{ "id": 8522384, "name": "DANIEL J. SULLIVAN and wipe, MARY T. SULLIVAN v. K. J. SMITH, Individually and D/B/A K. J. SMITH BUILDERS & REALTY, and GIRRIE M. HOOKER, JR.", "name_abbreviation": "Sullivan v. Smith", "decision_date": "1982-04-06", "docket_number": "No. 8118SC515", "first_page": "525", "last_page": "533", "citations": [ { "type": "official", "cite": "56 N.C. App. 525" } ], "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": "253 S.E. 2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "494" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 487", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551392 ], "year": 1979, "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0487-01" ] }, { "cite": "223 S.E. 2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "29 N.C. App. 91", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554215 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/29/0091-01" ] }, { "cite": "259 S.E. 2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571332, 8571254, 8571226, 8571293, 8571359 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0299-04", "/nc/298/0299-02", "/nc/298/0299-01", "/nc/298/0299-03", "/nc/298/0299-05" ] }, { "cite": "255 S.E. 2d 749", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "41 N.C. App. 694", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551609 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/41/0694-01" ] }, { "cite": "138 S.E. 2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "153" } ], "opinion_index": 0 }, { "cite": "262 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569217 ], "year": 1964, "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0528-01" ] }, { "cite": "159 S.E. 2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1968, "pin_cites": [ { "page": "365" }, { "page": "365" } ], "opinion_index": 0 }, { "cite": "273 N.C. 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574410 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "62" }, { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0059-01" ] }, { "cite": "36 S.E. 166", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1900, "pin_cites": [ { "page": "167" }, { "page": "167" } ], "opinion_index": 0 }, { "cite": "126 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661665 ], "weight": 2, "year": 1900, "pin_cites": [ { "page": "704" } ], "opinion_index": 0, "case_paths": [ "/nc/126/0701-01" ] }, { "cite": "165 S.E. 2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1969, "pin_cites": [ { "page": "354" } ], "opinion_index": 0 }, { "cite": "3 N.C. App. 567", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555888 ], "year": 1969, "pin_cites": [ { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/nc-app/3/0567-01" ] }, { "cite": "54 S.E. 2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "page": "48" } ], "opinion_index": 0 }, { "cite": "230 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631050, 8631021 ], "year": 1949, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc/230/0539-02", "/nc/230/0539-01" ] }, { "cite": "191 S.E. 2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 757", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576706, 8576681, 8576651, 8576692, 8576664 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0757-05", "/nc/281/0757-03", "/nc/281/0757-01", "/nc/281/0757-04", "/nc/281/0757-02" ] }, { "cite": "189 S.E. 2d 749", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "755" } ], "opinion_index": 0 }, { "cite": "15 N.C. App. 15", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547379 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc-app/15/0015-01" ] }, { "cite": "119 S.E. 2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "254 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627220 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/254/0553-01" ] }, { "cite": "113 S.E. 2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "252 N.C. 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621325 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0305-01" ] }, { "cite": "281 S.E. 2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "53 N.C. App. 619", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522880 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/53/0619-01" ] }, { "cite": "201 S.E. 2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563409 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0576-01" ] }, { "cite": "175 S.E. 2d 725", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "9 N.C. App. 140", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548574 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/9/0140-01" ] }, { "cite": "221 S.E. 2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567809 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0246-01" ] } ], "analysis": { "cardinality": 812, "char_count": 19036, "ocr_confidence": 0.814, "pagerank": { "raw": 3.9682459458918745e-07, "percentile": 0.9045467515673694 }, "sha256": "a879dc13b3da47d833d216595dbd10a5123c9bc600d5eece3d410d6b88143502", "simhash": "1:96b341c648751dce", "word_count": 3071 }, "last_updated": "2023-07-14T17:44:21.707745+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Clark and Arnold concur." ], "parties": [ "DANIEL J. SULLIVAN and wipe, MARY T. SULLIVAN v. K. J. SMITH, Individually and D/B/A K. J. SMITH BUILDERS & REALTY, and GIRRIE M. HOOKER, JR." ], "opinions": [ { "text": "WHICHARD, Judge.