Teague v. Duke Power Company , 258 N.C. 759 ( 1963 )

129 S.E.2d 507 (1963) 258 N.C. 759

Owen H. TEAGUE and wife, Bertha V. Teague
v.
DUKE POWER COMPANY and Harrison-Wright Company.

No. 524.

Supreme Court of North Carolina.

February 27, 1963.

L. T. Hammond and Deane F. Bell, Asheboro, for plaintiffs.

James B. Lovelace, High Point, for Harrison-Wright Construction Co., defendant.

G. E. Miller, Miller & Beck, Asheboro, for Duke Power Co., defendant.

SHARP, Justice.

Plaintiffs offered the evidence of Mrs. Teague that when Mr. Brown came to cut the wire after the fire he first told her the wires from the pole to the house were not energized, but a short time later he came back to say "that those wires were hot, and he couldn't understand what the boys meant by running the wires to the house; it was a fuse job, after the wires had been completed and it has been inspected." Defendants' objection to this evidence was sustained, and its exclusion constitutes plaintiffs' first assignment of error. The evidence was clearly incompetent.

"It is the rule with us that what an agent or employee says, relative to an act presently being done by him within the scope of his agency or employment, is admissible as a part of the res gestae, and may be offered in evidence, either for or against the principal or employer, but what the agent or employee says afterwards, and merely narrative of a past occurrence, though his agency or employment may continue as to other matters, or generally, is only hearsay and is not competent as against the principal or employer." Hubbard v. Southern R. R. Co., 203 N.C. 675, 166 S.E. 802.

Joseph E. Fennell, Electrical Superintendent of the Durham District of Duke Power Company was found by the court to be an expert electrical engineer. Herbert Weeks, an electrical contractor not connected with defendants, was found to be an expert in electrical power line construction. Plaintiffs' assignments of error 32 through 36 relate to the opinion evidence of these two experts. Fennell, in answer to a hypothetical question, testified that if the jury should find the installation of wires from the service pole to the plaintiffs' house to have been made in the manner defendants' evidence tended to show, in his opinion, the installation could not have caused the fire; and if, between September 18th and October 5th the two insulated wires were caused to hang downward from the neutral wire, they could not have caused the fire. He further testified that there was "no lack of safety in a properly insulated wire." Weeks testified, in answer to a hypothetical question, that the attachment of the wires to the southeast corner of plaintiffs' residence, if made as detailed by defendants' witnesses, was safe and in keeping with the customary practice in the electrical construction business. It is noted, that on cross-examination plaintiffs did not propound a hypothetical question which assumed the facts to be as plaintiffs' evidence tended to show.

"Persons skilled in matters relating to electricity may state inferences or judgments with respect to such matters, as, for example, whether certain electrical equipment is defective or unsafe; the proper construction of electrical equipment; whether certain construction was negligent; whether certain equipment was maintained in accordance with the standards of practice; the cause of a certain result; the effect of certain occurrences; and other matters." 32 C.J.S. Evidence § 530a.

Fennell and Weeks testified as expert electricians; the evidence was competent. Assignments of error 32 through 36 are overruled. Lynn v. Pinehurst Silk Mills, 208 N.C. 7, 179 S.E. 11.

The cases cited by the defendants, in which opinion evidence as to the cause of fires or other damage to property was excluded, involved the opinions of nonexpert or lay witnesses which, the Court said, were worth no more than any one else's. Kerner v. Southern R. R. Co., 170 N.C. 94, 86 S.E. 998. In such instances, lay witnesses are not permitted to invade the prerogative of the jury. Wood v. Michigan Millers Mutual Fire Insurance Co., 243 N. C. 158, 90 S.E.2d 310. However, an expert in a particular field may give his opinion, based on personal observation or in answer to a properly framed hypothetical question, that a particular event or situation could or could not have produced the result in question. Stansbury, Section 137.

Defendants' evidence tended to show that the day after the fire, H. K. Davis, District Manager of Duke Power Company; Joe F. Connor, Construction Superintendent for Harrison-Wright Construction Company; F. J. Fitts, Line Foreman for Duke Power Company; and J. C. Vuncannon, Claim Agent of Duke Power Company, went to the premises and made an investigation. About fifteen feet from the southeast corner of the house they found a piece of screw hook, a bail, and several pieces of a broken porcelain insulator. These were the same kind and type which defendants had attached to the Teague residence and were introduced in evidence as defendants' Exhibit 8.

