Sims v. Virginia Homes Manufacturing Corp.

231 S.E.2d 287, 32 N.C. App. 193, 1977 N.C. App. LEXIS 1881
CourtCourt of Appeals of North Carolina
DecidedJanuary 19, 1977
DocketNo. 7610SC512
StatusPublished
Cited by1 cases

This text of 231 S.E.2d 287 (Sims v. Virginia Homes Manufacturing Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sims v. Virginia Homes Manufacturing Corp., 231 S.E.2d 287, 32 N.C. App. 193, 1977 N.C. App. LEXIS 1881 (N.C. Ct. App. 1977).

Opinion

BROCK, Chief Judge.

Defendant Virginia has raised thirty-six assignments of error based on two hundred thirteen exceptions. Thirty-four assignments were brought forward in defendant’s brief for argument. These assignments of error take issue with virtually every phase of the trial proceedings except the presentation of defendant’s own evidence. From this welter of argument, two questions emerge.

First, did the trial judge commit reversible error in his jury charge by failing to declare and explain the law arising on the evidence and by failing to relate the law of negligence and [195]*195damages to the facts in the case? General Statute 1A-1, Rule 51(a) states:

“In charging the jury in any action governed by these rules, no judge shall give an opinion whether a fact is fully or sufficiently proved, that being the true office and province of the jury, but he shall declare and explain the law arising on the evidence given in the case. The judge shall not be required to state such evidence except to the extent necessary to explain the application of the law thereto; provided, the judge shall give equal stress to the contentions of the various parties.”

In its thirty-third assignment of error, defendant argues that the judge failed to explain the law of negligence arising on the evidence. The judge’s instructions, covering twelve pages of the record, were organized in the following manner. The jury was first charged on the plaintiffs’ burden of proof, followed by instructions on the law of negligence, which included explanations of duty of care, standard of care, breach of duty of care, injury, proximate cause, and foreseeability. Thereafter, the judge reviewed portions of both plaintiffs’ and defendant’s evidence. In reviewing plaintiffs’ evidence, he related testimony concerning many defects in the units delivered to and installed for the plaintiffs.

Immediately succeeding his review of the evidence, the judge instructed the jury on the application of the law to the evidence as follows:

“Now on the first issue, members of the jury, I instruct you that if the Plaintiffs have satisfied you by the greater weight of the evidence that the Defendant, or its workman, failed to use good and proper materials, or failed to use due care in manufacturing the structure or mobile home according to specifications, or failed to do the work in a workmanlike manner, or failed to use due care in installing the structure on the Plaintiff’s lot; that such conduct would constitute negligence and if the Plaintiffs have further satisfied you by the greater weight of the evidence, that such negligence in any one or more of these respects was the proximate cause of damages to the Plaintiffs, it will be your duty to answer the first issue yes.”

This charge is adequate. In recounting plaintiffs’ testimony just prior to the charge quoted above, the judge related evidence of [196]*196faulty plumbing, faulty wiring, sub-specification fixtures and appliances, and instability in the floors and walls. The evidence, if believed by the jury, was sufficient to permit the jury to find the defendant negligent under the quoted charge.

In the thirty-fifth assignment of error, defendant argues that the court failed to properly explain the law of damages arising on the evidence. The trial judge charged the jury as follows:

“Now on that second issue, I instruct you that all damages, that if you reach and consider that issue, that all damages naturally and proximately resulting from the Defendant’s negligence, it would be the difference in the fair market value of the mobile home and had there been no negligence of the Defendant, and its fair market value in the condition it was in when delivered and installed; and fair market value means the price that property will bring when it is offered for sale by one who is willing to sell but under no compulsion to do so, and it’s purchased by one who is ready, able and willing to buy, but under no necessity of buying.”

This charge on the measure of damages conforms to the general rule of damages for injury to personal property. 3 Strong, N. C. Index 2d, Damages, § 4, p. 170.

Defendant argues that the charge is not specific enough on the elements of time, place, and condition of the structure. The lack of the degree of specificity desired by the defendant is not error. Where the charge as to the measure of damages is not inherently erroneous, a defendant cannot complain of the instruction when he failed to request amplifications of the instruction given. Brown v. Griffin, 263 N.C. 61, 138 S.E. 2d 823 (1964); Owenby v. R. R., 165 N.C. 641, 81 S.E. 997 (1914). In the case at bar the trial judge, at the end of his charge, asked the parties if they desired further instructions. The defendant asked for no further amplification.

Defendant also argues that the judge failed to relate pertinent facts while charging on the measure of damages. Thus, it is argued that the jury had insufficient evidence on which to base a measurement. During his review of plaintiffs’ evidence, just prior to his charge on applying the law of negligence, the judge stated the injuries testified to by the plaintiffs along with [197]*197the evidence tending to show the fair market value of the trailer with and without the alleged negligent acts. Where the court reviews in detail the evidence of plaintiff’s injuries, the failure to repeat such evidence in stating the rule for the ad-measurement of damages will not be error. Dinkins v. Booe, 252 N.C. 731, 114 S.E. 2d 672 (1960); 3 Strong, N. C. Index 2d, Damages, § 16, p. 193.

Defendant further argues that in two places the judge misstated evidence amounting to a comment or opinion on the facts in violation of G.S. 1A-1, Rule 51(a). In one instance the judge stated that defendant’s own expert witness testified that the units were improperly installed, where in reality the witness had not so testified. We find no error here because the judge immediately caught his error and stated to the jury that the witness had not testified in the manner charged.

In the second instance plaintiffs had testified that in installing the units, defendant’s employees, in order to correct the alignment of the two units, placed a board against one unit and drove a truck against the board and unit repeatedly to push the unit flush with the other. In relating this evidence to the jury in his charge, the judge, while stating that a truck was used to bump one unit together with the other, inadvertently failed to state that a board had been used as a buffer. We do not find this error prejudicial; furthermore, an inadvertence by the court in recapitulating the evidence will not be grounds for reversible error unless it is called to the attention of the court in time for correction. Clay v. Garner, 16 N.C. App. 510, 192 S.E. 2d 672 (1972); Boring v. Mitchell, 5 N.C. App. 550, 169 S.E. 2d 79 (1969). At the end of his charge, the trial judge gave the parties an opportunity to request corrections and further instructions. Plaintiffs availed themselves of this opportunity, but defendant declined to do so.

The second major question raised in this appeal concerns the trial court’s failure to submit to the jury an issue of contributory negligence. Defendant requested the issue, but the judge refused the request.

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Bluebook (online)
231 S.E.2d 287, 32 N.C. App. 193, 1977 N.C. App. LEXIS 1881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sims-v-virginia-homes-manufacturing-corp-ncctapp-1977.