in view of subsequent testimony by defendant\u2019s witness O\u2019Neal who pointed out the items on the statement which defendant claimed were not caused by the fire. In fact, during the trial defendant admitted its liability for $672.30, the cost of replacing- burned items on the outside of the motor, and defendant used the statement to designate items for which it admitted liability.\nDefendant contends the court erred in allowing plaintiff to testify as to the fair market value of the tractor before and after the fire and in admitting into evidence certain documents showing the purchase price of the tractor. This contention has no merit. As indicated above this evidence was relevant to show that the cost of repairs was less than the value of the tractor or the cost of replacement.\nDefendant contends that the court erred in that it expressed an opinion on the evidence. The record reveals that during the cross-examination of plaintiff\u2019s witness Jimmy Lawrence, the witness stated that he thought the fire could have been caused by the rod hitting the bent oil pan. Defendant\u2019s attorney then asked, \u201cIn other words, you yourself, are not undertaking to tell the jury that you know what caused the fire?\u201d Lawrence replied, \u201cNo.\u201d The court then interjected, \u201cWell, I think that\u2019s exactly what he has done.\u201d We find no merit in this contention.\nIt was very apparent to the jury that defense counsel had elicited an inconsistent statement from the witness. While it would have been better for the court not to have commented, we \u25a0think the observation made by the court was so apparent to the jury that any error was harmless.\nDefendant contends the court committed reversible error in allowing plaintiff\u2019s witness to testify as an expert witness \u201cthat it was possible that the fire damaged the interior of the engine.\u201d We find no merit in this contention.\nTestimony challenged here was given by plaintiff\u2019s witness Hill. Defendant argues first that the court never declared the witness to be an expert on engines of the type in question but we think the court did so by implication. The record reveals that plaintiff offered the witness as an expert and asked him numerous questions regarding his qualifications. The witness was then asked a hypothetical question, defendant objected, the court overruled the objection and the witness answered. Defendant then moved to strike the answer and the motion was overruled. In 1 Stansbury\u2019s North Carolina Evidence, Brandis Revision, \u00a7 133, p. 431, we find:\n\u201cObjection that the witness is not qualified as an expert is waived if not made in apt time. The absence of a record finding in favor of his qualification is no ground for challenging the ruling implicitly made by the judge in allowing him to testify. In such a case, at least if the record indicates that such a finding could have been made, it will be assumed that the judge found him to be an expert, or that his competency was admitted, or that no question was raised in regard to it.\u201d\nDefendant next argues that under authority of Lockwood v. McCaskill, 262 N.C. 663, 138 S.E. 2d 541 (1964), it was entitled to have the witness\u2019 answer stricken. We disagree. The record reveals that the pertinent hypothetical question was ended as follows:\n\u201cHave you an opinion, satisfactory to yourself, assuming that further, that the jury should find as a fact that after the fire on April 13th, repairs were made to this tractor requiring labor and parts as shown on plaintiff\u2019s Exhibit Number 2. Have you an opinion, satisfactory to yourself, as to whether fire could cause damage to the tractor to the extent that repairs requiring the labor and parts specified in plaintiff\u2019s Exhibit Number 2 would be necessary?\u201d\nThe witness was then asked if he had an opinion, he replied that he did and when asked to give his opinion stated, \u201cI think that it\u2019s possible that the fire would damage the pistons and the sleeves and gaskets and everything about an engine resulting from the heat.\u201d\nDefendant insists that Mr. Hill\u2019s answer violated the North Carolina rule restated in Lockwood that \u201cif the opinion asked for is one relating to cause and effect, the witness should be asked whether in his opinion a particular event or condition could or might have produced the result in question, not whether it did produce such result\u201d; and that Lockwood holds that the \u201ccould or might\u201d stated in the rule refers to probability and not mere possibility.\nIn 1 Stansbury\u2019s North Carolina Evidence, Brandis Revision, \u00a7 137, pp. 453-455, we find:\n\u201cIf the opinion asked for is one relating to cause and effect, the witness should be asked whether in his opinion a particular event or condition could or might- have produced the result in question, not whether it did, produce such result. A question in the latter form has been thought to be objectionable as invading the province of the jury, although a more plausible (but still unconvincing) objection would seem to be that it unwarrantedly excludes the possibility of some other cause not referred to in the hypothetical question. In any event, the rule is an unfortunately technical one, and in several cases the Court has avoided its application by drawing narrow distinctions or by finding that any error in admission was harmless. Though currently a rigid observation of the rule is the only safe course for counsel to follow, it is devoutly to be hoped that the Court will soon find an occasion to abandon it, thus allowing a witness to make a positive assertion of causation when that conforms to his true opinion, reserving \u2018could\u2019 and \u2018might\u2019 for occasions when he feels less certainty.