After examining the metal hook and the four pieces of porcelain constituting defendants' Exhibit 8, Weeks testified, over objection, that in his opinion it had not been subjected to an electrical arc or fire; that an electrical burn would have left it pitted and it would show blue marks.

W. M. Dickerson, an electrical lineman for Harrison-Wright Company also examined Exhibit 8. Without objection, he testified as follows: "That was the same kind used at the Teague place. You can tell whether or not a short has been made on that spool. You can tell by pitted marks in the metal or in the spool there will be sort of flash burn. I do not see any of that. I can tell whether an electrical burn has been made on the spool by the same way. I do not see any of that."

Over plaintiffs' objection, defendants' witness, H. K. Davis, the district manager of Duke Power Company, thirty-five years with the company, gave the same testimony.

Joe F. Connor, for sixteen years an electrical construction superintendent for Harrison-Wright Construction Company testified to the same effect—over objection on direct examination, and in answer to specific questions by plaintiffs' counsel on crossexamination. Plaintiffs' assignments of error 7 through 13 and 37 through 38 are to the admission of this evidence.

Exhibit 8 was properly introduced in evidence. The jury examined it, and it was proper for the electricians to interpret the condition for them. However, the record contains no specific finding by the judge that Davis, Dickerson, and Connor were electrical experts, and plaintiffs contend that their testimony "invaded the province of the jury."

These assignments of error cannot be sustained.

Weeks, an adjudicated expert, had given the same testimony and Dickerson's evidence went in without objection. In re Will of Knight, 250 N.C. 634, 109 S.E.2d 470. Nevertheless, the rule with us is that the failure of the trial judge to specifically find that the witness is an expert before allowing him to give expert testimony will not sustain a general objection to his opinion evidence if it is in response to an otherwise competent question, and if there is evidence in the record on which the court could have based a finding that the witness had expert qualifications. In such a case, it will be assumed that the court found the witness to be an expert; otherwise, it would not have permitted him to answer the question. Stansbury, Evidence, Section 133; State v. Atlantic Ice & Coal Co., 210 N.C. 742, 188 S.E. 412; Summerlin v. Carolina & N. W. R. R. Co., 133 N.C. 550, 551, 45 S.E. 898; Brewer v. Ring and Valk, 177 N.C. 476, 486, 99 S.E. 358.

When the opinion of a witness is called for before the court has made a specific finding that he is an expert, if counsel wish to question the witness' qualifications, they should object specifically on this ground. If they confined themselves to a general objection it will be considered as applying only to the competency of the particular question; but the rule is otherwise if there is no evidence of the witness' special knowledge or expert qualifications. State v. Secrest, 80 N.C. 450; Bivings v. Gosnell, 141 N.C. 341, 53 S.E. 861.

Plaintiffs argue that the testimony of the electricians amounted to positive statements rather than expressions of opinion. However, we think that the testimony of each was a statement of his opinion and that the jury could only have considered it as such. Some positive statements can, in the nature of things, be only expressions of opinion. A man who comes upon a piece of plank beside the ashes of a dead bonfire and says, "This piece of wood did not get in the fire," is necessarily expressing an opinion based on the present condition of the plank he then sees since he was not there at the time that the fire was burning.

Connor also testified, over objection, that contact with metal or another live wire was necessary to cause a short circuit. Plaintiffs' assignments of error 26 and 27 refer to this evidence. In giving this testimony Connor was not giving an opinion; he was merely stating a more generally known fact about electricity.

All of plaintiffs' assignments of error have been considered and plaintiffs have failed to show prejudicial error. The charge, when read contextually, fairly presents the case to the jury under the applicable principles of law. The jury found the facts in accordance with the evidence of defendants and on plaintiffs' appeal we find no error.

The defendants' appeal is dismissed. Only a party aggrieved may appeal from the Superior Court to the Supreme Court. G.S. § 1-271. Since the judgment of the Superior Court in their favor remains undisturbed, defendants cannot be called parties aggrieved. Starnes v. Tyson, 226 N.C. 395, 38 S.E.2d 211.

No error.