\nPlaintiffs\u2019 sole contention is that the court erred in granting defendant Smith\u2019s motion for judgment NOV. We agree, and accordingly reverse.\nA motion for judgment NOV \u201cshall be granted if it appears that the motion for directed verdict could properly have been granted.\u201d G.S. 1A-1, Rule 50(b)(1). A directed verdict or a judgment NOV for a defendant is improper when a plaintiffs evidence, taken as true and considered in the light most favorable to him, with all inferences made and contradictions resolved in his favor, is sufficient as a matter of law to justify a verdict for plaintiff. Clark v. Bodycombe, 289 N.C. 246, 221 S.E. 2d 506 (1976); Horton v. Insurance Co., 9 N.C. App. 140, 175 S.E. 2d 725 (1970); see also Dickinson v. Pake, 284 N.C. 576, 201 S.E. 2d 897 (1974); Ridge v. Grimes, 53 N.C. App. 619, 281 S.E. 2d 448 (1981).\nApplying these principles to the evidence here, we find the following:\nA structural engineer who examined the fireplace and chimney testified that the interior fireplace bricks did not constitute \u201csolid masonry construction\u201d due to numerous gaps in the mortar, and that in his opinion the construction thus violated the North Carolina Residential Building Code which \u201cspecifies that a fireplace shall be constructed of solid masonry construction.\u201d See North Carolina Uniform Residential Building Code \u00a7 16(5); North Carolina State Building Code \u00a7 2716. The North Carolina State Building Code, which was in effect when plaintiffs house was constructed, was adopted pursuant to authorization by G.S. 143-138. It thus had the force and effect of a statute, and violation of its provisions constituted negligence per se. Drum v. Bisaner, 252 N.C. 305, 113 S.E. 2d 560 (1960). See also Jenkins v. Electric Co., 254 N.C. 553, 119 S.E. 2d 767 (1961); Lindstrom v. Chesnutt, 15 N.C. App. 15, 189 S.E. 2d 749, cert. denied, 281 N.C. 757, 191 S.E. 2d 361 (1972). The engineer\u2019s testimony thus permitted a finding of negligence in construction of the fireplace.\nFurther evidence permitted both that finding and a finding that the negligent construction proximately caused the fire and resultant damage. A fire department official who inspected the premises after the fire testified that \u201cthere were gaps in some of the bricks, small areas that did not have mortar in them\u201d; that there \u201cwere actually holes going back into the chimney area . . . or the interior of the fireplace\u201d; and that \u201c[t]here were gaps . . . through the layers of brick exceeding twenty-eight inches.\u201d He further testified that in his opinion \u201csome spark . . . traveled through these crevices or openings in the bricks and came to rest on [the] wood . . . causing the fire,\u201d and that \u201can escaping spark or ash from the fireplace flowing upward from any point that it may have e[s]caped the fireplace . . . came in contact with the wooden plate that . . . appeared to have been the longest burning area . . ., igniting the wood or dust or whatever items were there . . . .\u201d\nThe foregoing evidence, in the light most favorable to plaintiffs, permitted a finding that the masonry subcontractor, defendant Hooker, negligently constructed the fireplace, and that this negligent construction proximately caused the fire. The case could go to the jury against the general contractor, defendant Smith, however, only if the evidence permitted a finding that he too violated some duty. \u201cIt is sufficient if by the exercise of reasonable care the defendant might have foreseen that some injury would result from his act o[r] omission or that consequences of a generally injurious nature might have been expected.\u201d McIntyre v. Elevator Co., 230 N.C. 539, 544, 54 S.E. 2d 45, 48 (1949).\nWhen ruling on defendant Smith\u2019s motion for directed verdict, the court stated that it would allow the case to go to the jury on the principle enunciated in Lindstrom v. Chesnutt, supra, \u201cas to whether [defendant Smith] exercised the degree of supervision that a reasonably careful and prudent person would have under the same or similar circumstances.\u201d That ruling was proper, and the subsequent grant of judgment NOV thus was improper.