\u201d\nWe do not think Lockwood controls defendant\u2019s contention in the instant case. First, we note that in Lockwood, where plaintiff was seeking recovery for personal injury, plaintiff\u2019s medical expert witness was asked if he had an opinion, based on the hypothesis stated, whether the accident was a \u201ccontributing factor\u201d to plaintiff\u2019s attack of amnesia and depression on a specified date and his inability to carry on his work and business. The witness responded that \u201cit may have had an influence on his condition.\u201d (Emphasis ours.) Although the court restated the rule and used the language set out above, it failed to find error in the question propounded to, and the answer given by, the medical expert.\nIn the second place, the rule addresses itself to the question asked and not necessarily the answer given. It will be noted that in the case sub judice the witness was asked if he had an opinion whether the fire could have caused the damage to the motor complained of. Although the witness used the term \u201cpossible\u201d in his answer, we think the effect of the use of the word in his answer was tempered by the wording of the question.\nIn the third place, we think any error the court committed in not striking the answer was rendered harmless by the testimony given without objection by defendant\u2019s witness O\u2019Neal on cross-examination as follows:\n\u201cOh yes, if it gets hot enough heat can damage. If fire gets hot enough, it can cause a crankshaft to warp, a piston rod to melt, and a piston to crack. Well, if a piston becomes too hot, it can lose its tension in the ring. It\u2019s true that every part that is placed in my bill could have been damaged by fire if it got hot enough . . . . \u201d\nDefendant contends the court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict in the amount of $672.30, the amount tendered by defendant. Defendant argues that plaintiff\u2019s evidence failed to establish a collision claim and yet the jury evidently considered the damages complained of as being caused by a collision of the tractor with timber. This contention has no merit. The policy provided coverage for damage caused by collision or fire and plaintiff\u2019s evidence tended to show that all of the damage complained of was caused by fire and the jury verdict was returned on that contention.\nDefendant contends the court erred in its instructions to the jury. We have carefully reviewed the instructions and conclude that when they are considered as a whole, they are free from reversible error.\nFinally, defendant contends the court erred in entering judgment on the verdict without reducing the amount of the verdict by $100, the amount of \u201cdeductible\u201d set forth in the policy. This contention has merit, therefore, the amount of the judgment is hereby reduced to $2,557.04.\nExcept for the trial court\u2019s failure to give defendant credit for the $100, we find no error in the trial or judgment.\nNo error in trial; judgment modified and affirmed.\nJudges Hedrick and Clark concur.",
        "type": "majority",
        "author": "BRITT, Judge."
      }
    ],
    "attorneys": [
      "Perry, Kittrell, Blackburn & Blackburn, by Charles F. Blackburn, for plaintiff appellee.",
      "Teague, Johnson, Patterson, Dilthey & Clay, byT. Edward Johnson, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "GLEN DOLEN LAWRENCE, T/A LAWRENCE NURSERY v. RELIANCE INSURANCE COMPANY\nNo. 769DC718\n(Filed 2 March 1977)\n1. Insurance \u00a7 76\u2014 fire damage \u2014 cost of repairs \u2014 replacement cost \u2014 cash value\nIn an action to recover under an insurance policy for damages to a tractor allegedly caused by fire wherein it was disputed whether all damages to the tractor were caused by the fire, evidence of the cost of all repairs to the tractor, the purchase price of the tractor, and the fair market value of the tractor before and after the fire was relevant to show that the cost of repairs was less than the cash value or replacement cost within the provision of the policy limiting defendant insurer\u2019s liability under the policy.\n2. Trial \u00a7 10\u2014 expression of opinion \u2014 harmless error\nWhere a witness testified he was not undertaking to tell the jury that he knew the cause of a tractor fire, the trial judge\u2019s comment that he thought \u201cthat\u2019s exactly what he has done\u201d did not constitute a prejudicial expression of opinion on the evidence since the observation made by the court was so apparent to the jury that any error was harmless.\n3. Evidence \u00a7 48 \u2014 qualification of expert \u2014 ruling by implication\nThe trial court by implication ruled that a witness was an expert where plaintiff offered the witness as an expert and asked him questions regarding his qualifications, and the trial court overruled defendant\u2019s objection to a hypothetical question asked the witness.\n4. Evidence \u00a7 49 \u2014 expert testimony \u2014 possible cause\nThe trial court did not err in permitting plaintiff\u2019s expert witness to testify \u201cthat it was possible that the fire damaged the interior of the engine\u201d where the testimony was in response to a question as to whether the fire \u201ccould\u201d have caused the damage to the engine.