Apex Tire and Rubber Co. v. Merritt Tire Co.

153 S.E.2d 737 (1967)

270 N.C. 50

APEX TIRE AND RUBBER COMPANY, a corporation v. MERRITT TIRE COMPANY, Incorporated, a corporation, J. H. Merritt and wife, Jane N. Merritt, and J. P. Pugh and wife, Sue W. Pugh.

No. 288.

Supreme Court of North Carolina.

April 12, 1967.

*739 Clayton, Lane & Helms, by H. Parks Helms, Charlotte, for plaintiff appellant.

Ruff, Perry, Bond, Cobb & Wade, by Wm. H. McNair, Charlotte, for defendant appellees.

HIGGINS, Justice.

The plaintiff, as ground for a new trial, places its reliance on two assignments of error: (1) (a) Without finding them qualified as experts, the Court permitted the defendant's witnesses Pugh and Alvy to testify that the defects in the recapping resulted from the separation of the gum cushion from the tread stock and not from a separation of the gum cushion from the carcass; and (b) the Court's failure to find the plaintiff's witness Bolt to be an expert. (2) The Court gave erroneous instructions as to the measure of damages.

The defendant's witnesses Pugh and Alvy were shown to have had long experience in the sale and the use of materials in recapping motor vehicle tires. They ran tests using the defendant's equipment and the materials bought from plaintiff. While the Court did not specifically find they were experts and able to testify as such, nevertheless the Court permitted them to testify as to the tests they ran and to express opinions as to the cause of the failures which developed. The admission of testimony is the subject of plaintiff's Assignment of Error No. 1.

In discussing the evidence of the witnesses Pugh and Alvy, it should be remembered they had examined the material as it came from the plaintiff's plant; they ran tests using defendant's equipment and the material just as it came from the plaintiff. They were not answering hypothetical questions but testifying as to the results of these tests. Their experience was such as to qualify them to run the tests, and to testify as to the results. "When the facts upon which an expert bases his opinion are within his own knowledge he `will be permitted to testify directly as to what in his opinion caused a particular occurrence or condition, and is not restricted, as in case of answers to hypothetical questions, to stating what might or could have caused it.'" Perfecting Service Co. v. Product Development & Sales Co., 259 N.C. 400, 131 S.E.2d 9, and 38 A.L.R.2d, Opinion Evidence, Page 39. The Court, over objection, permitted the witness to testify, giving his findings and conclusions. Implicit in this admission is a holding the witness was qualified to express the opinion. "(T)he rule with us is that the failure of the trial judge to specifically find that a witness is an expert before allowing him to give expert testimony will not sustain a general objection to his opinion evidence * * * if there is evidence in the record upon which the court could have based a finding * * * it will be assumed that the court found the witness to be an expert * * *." Teague v. Duke Power Co., 258 *740 N.C. 759, 129 S.E.2d 507. The Court did not commit error by permitting the witnesses to testify in the manner disclosed by the record.

The plaintiff offered John C. Bolt, Jr. as a witness. He testified that for the past 4 years he had been employed by the plaintiff as supervisor of its "sales and business in the southern region". He described in detail the process employed by the plaintiff in the fabrication of its tread stock and method of attaching the cushion gum thereto. He had experience in recapping. Plaintiff's counsel made this request of the Court: "I'd like to tender this man as an expert witness." The Court replied: "No sir, it is a matter for the jury to decide what credit they will give to his testimony." Counsel moved the Court to declare the witness to be an expert without limitation as to the field of his expert knowledge. The Court denied the motion. However, the Court permitted the witness to testify in great detail about the materials and techniques involved in recapping, including the various steps in preparing the materials. He gave as his opinion the separation of the tread stock from the gum cushion resulted from overheating or uneven heating in the recapping process and that this took place in the defendant's plant. While the Court did not announce its finding the witness was an expert (without limitation as to field), nevertheless the witness was permitted to run the entire scale of materials and steps in the recapping process and gave his opinion as to the cause of the defects which developed. By admitting the evidence, the Court held in effect that the witness was an expert in the field covered by his testimony. Such is the holding in Teague v. Duke Power Co., supra. That case is authority applicable both to the plaintiff's and the defendant's expert testimony. The Court permitted the witnesses for both parties to testify upon equal terms. Nothing was excluded.

Finally, the plaintiff finds fault with the Court's charge on the measure of damages. Ordinarily, the measure of damages in breach of warranty cases is the difference in the value of the article as warranted and as actually delivered.

The defendant, on the counterclaim, alleged (1) it agreed to pay $3,410.41 for the materials which were actually worthless and it is entitled to judgment for that amount, plus interest; (2) as special or consequential damages, defendant is entitled to recover $2,620 actually returned to its customers by reason of the defects which developed in the recapped tires. In this case, however, the defendant actually bought and retained recapping materials for 650 automobile tires and 150 truck tires. Before the defects developed the defendant paid $1,910.41 on the account. After the defects developed a part of the material was returned to the plaintiff and the defendant's account credited, leaving a balance of $1500 unpaid. Defects developed in 370 of the automobile tires and 77 of the truck tires. The defendant was actually required to expend the sum of $2,620 to make good these defects. Whether the other 290 automobile tire and 73 truck tires were defective is not disclosed. Further complaints may or may not come in as to them. "For a breach of contract the injured party is entitled as compensation therefor to be placed, insofar as this can be done by money, in the same position he would have occupied if the contract had been performed." Perfecting Service Co. v. Product Development & Sales Co., supra; Tillis v. Calvine Cotton Mills, Inc., 251 N.C. 359, 111 S.E.2d 606. Judge McLean seems to have concluded the defendant may not recover more than his consequential damages and actual loss in paying refunds, and instructed the jury it could not award more than $2,620 on the counterclaim. The Court gave the instruction that if the jury answered the second issue, the answer could in no event exceed $2,620.

The Court's limitation of recovery to the loss resulting from the defects in 370 automobile tires and 77 truck tires does not take into account any additional losses *741 which may yet show up in other tires. Conceding the charge on the measure of damages on the counterclaim was not exactly in accordance with the proper rules, in that it limited defendant's recovery to its actual out-of-pocket expenses paid on refunds, nevertheless the limitation on recovery is not shown to be prejudicial to the plaintiff. The defendant, not having appealed, cannot complain. Prejudice to the appellant is not shown. Technical error is not sufficient. It must be shown to be harmful to the appellant. Dinkins v. Booe, 252 N.C. 731, 114 S.E.2d 672; Ray v. French Broad Electric Membership Corp., 252 N.C. 380, 113 S.E.2d 806.

After careful review we conclude error prejudicial to the defendant is not shown.

No Error.