{ "id": 8567883, "name": "CLAUDE WHITAKER v. HERBERT R. EARNHARDT", "name_abbreviation": "Whitaker v. Earnhardt", "decision_date": "1976-01-29", "docket_number": "No. 73", "first_page": "260", "last_page": "268", "citations": [ { "type": "official", "cite": "289 N.C. 260" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "145 P. 619", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "83 Wash. 451", "category": "reporters:state", "reporter": "Wash.", "case_ids": [ 604235 ], "opinion_index": 0, "case_paths": [ "/wash/83/0451-01" ] }, { "cite": "19 A.L.R. 2d 1015", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "202 Okla. 687", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 8902320 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/okla/202/0687-01" ] }, { "cite": "340 P. 2d 929", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10493057 ], "opinion_index": 0, "case_paths": [ "/p2d/340/0929-01" ] }, { "cite": "254 Iowa 396", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2353118 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/iowa/254/0396-01" ] }, { "cite": "90 P. 942", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "151 Cal. 209", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2085360 ], "opinion_index": 0, "case_paths": [ "/cal/151/0209-01" ] }, { "cite": "175 A.L.R. 159", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "28 Ariz. 397", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 4976043 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ariz/28/0397-01" ] }, { "cite": "142 N.W. 416", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "160 Iowa 701", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2197798 ], "opinion_index": 0, "case_paths": [ "/iowa/160/0701-01" ] }, { "cite": "211 Ark. 951", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1473345 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/211/0951-01" ] }, { "cite": "93 S.E. 461", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "174 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11253074 ], "opinion_index": 0, "case_paths": [ "/nc/174/0193-01" ] }, { "cite": "82 N.C. 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682843 ], "opinion_index": 0, "case_paths": [ "/nc/82/0292-01" ] }, { "cite": "51 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277213 ], "opinion_index": 0, "case_paths": [ "/nc/51/0225-01" ] }, { "cite": "8 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276143 ], "opinion_index": 0, "case_paths": [ "/nc/8/0315-01" ] }, { "cite": "128 S.E. 2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "258 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560322 ], "opinion_index": 0, "case_paths": [ "/nc/258/0271-01" ] }, { "cite": "163 S.E. 2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "274 N.C. 362", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560125 ], "opinion_index": 0, "case_paths": [ "/nc/274/0362-01" ] }, { "cite": "157 S.E. 2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "271 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565497 ], "opinion_index": 0, "case_paths": [ "/nc/271/0568-01" ] }, { "cite": "161 S.E. 2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "273 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576028 ], "opinion_index": 0, "case_paths": [ "/nc/273/0658-01" ] }, { "cite": "187 S.E. 2d 52", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "280 N.C. 600", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573011 ], "opinion_index": 0, "case_paths": [ "/nc/280/0600-01" ] }, { "cite": "180 S.E. 2d 149", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560592 ], "opinion_index": 0, "case_paths": [ "/nc/278/0428-01" ] }, { "cite": "194 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "282 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568004 ], "opinion_index": 0, "case_paths": [ "/nc/282/0610-01" ] }, { "cite": "180 S.E. 2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560580 ], "opinion_index": 0, "case_paths": [ "/nc/278/0390-01" ] }, { "cite": "104 F. 2d 695", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1059994 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/f2d/104/0695-01" ] }, { "cite": "62 S.Ct. 107", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1939, "opinion_index": 0 }, { "cite": "86 L.Ed. 525", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1939, "opinion_index": 0 }, { "cite": "314 U.S. 656", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6159833, 6159722, 6159779, 6159879 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/us/314/0656-03", "/us/314/0656-01", "/us/314/0656-02", "/us/314/0656-04" ] }, { "cite": "118 F. 2d 338", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 472807 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/f2d/118/0338-01" ] }, { "cite": "140 F. 2d 31", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3693996 ], "opinion_index": 0, "case_paths": [ "/f2d/140/0031-01" ] }, { "cite": "58 S.E. 2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631162 ], "opinion_index": 0, "case_paths": [ "/nc/231/0577-01" ] }, { "cite": "137 S.E. 2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "262 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568090 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/262/0438-01" ] }, { "cite": "141 S.E. 2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "264 N.C. 252", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572577 ], "opinion_index": 0, "case_paths": [ "/nc/264/0252-01" ] }, { "cite": "148 S.E. 2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "267 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559804 ], "opinion_index": 0, "case_paths": [ "/nc/267/0528-01" ] } ], "analysis": { "cardinality": 835, "char_count": 17935, "ocr_confidence": 0.684, "pagerank": { "raw": 1.070981686021247e-06, "percentile": 0.9847960247875456 }, "sha256": "e656e27aeba49669f891c113f5f4d1c6bec54119b6645678c904b0bea5e3f3ee", "simhash": "1:d76175303ecf28dd", "word_count": 3121 }, "last_updated": "2023-07-14T21:21:01.191113+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CLAUDE WHITAKER v. HERBERT R. EARNHARDT" ], "opinions": [ { "text": "BRANCH, Justice.\nDefendant did not except to the trial judge\u2019s findings of fact or contend by specific assignment of error that the evidence did not support the findings of the trial judge. The Court of Appeals affirmed the judgment of the trial judge on the ground that his findings were unchallenged. In so ruling the Court of Appeals relied upon the following rule of law:\nDefendant has not taken exception to any finding of fact made by the trial judge. In the absence of proper exceptions to the findings of fact by the trial judge, the appeal presents for review only the question whether the findings of fact support the conclusions of law and the entry of the judgment. 1 Strong, N. C. Index 2d Appeal and Error \u00a7 26 (1967). In the absence of proper exceptions to the findings of fact, exceptions to the admission of evidence, as well as exceptions to rulings of the judge in denying defendant\u2019s motions to dismiss, are ineffectual. . . .\nWe are advertent to the decisions of this Court which adopt and approve this rule. See Nationwide Homes of Raleigh, Inc. v. First Citizens Bank and Trust Co., 267 N.C. 528, 148 S.E. 2d 693; Keeter v. Lake Lure, 264 N.C. 252, 141 S.E. 2d 634; Taney v. Brown, 262 N.C. 438, 137 S.E. 2d 827; Burnsville v. Boone, 231 N.C. 577, 58 S.E. 2d 351. However, the rule seems to be in direct conflict with the provisions of G.S. 1A-1, Rule 52 (c) which provides:\nWhen findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may be raised on appeal whether or not the party raising the question has made in the trial court an objection to such findings or has made a motion to amend them or a motion for judgment, or a request for specific findings.\nG.S. 1A-1, Rule 52(c) became effective on 1 January 1970. According to our research the last time this Court considered and applied the rule relied upon by the Court of Appeals was in the case of Nationwide Homes of Raleigh, Inc. v. First Citizens Bank and Trust Co., supra, which was filed on 16 June 1966. This conflict poses a question of first impression for this Court. Our Rule 52(c) is nearly identical to the Federal Rule 52 (b) and we, therefore, turn to the Federal Courts\u2019 interpretation of their rule for guidance.\nThe Ninth Circuit Court of Appeals considered a similar question in the case of Monaghan v. Hill, 140 F. 2d 31, and there Stephens, J., speaking for the Court, stated:\nAppellee moves to dismiss the appeal or to affirm the order of the District Court on the ground that appellant made no objections and took no exceptions to the order or to the findings of fact and conclusions of law of the trial court, submitted no proposed findings and conclusions in lieu of those adopted, and requested no amendments to the same. The motion is denied. Appellant outlined her objections in her statement of points on appeal. That she made no prior mention of them is immaterial under the provisions of Rule 52 of Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c: (2) \u201cIn all actions tried upon the facts without a jury, * * *. Requests for findings are not necessary for purposes of review. * * *\u201d (b) \u201c* * * When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the district court an objection to such findings or has made a motion to amend them or a motion for judgment.\u201d . . .\nAccord: Bingham Pump Co., Inc. v. Edwards, 118 F. 2d 338 (9th Cir. 1941) cert. denied 314 U.S. 656, 86 L.Ed. 525, 62 S.Ct. 107; Hill v. Ohio Casualty Ins. Co., 104 F. 2d 695 (6th Cir. 1939) ; 5A Moore\u2019s Federal Pracetice \u00b6 52.10; 9 Wright & Miller, Federal Practice and Procedure \u00a7 2581.