\nIn Lindstrom this Court (and, by denial of certiorari, the Supreme Court) approved, at least implicitly, the following instruction:\n[The contractor] would be responsible for any actions of his subcontractors either in failing to use good quality materials or to construct in a workmanlike manner, or any negligent conduct on their part, if he knew or reasonably should have known as general contractor or builder of the house of those conditions. He is not to be responsible for any such things which a reasonable man in his position as builder and contractor of the house would not have discovered, but the mere fact that work was done by a subcontractor does not relieve the contractor of responsibility if he by the exercise of reasonable care knew or should have known of those conditions.\nLindstrom, 15 N.C. App. at 23, 189 S.E. 2d at 755. Plaintiffs presented evidence which permitted a jury finding that defendant Smith, as a reasonably careful and prudent contractor under the circumstances, knew or should have known of the defective workmanship of his subcontractor, defendant Hooker. Defendant Hooker testified that he \u201csaw [defendant Smith] on the job from time to time during the two weeks that [he] built [the] chimney and fireplace,\u201d but that he \u201cnever saw him looking at the work [Hooker] was doing.\u201d He further testified that the exterior brick work was visible while it was under construction; that the exterior and interior bricks \u201cgo [up] together\u201d; that other contractors \u201cusually [went] up and look[ed] at the work outside of the fireplace and chimney that they [could] see\u201d when he first did a job for them; and that this was the first job he had done for defendant Smith.\n\u201cThe standard of care is a part of the law of the case for the court to explain and apply. The degree of care required, under the particular circumstances, to measure up to the standard is for the jury to decide.\u201d Tindle v. Denny, 3 N.C. App. 567, 570, 165 S.E. 2d 351, 354 (1969). Here the court established as the standard of care the conduct of \u201ca reasonable] . . . and prudent contractor . . . under the same or similar circumstances.\u201d It instructed that to adjudge defendant Smith negligent the jury had to find that (1) the fireplace was constructed by defendant Hooker in a negligent manner, (2) this negligent construction was the proximate cause of the fire, and (3) defendant Smith, as the general contractor, knew or reasonably should have known of defendant Hooker\u2019s negligence, that knowledge being what a reasonably careful and prudent contractor would have known under the same or similar circumstances. It was for the jury to determine, pursuant to these proper instructions as to the standard of care, whether the evidence showed that the degree of care exercised by defendant Smith \u201cmeasured] up\u201d to the standard. Id.\nDefendant Smith\u2019s argument that the motion for judgment NOV was properly granted because the evidence tended to show that his \u201cstandard of conduct . . . was the same standard that builders in the . . . area adopted or adhered to and there was no breach of this standard or deviation from same\u201d is unavailing. Defendant Hooker\u2019s testimony that other contractors \u201cusually look[ed] around\u201d his work on the first job he performed for them, and that defendant Smith had not, contradicted the evidence to which defendant Smith refers. Further, a finding of no breach of duty as a matter of law would not necessarily follow from uncon-tradicted evidence that defendant Smith observed the standard of care followed by other builders in the area.\n[T]he better view ... is that of the great majority of the cases, that every custom is not conclusive merely because it is a custom, and that it must meet the challenge of \u201clearned reason,\u201d and be given only the evidentiary weight which the situation deserves. It follows that where common knowledge and ordinary judgment will recognize unreasonable danger, what everyone does may be found to be negligent ....\nW. Prosser, Law of Torts \u00a7 33 at 167-68 (4th ed. 1971).\nNothing else appearing, then, plaintiffs\u2019 evidence, taken as true and considered in the light most favorable to them, with all inferences made and contradictions resolved in their favor, was sufficient as a matter of law to support jury findings that defendant Hooker negligently constructed the fireplace, that this negligent construction proximately caused plaintiffs\u2019 damage, and that defendant Smith breached his duty to act as a reasonably careful and prudent contractor under the circumstances.\nDefendant Smith contends that judgment NOV was nevertheless proper because plaintiffs\u2019 release of defendant Hooker also operated to release defendant Smith. The release specifically provided the contrary. It stated: \u201cThis Release applies only to the parties named above [i.e., defendant Hooker, his employees, insurer, heirs, representatives, and assigns] and shall not apply to K. J. Smith, individually or doing business as K. J. Smith Builders & Realty, or to any other person, corporation or entity.\u201d Defendant Smith thus was not released unless the instrument, despite its express provision to the contrary, effected his release as a matter of law. It did not.