\n5. Insurance \u00a7 76\u2014 fire damage to tractor \u2014 deductible\nIn an action to recover under an insurance policy for fire damage to a tractor, the trial court erred in entering judgment on the verdict without reducing the amount of the verdict by the amount of a \u201cdeductible\u201d set forth in the policy.\nAppeal by defendant from Peoples, Judge. Judgment entered 7 May 1976 in District Court, Vance County. Heard in the Court of Appeals 10 February 1977.\nIn this action plaintiff seeks to recover under a policy of insurance issued by defendant for damages to his International 150 tractor loader caused by fire or collision. Defendant denied that the damage was caused by fire, alleging that it was caused from the tractor becoming overheated.\nPlaintiff was allowed to amend his complaint to allege in the alternative that the oil pan of his tractor was struck by a piece of timber or similar object, resulting in a bending of the oil pan which in turn caused the piston rod to knock a hole in the pan, allowing dirt to sift through the engine in sufficient quantity to cause extensive damage.\nAt trial the insurance policy was introduced into evidence. Pertinent provisions of the policy indicate coverage for damages caused by fire or collision, with exclusions for losses \u201ccaused by or resulting from mechanical or structural breakage or failure; wear and tear . . . gradual deterioration or depreciation.\u201d The policy also limits defendant\u2019s liability to the actual cash value of the property at the time of the loss, but in no event to exceed the cost of repairs to, or replacement cost of, the machine. Plaintiff offered further evidence tending to show:\nHe purchased the tractor in 1969 for $25,000 and in 1970 purchased the insurance policy in question from defendant. The fair market value of the machine before and after the fire was $17,500 and $14,000 respectively. On 13 April 1971 he loaned the tractor to a neighbor, Charles King, for the purpose of loading some dirt. King\u2019s employee, James Ayscue, drove the tractor about 50 to 75 yards, over some timbers (either two by fours or one by fours) and had loaded one load of dirt when he noticed the engine heating up; he turned the engine off and as he was walking away to get some water for it, he noticed that the tractor was on fire. Ayscue and King poured several buckets of water on the tractor around the engine but the fire continued to burn for some fifteen minutes. The fire appeared to be coming from the belly pan located under the oil pan, both of-which were underneath the tractor. After the fire, oil was seen on the ground under the tractor and the hoses and wires on the engine were burned.\nThe tractor was taken to Raleigh for repairs; after it had been dismantled plaintiff saw that the oil pan had a hole in it and was bent upwards so that the rod would hit it each time it came down. W. H. O\u2019Neal was the foreman in charge of making the repairs and plaintiff paid a bill for the repairs in the amount of $2,657.04.\nAt the time of the fire the tractor had been operated approximately 1100 hours and had never overheated before. The machine had been carefully and regularly maintained by the changing of the oil and air filters at least every three weeks. In the opinion of Willie Hill, accepted by the court as an expert in the field of heavy equipment maintenance, it was possible that a fire on the tractor would damage it to the extent of the repair work specified in the bill paid by plaintiff.\nDefendant\u2019s evidence consisted primarily of the testimony of O\u2019Neal whom the court qualified as an expert on International 150 tractor loaders. He testified in pertinent part: In his opinion the only damage to the tractor caused by fire was the burning of the hoses, wires and paint, the repair of which cost $672.30; and that the other parts which he repaired, the crankshaft, pistons, sleeves and oil pump, were worn out from lack of maintenance and the use of dirty oil. In his opinion the dirt got into the oil through the hole in the oil pan but it probably took two or three days for the dirt to get in and damage the engine. Normally a machine similar to plaintiff\u2019s would go 3,000 to 4,000 hours before needing any major overhaul, but plaintiff\u2019s machine had worn out much quicker due to the dirty oil. Every part listed on the repair bill could have been damaged by fire if it got hot enough, but, in his opinion, in this particular case the main damage was not caused by fire.\nIssues were submitted to and answered by the jury as follows:\n1. Was the plaintiff\u2019s International 150 Tractor damaged by fire within the meaning of the insurance policy as alleged in the complaint?\nAnswer: Yes.\n2. If so, in what amount?\nAnswer : $2,657.04.\n3. Was the plaintiff\u2019s 150 International Tractor damaged by collision within the meaning of the insurance policy as alleged in the complaint?\nAnswer: (No answer)\n4. If so, in what amount?\nAnswer: (No answer)\nFrom judgment entered on the verdict in favor of plaintiff in the sum of $2,657.04, plus interest from date of judgment, and costs, defendant appealed.\nPerry, Kittrell, Blackburn & Blackburn, by Charles F. Blackburn, for plaintiff appellee.\nTeague, Johnson, Patterson, Dilthey & Clay, byT. Edward Johnson, for defendant appellant."
  },
  "file_name": "0414-01",
  "first_page_order": 442,
  "last_page_order": 449
}