Appellants-tenants Cunningham, Paynter, Shirley, and Serino brought suit against appellee-landlord for damages resulting from a fire in their apartment building. The court granted defendant-landlord’s motion for a directed verdict against all appellants on the ground that damages had not been proved as a matter of law. On appeal, we affirm as to appellants Cunningham and Paynter; we reverse as to appellants Shirley and Serino.
1. "An opinion as to value based solely on cost price is inadmissible in evidence as it has no probative value.”
Hoard v. Wiley,
"The plain language of [Code Ann. §§ 38-1708 and 38-1709] precludes an owner from testifying to the value of his goods in a single or gross amount without 'giving his reasons therefor’ or else showing that he had 'an opportunity for forming a correct opinion.’
’’Hoard,
supra, p. 332. Merely listing the damaged items, along with a monetary figure estimating replacement cost based entirely upon the original purchase price (as was done in this case) is not sufficient evidence to establish damages under the law, as "[t]he cost of property alone is insufficient proof of market value.”
Mills v. Mangum,
"[I]f coupled properly with other evidence such as a showing of the condition of the item both at the time of purchase and at the time its value is in issue, [the cost price of an item] may be admitted as an
element
upon which an opinion may be formed as to the item’s value.”
Hoard,
supra, p. 334. Accord,
King v. Sinyard,
2. In several enumerations of error, appellants Cunningham and Paynter assert that the court improperly excluded various exhibits offered to establish damages. As these exhibits were subject to the same infirmities as the oral testimony, the exhibits were insufficient to establish damages. This being so, their exclusion, if error, was harmless. As we are reversing the directed verdict against appellants Shirley and Serino (see Division 4 of this opinion), we need not consider whether the exclusion of exhibits related to their loss of property was error.
3. Appellants Cunningham and Paynter urge that the trial court committed reversible error in refusing to allow oral testimony as to each individual item damaged by the fire. As the record fails to support these appellants’ contentions, we find no error.
Although the court attempted to restrict value testimony to listing damaged items and giving an opinion as to the total loss sustained, the record shows that such testimony was permitted in spite of the court’s ruling. Counsel was also permitted to recall witnesses to establish damages. As to these appellants, no attempt was made to elicit testimony as to the description of individual items or damage thereto, and no testimony was excluded. (We note that testimony which was elicited failed to establish a proper basis for opinion testimony as to aggregate value of the loss sustained.)
4. However, as appellants Shirley and Serino properly established some measure of damages, a directed verdict as to these plaintiffs was improper.
Sisk v. Carney,
Although Ms. Shirley’s estimate of the fair market value of the coat at the time of the fire was equal to its purchase price, Ms. Shirley’s explanation or reasons for her estimate of the coat’s fair market value established a sufficient basis for value determination so as to preclude a directed verdict in favor of the defendant. Under this testimony, the question of the coat’s value was properly one for jury consideration. See
Sisk,
supra;
Hagin v. Powers,
As appellant Serino established the cost of repairing some of his property damaged in the fire (i.e., the cost of cleaning smoke-damaged clothing), a directed verdict as to appellant Serino was also improper.
Southeastern Express Co. v. Chambers,
5. Contrary to appellee’s contentions, the directed verdict against plaintiffs Shirley and Serino was not proper for any other reason assigned.
A. Appellee contends that the directed verdict should be upheld on the grounds that no probative evidence linking the fire with acts of the appellee or her agents had been adduced at trial. We disagree.
Defendant’s contentions to the contrary notwithstanding, competent evidence of causation was presented. At the time of the fire, Willie Wimberly, defendant’s employee, stated to an investigating fire officer that the fire started after Wimberly attempted to burn cobwebs with a gasoline torch. This testimony was probative evidence of the fire’s causation, properly admitted as part of the res gestae. See
Land v. McClure,
B. Appellee contends that a directed verdict was
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proper, as appellants Shirley and Serino failed, as a matter of law, to prove that the alleged negligent acts of appellee’s employee were committed within the scope of his employment. As the evidence on the question of whether Mr. Wimberly’s act of ridding the basement of cobwebs was within the scope of his employment as janitor for appellee (or only a slight deviation which nevertheless could fairly be regarded as within the scope of his employment) was conflicting, the issue should have been submitted for jury determination.
Parker v. Smith,
Contrary to appellee’s assertions, appellants Shirley and Serino did state a claim for negligent employment/retention in Count 2 of their complaint.
C. K. Security Systems, Inc. v. Hartford Acc. &c. Co.,
Judgment affirmed as to appellants Cunningham and Paynter; reversed as to appellants Shirley and Serino.