Appeal by plaintiff from Freeman, Judge. Judgment entered 5 February 1981 in Superior Court, Caldwell County. Heard in the Court of Appeals 5 March 1982.
Hill, Judge. Judges Wells and Becton concur.
In 1973 or 1974, plaintiff rented a portion of a wooden building located behind defendant to store seasonal merchandise for his store and personal property. Plaintiff testified that around 10:00 a.m. on 27 June 1977, he was notified that the building was on fire. The next morning plaintiff saw remnants of organic material which he identified as "uncured hay mixed with some straw."
Jerry Thomas Ennis, who lived across from the wooden building, testified that prior to the fire, he saw a farm trailer with
bales in it next to the building. Ennis stated that it had rained during the time that the bales were in the trailer and that the bales later were removed from the trailer and stacked under the overhanging roof of the building. Michael Lane Coffey, Fire Chief and Building Inspector for Granite Falls, testified that "the point of origin of the fire is the bale of organic material at the end of the structure." In his opinion, the cause of the fire was spontaneous combustion within one bale of uncured organic material.
Earle Teague, a witness for defendant, testified that defendant "has dealt in straw ever since they have been in business, about nine or ten years." William Hugh Kirby, an employee of defendant at the time of the fire, also testified that defendant had straw for use in landscaping. Upon hearing Coffey state that he thought the fire was caused by the spontaneous combustion of uncured hay, Kirby stated, "I told him that there was no hay, that it was straw, and that to my knowledge you couldn't get spontaneous combustion from dry straw."
Tommy E. Andrews, Caldwell County Agricultural Extension Agent, identified photographs of the organic material found near the wooden building on 27 June 1977 as cured, dry, small grain straw. In his opinion, a reasonable person would not have anticipated that a fire would originate by spontaneous combusion of that material.
The principal contention of plaintiff's first argument is that the trial judge erred in misstating a fact in his charge to the jury, thereby causing the jury to over-emphasize the importance of the misstated fact. The judge charged the jury that "the evidence of the plaintiff tended to show that sometime in June of 1977 that he had merchandise from the store and furniture that he owned . . . stored in a building that he rented from the defendant, Green Valley Supply Company . . .." After the jurors retired to begin their deliberations, they returned to the courtroom with the following question: "We, the members of the jury, would like to know if Mr. Teague, the defendant, had permission from Mr. Simmons, who we understand owns the building -- if Mr. Teague had permission to build the shed and stack the hay beside the building?" Counsel for the parties conferred with the trial judge out of the hearing of the jury, and the judge announced that "by stipulation of counsel, in answer to that question, they did in fact
have permission to build the shed and store the material there." The jury again retired to deliberate and returned with a verdict fifteen minutes later. In an affidavit appended to plaintiff's motion for a new trial, plaintiff's counsel stated that he brought to the trial judge's attention the misstatement in the charge that defendant owned the building. However, the trial record does not reflect this objection.
Plaintiff argues that the stipulated answer "gave implicit approval to the jury to consider that fact -- whether the defendant had permission to stack the bales there -- as a significant, controlling, case determining fact." We disagree. Plaintiff's argument is mere conjecture. The trial judge told the jurors that they must trust their own recollection of the evidence and be guided exclusively by it. The question asked by the jury shows that they recalled evidence, despite the judge's instructions, that Simmons, not defendant, owned the building. Even so, the trial record does not reflect that plaintiff made a proper objection to the trial judge's summary of the evidence. By failing to do so, plaintiff has waived the objection. State v. Hammonds, 301 N.C. 713, 272 S.E.2d 856 (1981); