Smith v. Lumberton Motors, Inc. , 34 N.C. App. 727 ( 1977 )

239 S.E.2d 608 (1977) 34 N.C. App. 727

Catherine Byrd SMITH and Garland Smith
v.
LUMBERTON MOTORS, INCORPORATED and Ford Motor Company.

No. 7716SC23.

Court of Appeals of North Carolina.

December 21, 1977.

Lee & Lee by Martha K. Walston, Lumberton, for plaintiffs-appellants.

Page & Britt by W. Earl Britt, Lumberton, for defendant-appellee, Lumberton Motors, Inc.

McLean, Stacy, Henry & McLean by William S. McLean, Lumberton, for defendant-appellee, Ford Motor Co.

VAUGHN, Judge.

The briefs filed on behalf of all of the parties are, in substantial part, devoted to arguments relating to the existence, validity and applicability of warranties and to the alleged negligence of defendants. If our view of the evidence is correct, however, it is not necessary to reach those questions. Whatever plaintiffs' theory, they must show that something defendants did or neglected to do was a proximate cause of their injury. We conclude that they have shown no causal connection between their loss and the defendants. There is evidence that the automobile was destroyed by fire but no evidence as to what caused the fire.

There is evidence that the automobile did not run properly either before it was purchased or during the five thousand miles that Smith elected to operate it. There is, however, no evidence of what defect, if any, there was that prevented the car from running properly. The testimony of plaintiffs' expert witness did not help them. He first saw the burned automobile about three years after the fire. There is no indication that his personal examination revealed anything about the cause of the fire. He did testify that "the defective condition that existed in the automobile on the date of its purchase was probably the cause of the fire which ensued some time later." His answer was in response to a hypothetical question which asked him to assume that "a defective condition existed in or about the engine" of the vehicle on the day it was purchased. The answer adds nothing to plaintiffs' case. If he meant that any defective condition that existed probably caused the fire, his assertion is incredible and without probative force. If he was referring to a particular defect that might have existed, his testimony is silent with respect thereto.

The opinion of an expert is to assist the jury in evaluating matters in evidence. The expert witness may not supply an evidentiary fact not in evidence and beyond the personal knowledge of the expert, under the guise of an expert opinion. Hubbard v. Oil Co., 268 N.C. 489, 151 S.E.2d 71 (1966); Keith v. Gas Co., 266 N.C. 119, 146 S.E.2d 7 (1966).

The recall notice referred to earlier is, in pertinent part, as follows:

"We have found that certain parts within the distributor in the ignition system on your 1973 Ford or Lincoln-Mercury product could exhibit unacceptable wear during normal operation. This wear could then result in a gradual deviation from the ignition setting specified for your particular vehicle.

To correct this wear problem, we have developed a special clip that fits inside the distributor. This clip is designed to reduce wear to the affected distributor parts and at the same time help maintain the specified ignition setting."

The recall notice does not provide the necessary causal link between defendants' conduct and the fire. There was no evidence, including that from the expert witness, that the condition described in the notice could have caused the fire. Moreover, plaintiffs' evidence negates any such inference. Plaintiffs' new automobile did not run properly at the time it was purchased. Any possible trouble from the matter described in the recall notice would develop gradually.

There was no evidence that any act of Lumberton Motors caused the fire. Smith was told within one week of the purchase of the car that his engine difficulty would have to be diagnosed by a factory representative and could not be corrected locally. Notwithstanding this, plaintiffs elected to keep the car and operate it for two months and for almost 5,000 miles. Nor is there any evidence to suggest that the extra holes that Horne put in the breather cap caused the fire.

In summary, if plaintiffs are to recover in either contract or tort, they must show a causal connection between defendants' alleged misfeasance and their injury. We conclude that plaintiffs have failed to carry that burden. See e. g., Kekelis v. Machine Works, 273 N.C. 439, 160 S.E.2d 320 (1968); Insurance Co. v. Chevrolet Co., 253 N.C. 243, 116 S.E.2d 780 (1960); Harward v. General Motors Corp., 235 N.C. 88, 68 S.E.2d 855 (1952); Burbage v. Suppliers Corp., 21 N.C.App. 615, 205 S.E.2d 622 (1974); Williams v. General Motors Corp., 19 N.C.App. 337, 198 S.E.2d 766 (1973); Coakly v. Ford Motor Co., 11 N.C.App. 636, 182 S.E.2d 260 (1971).

The judgment is affirmed.

Affirmed.

MORRIS and CLARK, JJ., concur.