\nThe plain language of our Rule 52 (c) and the interpretation placed upon their rule by the Federal Courts leads us to conclude that defendant\u2019s failure to except to the findings of the trial judge did not necessarily preclude appellate review on the question of whether the evidence supported the findings of fact. Nevertheless, it was incumbent upon appellant to assign error so as to outline his objections on appeal. Other than assignments of error directed to rulings of the trial court on admission of evidence, defendant\u2019s only assignments of error were that: (1) the court erred in denying defendant\u2019s motion for a directed verdict at the close of plaintiff\u2019s evidence, (2) the court erred in denying defendant\u2019s motion for a judgment for defendant and for a directed verdict at the end of all the evidence, (3) the action of the court in denying defendant\u2019s motion for a dismissal and (4) the action of the trial court in denying defendant\u2019s motion for a judgment n.o.v.\nIt is obvious that defendant\u2019s motion for judgment n.o.v. was feckless. The motion for judgment n.o.v. must be preceded by a motion for a directed verdict which is improper in non-jury trials. G.S. 1A-1, Rule 50(b). Obviously the motion for judgment n.o.v. is inappropriate when addressed to the trier of fact.\nIt is now well established that in a civil action tried without a jury, the former motion for nonsuit has been replaced by the motion for dismissal. G.S. 1A-1, Rule 41 (b). A motion for a directed verdict is appropriate in cases tried by jury. G.S. 1A-1, Rule 50; Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297. However, we will treat defendant\u2019s motions for directed verdicts as motions for dismissal.\nThe motion to dismiss differs from the former motion for judgment as for nonsuit in that the lodging of a motion to dismiss under Rule 41(b) permits the trial judge to weigh the evidence, find facts against plaintiff and sustain defendant\u2019s motion at the conclusion of plaintiff\u2019s evidence even though plaintiff may have made out a prima facie case which would have repelled the motion for nonsuit under the former practice. In case of a motion to dismiss, the trial judge may decline to render judgment until all the evidence is in. In our view, this is the better practice \u201cexcept in the clearest cases.\u201d Helms v. Rea, 282 N.C. 610, 194 S.E. 2d 1; Phillips\u2019 1970 Supplement to 1 McIntosh North Carolina Practice and Procedure \u00a7 1375; see also 5 Moore\u2019s Federal Practice 2d Ed. \u00b6 41.13 [4],\nIn the case before us, the motion to dismiss was of little significance since defendant offered no evidence. At this point the trial judge was required to find facts, state separately his conclusions of law and enter judgment. G.S. 1A-1, Rule 52(a) (1). Coggins v. City of Asheville, 278 N.C. 428, 180 S.E. 2d 149. Defendant\u2019s notice of appeal and exception to the entry of this judgment presents the face of the record for review including the question of whether the facts found support the judgment and whether the judgment is regular in form. Hall v. Board of Elections, 280 N.C. 600, 187 S.E. 2d 52; Sternberger v. Tannenbaum, 273 N.C. 658, 161 S.E. 2d 116; London v. London, 271 N.C. 568, 157 S.E. 2d 90. When the trial judge sits as the trier of facts, his judgment will not be disturbed on the theory that the evidence did not support his findings of fact if there be any evidence to support the judgment.\nPlaintiff introduced competent evidence which tended to show: Plaintiff leased fifteen acres of land from L. H. Foster and during the summer of 1973 all fifteen acres were planted with soybeans. Defendant owned a tract of land adjacent to plaintiff\u2019s field. Defendant used this land to graze some of his cattle which were the only cattle kept in this area. The 1,600-foot common boundary was separated by a poor grade cedar post and barbed wire fence that was in a poor state of repair. The barbed wire was old and rusty. Plaintiff, on numerous occasions, told defendant that the fence was incapable of containing defendant\u2019s cattle. In July 1973, plaintiff inspected his soybean crop and found it undamaged. A subsequent inspection in August revealed that cattle and calves had eaten and trampled approximately two acres of plaintiff\u2019s soybean crop. When plaintiff harvested his soybeans in November 1973, he unsuccessfully attempted to harvest soybeans from the damaged two acres, but the other 13 acres yielded 40 bushels per acre. On the day the soybeans were harvested, the market price of soybeans was $5.25 per bushel.\nIn our opinion this evidence is sufficient to support the trial judge\u2019s conclusion \u201c[t]hat the defendant was negligent in that he failed to keep his fence in a state of repair that would prohibit the cattle grazing on his land from escaping from his land and roaming at large.\u201d Therefore, the Court of Appeals correctly affirmed the trial judge\u2019s determination as to actionable negligence.\nWe nevertheless find merit in Judge Hedrick\u2019s dissent. Defendant\u2019s exception to entry of judgment also presents the question of whether the facts found will support the trial judge\u2019s legal conclusion \u201cthat as a result of defendant\u2019s negligence the plaintiff was damaged in the amount of $420.\u201d Fishing Pier v. Town of Carolina Beach, 274 N.C. 362, 163 S.E. 2d 363; Taney v. Brown, 262 N.C. 438, 137 S.E. 2d 827; Schloss v. Jamison, 258 N.C. 271, 128 S.E. 2d 590.\nThere is a paucity of North Carolina authority on the question of the measure of damages in cases involving injury to or destruction of growing crops. The North Carolina cases which have considered the measure of damages to growing crops are sparse and rather uninformative. In the early case of Denby v. Hairston, 8 N.C. 315, this Court approved an instruction that plaintiff was entitled to recover from defendant-trespasser the highest price the crops were worth. This case did not give any indication as to the time in which the value would be ascertained. The case of Sanderlin v. Shaw, 51 N.C. 225, stands for the proposition that evidence may be admitted to show what the price of growing crops would have been at maturity. The Court, in Roberts v. Cole, 82 N.C. 292, allowed recovery for such sum as would cover \u201cthe injury done to the crops before the plaintiff knew of the irruption of the hogs and had time to drive them out.\u201d In the case of Dixon v. Grand Lodge, 174 N.C. 193, 93 S.E. 461, plaintiff sought damages for destruction of crops by defendant\u2019s trespassing animal's. There the Court very briefly stated: \u201cThe court properly charged that the damages, if the jury found that damages were sustained by the negligence of defendant, were the reasonable value of the crop destroyed.\u201d\nThese North Carolina cases are generally consistent with the widely accepted rule that the measure of damages for destruction of crops is the value of the crop at the time and place of destruction, and by the same token, the measure for crops injured but not totally destroyed is the diminution in the value of the crop at the time and place of injury. Dobbs Handbook of the Law of Remedies \u00a7 5.2 at 325; Farm Bureau Lumber Company v. McMillan, 211 Ark. 951; 203 S.W. 2d 398; Brous v. Wabash R. Co., 160 Iowa 701, 142 N.W. 416; Beville v. Allen, 28 Ariz. 397, 237 P. 184. See Annotation: Measure of Damages for Injury to and Destruction of Growing Crops, 175 A.L.R. 159. However, ordinary or annual growing crops often have no ascertainable market value in the field. A practical method for ascertaining damages to growing crops when injured or destroyed in the field is stated in Dobbs Remedies CROPS \u00a7 5.2, page 325 as follows:\n. . . Absent specific testimony as to the value of the crop in the field, courts generally make no practical use of the stated measure of damage. Instead they usually award the plaintiff the market value of the lost portion of his crop, as measured at maturity of the crop, less the cost he would have had in harvesting and marketing the lost portion. Under this formula, the plaintiff must prove not only how much was destroyed and its market value at maturity, but also what his probable cost of harvesting and marketing would have been as to the destroyed or damages portion. . . .\nA similar rule is stated in 21 Am. Jur. 2d CROPS \u00a7 76, page 663, to wit:\nIt is the absence of market value generally which necessitates the adoption of some method of calculating the reasonable actual value of a growing crop in the field. The most widely accepted method of arriving at the value of a growing crop at the time of its destruction, assuming that it had no market value, is: (1) to estimate the probable yield had the crop not been destroyed; (2) calculate the value of that yield in the market; and (3) deduct the value and amount of labor and expense which subsequently to, and but for, the destruction would have been required to mature, care for, and market the crop. . . . Teller v. Bay & R. Dredging Co., 151 Cal. 209, 90 P. 942; Eppling v. Seuntjens, 254 Iowa 396, 117 N.W. 2d 820; Cities Service Gas Co. v. Christian (Okla.) 340 P. 2d 929; Franklin Drilling Co. v. Jackson, 202 Okla. 687, 217 P. 2d 816, 19 A.L.R. 2d 1015; Berg v. Yakima Valley Canal Co., 83 Wash. 451, 145 P. 619.\nHere there was no testimony as to the value of the growing crop at the time and place of its destruction. The evidence as to damages tended to show that two acres of soybeans were destroyed in August 1973 by defendant\u2019s cattle, and the remaining portions of the crop in the same field yielded forty bushels per acre when harvested' in November of the same year. Further that the local market price for soybeans in November 1978 was $5.25 per bushel.