\nDefendant Smith contends that because defendant Hooker \u201cis entitled to be relieved of defending a cross-action by [defendant Smith], . . . Smith is deprived of his right of indemnification which arises as a matter of law, [and] the party responsible voluntarily for the extinguishment of the rights of indemnification of . . . Smith, namely, the plaintiffs, must sustain a dismissal as to the defendant Smith.\u201d He relies primarily on Brown v. Louisburg, 126 N.C. 701, 36 S.E. 166 (1900). Brown is in apposite, and the argument is without merit.\nIn Brown the individual defendant constructed an excavation abutting the municipal defendant\u2019s sidewalk. The municipal defendant knew of the excavation, but had no active part in creating it. Plaintiff fell into the excavation and was injured. During pendency of the action plaintiff released the individual defendant. The court held that under these facts the municipal defendant could recover from the individual defendant any sum which plaintiff obtained from it, and that the court thus \u201cshould have instructed . . . that upon the evidence the plaintiff could not recover.\u201d Brown, 126 N.C. at 704, 36 S.E. at 167. The court stated:\nThe defendants were not . . . joint tort feasors. To make persons joint tort feasors they must actively participate in the act which causes the injury. The [municipal defendant] had no active part in . . . creating the nuisance. The authorities . . . knew, or ought to have known, of the excavation in the street; but [the individual defendant] did not act under the directions of [the municipal defendant], nor were his acts in any way for its benefit.\nId. at 703, 36 S.E. at 167.\nHere, by contrast, there was evidence from which the jury could find that both defendants were actively negligent and that they thus were joint tortfeasors. Defendant Hooker had a duty to use good quality materials and to construct in a workmanlike manner. Defendant Smith had an independent duty of supervision which required that he oversee the proper performance by defendant Hooker of Hooker\u2019s duty. Lindstrom v. Chesnutt, supra. Further, unlike in Brown, defendant Hooker did act or should have acted under the direction of defendant Smith; and the acts of defendant Hooker were performed for defendant Smith\u2019s benefit.\nA right to indemnity arises in cases of primary-secondary liability, ie., when two persons\n(1) . . . are jointly and severally liable to the plaintiff . . . and (2) either (a) one has been passively negligent but is exposed to liability through the active negligence of the other or (b) one alone has done the act which produced the injury but the other is derivatively liable for the negligence of the former.\nHendricks v. Fay, Inc., 273 N.C. 59, 62, 159 S.E. 2d 362, 365 (1968). See also Edwards v. Hamill, 262 N.C. 528, 531, 138 S.E. 2d 151, 153 (1964). This is not such a case. The evidence did not establish conclusively that defendant Smith was \u201cpassively negligent but . . . exposed to liability through the active negligence of [defendant Hooker].\u201d Hendricks, 273 N.C. at 62, 159 S.E. 2d at 365. Rather, it permitted a finding that defendant Smith was himself actively negligent in the exercise of, or failure to exercise, his duty of supervision of defendant Hooker. Further, it was stipulated that defendant Hooker \u201cat all times . . . was acting as an independent subcontractor of [defendant Smith].\u201d \u201c[I]t has long been . . . the general rule that there is no vicarious liability upon the employer\u201d for the torts of an independent contractor. Id. Hence, defendant Smith was not \u201cderivatively liable\u201d for the negligence of defendant Hooker.\nDefendant Smith, then, was not entitled to indemnification from defendant Hooker. The evidence permitted findings that both defendants were actively negligent; that neither was derivatively liable through the other; and that both were responsible for plaintiffs\u2019 damages. The effect of plaintiffs\u2019 release of defendant Hooker is thus governed by the following from the Uniform Contribution among Tort-Feasors Act:\nWhen a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury . . . [i]t does not discharge any of the other tort-feasors from liability for the injury . . . unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater ....\nG.S. IB-4 (1967). As noted above, the release here did not by its terms discharge defendant Smith, but instead expressly excluded him from its operation. He thus was not thereby discharged from liability. Id.