Opinion
No. 27
Filed 26 November 1974
1. Damages 4 — injury to personalty — measure of damages The measure of damages for injury to personal property is the difference between the market value immediately before and immediately after the injury.
2. Damages 16 — stock of merchandise — instructions on damages The trial court in its instructions stated to the jury the correct rule to govern their determination of the amount of damages in an action against a city to recover for damage done to a stock of merchandise by the infiltration of dust and dirt as a result of sidewalk reconstruction work.
ON certiorari to the Court of Appeals to review its decision filed April 3, 1974 ( 21 N.C. App. 168, 203 S.E.2d 653) granting a new trial in this civil action tried in the Superior Court of FORSYTH County at the May 7, 1973 Session before Collier, J.
Hudson, Petree, Stockton, Stockton Robinson by Norwood Robinson and George L. Little, Jr. for plaintiff appellants.
Deal, Hutchins and Minor by William K. Davis and Thomas R. Crawford for defendant Appellee.
Chief Justice BOBBITT not sitting.
Justice SHARP dissenting.
Justice BRANCH joins in the dissenting opinion.
The plaintiffs instituted the action to recover damages to their stock of merchandise caused by the negligent and careless manner in which the agents of the City of Winston-Salem, by the use of air hammers and pressure tools, broke through the concrete sidewalk, causing the dust and debris to filter into the vault under the sidewalk, thence into the three stories of the building in which the goods were stored.
The complaint alleged:
"V. That the agents or employees of the defendant performed the work they were doing in a careless and negligent manner without taking any precautions to prevent the old sidewalk from caving into a vault under said sidewalk, the presence of which vault was known to agents or employees of the defendant. The improper use of the machinery being used by the agents or employees of the defendant, or the failure of the agents or employees of the defendant to support the old sidewalk, or both caused the old sidewalk to drop into the vault with the result that the entire premises was filled with dust, dirt, and debris.
* * * * *
"VI. 2. They failed to take proper precautions to avoid the caving in of the sidewalk after inspecting the foundation under said sidewalk when they knew or should have known that said sidewalk was unsupported and would cave in when air hammers or other power machinery were used on it."
The complaint further alleged that the defendant failed to take proper precautions against the spill of dirt and debris into the plaintiffs' building:
"IX. That the merchandise located on the premises had a fair market value prior to the damage of Sixty-Six Thousand Six Hundred Eighty-Four and 07/100 Dollars ($66,684.07). The fair market value of said merchandise after the damage was Eighteen Thousand Three Hundred Thirty-Five Dollars ($18,335.00). Therefore, said merchandise was damaged in the amount of at least Forty-Eight Thousand Dollars ($48,000.00). The plaintiffs suffered a loss of profits as a result of the store being closed entirely for three (3) days in the amount of Nine Hundred Dollars ($900.00). In addition, the plaintiffs were required to pay a total of Six Hundred Fifty-Eight Dollars ($658.00) in connection with cleaning and repairing the premises to restore its usefulness as a retail storeroom."
The defendant, by answer, denied negligence, liability and damages. Both parties introduced evidence.
The jury answered the issue of damages in favor of the plaintiffs awarding $21,752.00. From the judgment entered on the verdict, the defendant appealed. The Court of Appeals, finding error in the charge on the issue of damages, ordered a new trial on all issues.
The Court of Appeals ordered a new trial on all issues on the assigned ground that the trial court's instructions permitted the jury to consider the retail value of the damaged merchandise in fixing the amount of damages the plaintiffs were entitled to recover. While the court in the charge recited to the jury the respective contentions and claims of the parties respecting the amount of damages resulting from the defendant's acts of negligence and thereafter discussed the various claims of damages, the court gave the jury this mandate:
"In the event you have reached this issue and find by the greater weight of the evidence that the plaintiffs are entitled to recover of the defendant for damages to the plaintiffs' merchandise, I instruct you that you will take into consideration the description of and the evidence of the damages to the merchandise which the witnesses have given you. You may consider for the purpose of illustrating the testimony of the witnesses the pictures that you have seen of the merchandise and you will award to the plaintiffs, if you award anything on this issue, the amount which you find represents the difference in the reasonable market value of the merchandise before and after it was damaged. The reasonable market value of any article being the amount which, the owner wanting to sell but not having to, would accept for it and the amount which a buyer who wanted the article but didn't have to have it would pay for it in a free, fair trade in which there is no compulsion on either side. In this case, that amount may be anywhere from one cent to forty-nine thousand nine hundred and seven dollars and seven cents.
"Now, in a case of this type involving the stock of merchandise, you may, in arriving at the fair market value of the items, take into consideration the replacement cost of the items which would be the wholesale price of the goods. You may consider but are not bound by the retail prices of the damaged items because that price would include profits which may or may not be realized and therefore would be a speculative value. In considering the cost of the merchandise to the plaintiff, you may also consider reasonable delivery charges and unpacking expenses involved in the goods or merchandise reaching the stage at which they were at the time that this damage was done to it. In other words, you will try by your verdict to put the plaintiffs in the same position they were in prior to the damage to their merchandise insofar as money can do so. If you reach this issue and decide the plaintiffs are entitled to recover anything as a result of the actionable negligence of the defendant, you will award them the amount you find will fully compensate them for their loss according to the rules I have given you with regard to damages in this kind of a case and you will base your verdict on the evidence in the case."
According to the decided cases in North Carolina, "The measure of damages for injury to personal property is the difference between the market value immediately before the injury and the market value immediately after the injury . . ." 3 Strong N.C. Index 2d, Damages, 4, p. 171. Guaranty Co. v. Motor Express, 220 N.C. 721, 18 S.E.2d 116. Where the injury is less than total destruction, the measure of damages is the difference between the market value of the article immediately before and immediately after the injury. Light Co. v. Paul, 261 N.C. 710, 136 S.E.2d 103; Construction Co. v. R. R., 185 N.C. 43, 116 S.E. 3.
After comparison and review of the pleadings, the evidence, and the contentions of the parties, we are of the opinion the trial court stated to the jury the correct rule to govern their determination of the amount of damages. In the light of the pleadings, the evidence, the contentions of the parties, and the answers to the issues, we are of the opinion that the jury could not have misunderstood the instructions to the defendant's prejudice.
The decision of the Court of Appeals is reversed. The cause will be remanded to the Superior Court of Forsyth County with the direction that the original judgment entered therein be restored as the final judgment of the court.
Reversed.
Chief Justice BOBBITT not sitting.