\nIn awarding damages in the amount of $420 to plaintiff it is evident that the trial judge merely multiplied the estimated yield of the destroyed two acres by the local market price at the time of harvest. No consideration was given to labor and expenses which would have been required to \u201cmature, care for and market the crop.\u201d This was error.\nFor reasons stated, the judgment is vacated and this cause is remanded to the Court of Appeals with direction that it be returned to the District Court in Rowan County with instruction that there be a new trial in accord with this opinion on the single issue of damages.\nAffirmed in part and reversed in part.", "type": "majority", "author": "BRANCH, Justice." } ], "attorneys": [ "Robert M. Davis for defendant appellant.", "No counsel contra." ], "corrections": "", "head_matter": "CLAUDE WHITAKER v. HERBERT R. EARNHARDT\nNo. 73\n(Filed 29 January 1976)\n1. Appeal and Error \u00a7 26; Rules of Civil Procedure \u00a7 52 \u2014 failure to except to findings \u2014 sufficiency of evidence to support findings \u2014 appellate review\nThe failure to except to the findings of the trial judge does not necessarily preclude appellate review on the question of whether the evidence supported the findings of fact. G.S. 1A-1, Rule 52(c).\n2. Rules of Civil Procedure \u00a7 50\u2014 nonjury trial \u2014 motion for judgment n.o.v.\nA motion for judgment n.o.v. is inappropriate in a case tried by the court without a jury. G.S. 1A-1, Rule 50(b).\n\u0430. Rules of Civil Procedure \u00a7 41 \u2014 motion to dismiss\nThe lodging of a motion to dismiss under Rule 41(b) permits the trial judge to weigh the evidence, find facts against plaintiff and sustain defendant\u2019s motion at the conclusion of plaintiff\u2019s evidence even though plaintiff may have made out a prima facie case which would have repelled the motion for nonsuit under the former practice.\n4. Rules of Civil Procedure \u00a7 41 \u2014 motion to dismiss \u2014 judgment after all evidence\nIn case of a motion to dismiss, it is the better practice for the trial judge to decline to render judgment until all the evidence is in except in the clearest cases.\n5. Animals \u00a7 3 \u2014 escape by cattle \u2014 damage to crops \u2014 negligence\nThe evidence was sufficient to support the trial court\u2019s determination that defendant was negligent in failing to keep his fence in a state of repair so as to prevent cattle grazing on his land from escaping and damaging plaintiff\u2019s soybean crop where it tended to show that defendant used land next to plaintiff\u2019s soybean crop for grazing cattle which were the only cattle kept in this area, the 1600-foot common boundary between plaintiff\u2019s crop and defendant\u2019s land was separated by a cedar post and barbed wire fence that was in a poor state of repair, plaintiff on numerous occasions told defendant the fence was incapable of containing defendant\u2019s cattle, in July 1973 plaintiff inspected his soybean crop and found it undamaged, and a subsequent inspection in August revealed that cattle had eaten and trampled two acres of plaintiff\u2019s soybean crop.\n\u0431. Damages \u00a7 4\u2014 damages to crops \u2014 market value \u2014 deductions for expenses\nThe trial court erred in awarding as damages for two acres of growing soybeans destroyed by cattle the local market price of the expected yield of the two acres without deducting expenses which would have been required to mature, care for and market the crop.\nAppeal by defendant pursuant to G.S. 7A-30 (2) from decision of the Court of Appeals which affirmed judgment entered by Grant, District Judge, in Rowan District Court on 23 January 1975.\nPlaintiff instituted this action seeking damages for destruction of his soybean crop by cattle which he alleged defendant negligently allowed to run at large. His damaged crop grew on land located near Mahaley Road in Rowan County.\nDefendant\u2019s answer admitted ownership of land on Mahaley Road in Rowan County, and that he kept cattle on this land at various times. His answer otherwise amounted to a general denial of plaintiff\u2019s allegations.\nThe case was heard by Judge Grant sitting without a jury. At the close of plaintiff\u2019s evidence, defendant moved for a directed verdict which was denied. Defendant then rested without offering evidence and again moved for a directed verdict which was denied. The trial judge found facts, stated his conclusions of law and entered judgment for plaintiff in the amount of $420. Defendant then moved for judgment n.o.v. which was denied.\nThe Court of Appeals, in an opinion by Chief Judge Brock, concurred in by Judge Morris, affirmed. Judge Hedrick dissented on the question of damages.\nRobert M. Davis for defendant appellant.\nNo counsel contra." }, "file_name": "0260-01", "first_page_order": 280, "last_page_order": 288 }