\nPlaintiffs\u2019 motion for a new trial on grounds of inadequate damages was addressed to the sound discretion of the trial court, and the ruling thereon will not be set aside except upon a showing of abuse of discretion. Railway Co. v. Fibres, Inc., 41 N.C. App. 694, 255 S.E. 2d 749, cert. denied, 298 N.C. 299, 259 S.E. 2d 302 (1979); Gwaltney v. Keaton, 29 N.C. App. 91, 223 S.E. 2d 506 (1976). The jury returned a verdict for plaintiffs of $10,000. There was evidence that the fire reduced the fair market value of plaintiffs\u2019 house from $71,000 to $12,000. There was also evidence that the fire completely destroyed personal property in the house having a fair market value of over $47,000, and that plaintiffs incurred lodging expenses of $2,231.84 w;hile their home was being repaired. In light of this evidence, the award of a new trial on the issue of damages in the event the judgment NOV did not stand was not an abuse of discretion.\nThe issue of whether to limit the new trial to the issue of damages is likewise \u201cdirected to the sound discretion of the trial judge.\u201d Lazenby v. Godwin, 40 N.C. App. 487, 496, 253 S.E. 2d 489, 494 (1979). No abuse of discretion has been shown in so limiting the new trial conditionally granted here.\nFor the foregoing reasons, the judgment NOV is reversed, and the cause is remanded to the trial court for a new trial on the issue of damages only.\nReversed and remanded.\nJudges Clark and Arnold concur.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Smith, Moore, Smith, Schell & Hunter, by Stephen W. Earp and Alan W. Duncan, for plaintiff appellants.", "Benjamin D. Haines for defendant appellee, K. J. Smith, Individually and d/b/a K. J. Smith Builders & Realty." ], "corrections": "", "head_matter": "DANIEL J. SULLIVAN and wipe, MARY T. SULLIVAN v. K. J. SMITH, Individually and D/B/A K. J. SMITH BUILDERS & REALTY, and GIRRIE M. HOOKER, JR.\nNo. 8118SC515\n(Filed 6 April 1982)\n1. Negligence \u00a7 2\u2014 negligence in performance of construction \u2014 judgment n.o.v. improper\nIn an action in which plaintiff homeowner sought damages resulting from a fire in the fireplace which defendant subcontractor constructed under the guidance of defendant contractor, the trial court erred in granting judgment n.o.v. for defendant contractor. Plaintiffs\u2019 evidence was sufficient as a matter of law to support jury findings that defendant subcontractor negligently constructed the fireplace, that this negligent construction proximately caused plaintiffs\u2019 damage, and that defendant contractor breached his duty to act as a reasonably careful and prudent contractor under the circumstances in that he knew or should have known of the defective workmanship of his subcontractor.\n2. Indemnity \u00a7 3; Master and Servant \u00a7 21 \u2014liability of contractor independent of subcontractor \u2014no right of indemnification\nIn an action concerning the negligent construction of a fireplace, plaintiffs\u2019 release of the subcontractor did not operate to release the contractor since the contractor was not entitled to indemnification from the subcontractor. The evidence permitted findings that both defendants were actively negligent; that neither was derivatively liable through the other; and that both were responsible for plaintiffs\u2019 damages. The release did not by its terms discharge the contractor, but instead expressly excluded him from its operation.\n3. Trial \u00a7 52\u2014 new trial on grounds of inadequate damages \u2014 trial court\u2019s discretion\nThe award of a new trial on the issue of damages was not an abuse of discretion where the jury returned a verdict for plaintiffs of $10,000 and in light of evidence that a fire caused by defendants\u2019 negligent supervision in the construction of plaintiffs\u2019 fireplace reduced the fair market value of plaintiffs\u2019 house from $71,000 to $12,000; that the fire completely destroyed personal property in the house having a fair market value of over $47,000; and that plaintiffs incurred lodging expenses of $2,231.84 while their home was being repaired.\nAPPEAL by plaintiff from Collier, Judge. Order entered 23 February 1981 in Superior Court, GUILFORD County. Heard in the Court of Appeals 13 January 1982.\nDefendant Smith was the general contractor on a house which plaintiffs purchased from his original vendees. Smith had hired defendant Hooker, a masonry subcontractor, to construct the fireplace and chimney. Plaintiffs sought from both defendants damages resulting from a fire in the fireplace which spread to adjacent wooden structures. Defendant Smith cross-claimed for indemnity from defendant Hooker.\nBefore trial plaintiffs released defendant Hooker and voluntarily dismissed their action against him. The court ordered dismissal of defendant Smith\u2019s cross-claim.\nFollowing a verdict for plaintiffs the court granted defendant Smith\u2019s motion for judgment notwithstanding the verdict (hereafter \u201cjudgment NOV\u201d) and conditionally granted plaintiffs\u2019 motion for a new trial on the issue of damages should the judgment NOV be vacated or reversed.\nPlaintiffs appeal from the granting of judgment NOV.\nSmith, Moore, Smith, Schell & Hunter, by Stephen W. Earp and Alan W. Duncan, for plaintiff appellants.\nBenjamin D. Haines for defendant appellee, K. J. Smith, Individually and d/b/a K. J. Smith Builders & Realty." }, "file_name": "0525-01", "first_page_order": 557, "last_page_order": 565 }