82 N.C. App. 21 | N.C. Ct. App. | 1986
Lead Opinion
The only questions presented by defendant’s appeal are whether the court erred in receiving into evidence two exhibits offered by the plaintiff and in ruling that the evidence is sufficient to warrant and support the verdict. In our opinion the court erred in neither respect. As to the sufficiency of the evidence, defendant’s contentions that negligence and proximate cause have not been proven require no discussion, because when this case was here before, Southern Watch Supply Co. v. Regal Chrysler-Plymouth, 69 N.C. App. 164, 316 S.E. 2d 318, disc. rev. denied, 312 N.C. 496, 322 S.E. 2d 560 (1984), we held that plaintiffs forecast of evidence on the negligence and proximate cause issues raised issues of fact for a jury to determine and substantially the same evidence was presented at trial. Johnson v. Southern Railway Co., 257 N.C. 712, 127 S.E. 2d 521 (1962). Even if those issues had not been ruled on earlier it is clear to us that the evidence above stated tends to show that defendant was negligent and that plaintiffs loss proximately resulted therefrom. Defendant’s contention that the verdict as to plaintiffs damages is unsupported by evidence — an issue not raised by the former appeal — will be discussed following our ruling on the admissibility of Plaintiffs Exhibit 7, which concerns the value of the stolen jewelry.
The first exhibit that defendant contends was erroneously received into evidence, Plaintiffs Exhibit 2, consists of the first two pages of the 49-page official record of the Hickory Police Department’s investigation of the jewelry theft here involved. The two pages, entitled Incident/Investigation Report and dated 2-22-80,
On 2-22-80 at 1130 hours Officer Rhyne met with Mr. Paul Yandle at Union Square East Mall parking lot in reference to a breaking and entering of vehicle and larceny from vehicle. Mr. Yandle advised this officer that he parked his vehicle at 1100 hours 2-22-80 in the East Lot of Union Square. At [about] 1120 hours Mr. Yandle stated that he returned to his vehicle to get a sample case out of his trunk. Mr. Yandle advised when he opened the trunk of the vehicle that (4) four sample jewelry cases of assorted jewelry (see itemized list) were missing. Missing were (1) one blue case and (3) brown cases all containing jewelry. Value stolen is listed at $57,338.86 as of Fall 1979 price list.
H.P.D. Evidence Technicians was (sic) called to the scene to process evidence as was (sic) Detectives Wiles and Hunt.
There are no suspects at this time.
Mr. Yandle advised that the vehicle trunk has an alarm, however, the alarm was not set off at the time of the incident.
The exhibit was received into evidence during the testimony of Hickory Police Detective Larry Wiles, who met Officer Rhyne and Yandle in the mall parking lot immediately after the theft was reported and investigated the case for several weeks thereafter. Defendant contends that the report was inadmissible because Officer Wiles did not make it and because it contained hearsay upon hearsay. We disagree for several reasons. First, though Officer Wiles did not make the report, he was there when Yandle was interviewed, the car was examined, the burglar alarm system tested, and the sample case that Yandle had left was examined, and testified: “What is on that report is exactly what I heard.” Second, the exhibit did not violate the hearsay rule because it was not received as evidence that the statements contained therein
Plaintiffs Exhibit 7 is a list of the merchandise which was determined to have been missing from the cases that Mr. Yandle brought back from the entire line. . . . The total amount of the cost of the missing items is calculated here, $59,488.31.
And Mrs. Daniels testified:
Plaintiffs Exhibit 7 is a list that I made of the items missing from Paul Yandle’s sample line at the time of the robbery. It is in my handwriting. I made this total. . . . The total amount according to the wholesale prices that was missing was $59,488.31, and I calculated that amount myself.
In gist, the basis for defendant’s contention that the above stated evidence has no tendency to show that plaintiff suffered any damages at all by the theft of its jewelry, and that a directed verdict or judgment notwithstanding the verdict should have
Voluntary sales of similar property, in the same locality and reasonably near in point of time to the date in question, and the prices at which such sales were made, are generally held admissible to prove the market value of personalty, provided the sales are comparable, and under similar terms and conditions.
32 C.J.S. Evidence Sec. 593(5) (1964). Indeed, we have it on ancient and impeccable authority that under appropriate circumstances the price paid is fair market value evidence of the highest kind, stronger even than an opinion deliberately expressed. In Boggan v. Horne, 97 N.C. 268, 270, 2 S.E. 224 (1887), the court said as to defendant testifying that he paid $75 for the horse involved:
[W]e may consider that as an estimate of value and but an opinion expressed. The actual purchase at the price is an act done in pursuance of an opinion and imparts greater force to it. (Emphasis in original.)
We note that in printing the above the North Carolina Reports (but not the Southeastern Reporter) uses the word not in place of hut — which is a mistake as the rest of the quotation indicates and the original handwritten opinion in the State Archives Library plainly shows. Still earlier, the Court held that:
*30 The price given by the purchaser, and that for which he sold it, do not, conclusively, fix the amount of damages. But it is competent as some evidence of the value of the property at the respective times of the purchase and the sale, and as such the jury had a right to have it.
No error.
Dissenting Opinion
dissenting.
I cannot agree with the majority that the evidence in the record is sufficient to support the verdict that plaintiff was damaged in the sum of $59,488.31. The only evidence in this record as to the value of the stolen jewelry comes from the list prepared by Ms. Daniels. Mr. Ashendorf testified that the value of the items stolen was calculated based on a list of the wholesale values which he had prepared eight months before the loss. It must be remembered that the plaintiff sold the jewelry at wholesale. It is clear that Mr. Ashendorf s figure of $59,488.31 included the price for which the plaintiff had purchased the jewelry plus a reasonable profit. The burden is on the plaintiff to establish the amount of damage it sustained because of the loss of the jewelry due to the negligence of defendants. Since the measure of damages is the fair market value of the jewelry stolen, it does not seem unreasonable to require plaintiff to offer evidence of the fair market value of the jewelry stolen. While the testimony of Mr.