Plaintiff’s assignments of error raise these questions: (1) Are findings of fact 9 and 10 repugnant, thereby making it impossible to base a judgment on the facts found? (2) Was there prejudicial error in the admission of evidence over plaintiff’s objections?
A judgment cannot be based on inconsistent and repugnant factual conclusions. It matters not whether the facts are determined by jury verdict or made by the court acting as a jury. 89 C.J.S. 468. When a judgment has been entered on seemingly inconsistent findings of fact, it is the duty of the reviewing court to reconcile the findings and uphold the judgment if practicable.
Bradham v. Robinson,
The complaint states a cause of action based on the way the Rogers building was removed, not the fact of removal. Plaintiff alleges: “Instead of taking precaution to prevent injury and damages to the wall and building of the plaintiffs, the defendants used great force and violence . . . caused the roof to leak, knocked great holes in the wall of plaintiffs’ building, causing same to crack in many places . . .” The complaint states a cause of action for injuries negligently inflicted. The case was tried on that theory. Plaintiff, in stating the questions for consideration by this Court, speaks of “a negligent damage to a brick business building.” Finding 8 establishes the negligence of defendants.
A review of the evidence discloses sharp conflict with respect to the extent of the damage done to the roof and the wall by the demolition of the Rogers building. Particularly was this true with respect to two cracks running from the top to the bottom of plaintiff’s wall. Did these cracks exist before the demolition of the Rogers building or were they caused by the work then done? Defendants maintain they
Defendants would not be liable in damages because the removal of the Rogers building disclosed the decrepit condition of the Davis wall, nor would they be liable for a differing and changed use of the Rogers property so long as that use was a proper and legal use.
The ninth finding is primarily based on the testimony of plaintiff’s witness Johnson. He testified that the market value of plaintiff’s property before the removal of the Rogers building was $32,000 and $20,500 immediately following the removal. He did not say this diminution in value was due to any negligence of defendants. He testified: “Its (the Davis building) adaptability for what he has been using it for is not the same it was before the construction of the parking lot. The elements are causing quite a bit of damage in the building . . .”
When viewed in the light of the evidence, it is, we think, apparent that the court in finding 9 was dealing with all factors causing a diminution in value of plaintiff’s property, both those resulting from negligence of defendant and those resulting from changed use of the adjacent property and the disclosure of defects hidden and only apparent when the Rogers building was taken away. Those due to the negligence of defendants are compensable. The others are damnum abéque injuña. The court did not indicate that the difference in value stated in finding 9 was caused by negligence of defendants. It proceeded with the next finding to determine the amount of damages caused by defendants’ negligence, and for the damages negligently done it entered judgment in plaintiff’s favor.
Plaintiff, without fixing in dollars and cents her estimate of damage tortiously inflicted, had testified to the condition of the building when purchased and the repairs and improvements subsequently made. On cross-examination she said she and her husband purchased in 1942. She was then asked if the purchase price was not $5,000. Plaintiff objected. The objection was overruled. She answered that the purchase price was $5,870. We think the question was competent on cross-examination. A similar conclusion was reached in
Palmer v. Highway Comm.,
Two witnesses having many years of engineering and construction experience testified to the cracks in plaintiff’s wall. These witnesses, over plaintiff’s objection, expressed their opinion as to the cause of the cracks. The witness Yon Oesen testified without objection: “(T)he wall had broken in two places and was showing signs of settlement and the mortar bond between the brick was disintegrated and the mortar itself was coming out of most joints. It had several areas where minor cracks had developed and brick sections had cracked. The wall is fairly plumb, but it had settled towards the river in a longitudinal direction along the line of the wall, and it had two fissures or cracks that were very wide open, and
This assignment of error does not warrant another trial. The evidence seemingly is, in view of the witness’s prior testimony, competent; but if it were not proper to call for opinion as to the cause of settling, the evidence could not be prejudicial since the witness had previously and without objection expressed the opinion that settling had occurred many years prior to the demolition of the Rogers building. If so, the cause of settling could in no manner relate to the liability of defendants. New trials are not awarded because of technical error. The error must be prejudicial.
Parks v. Washington,
No error.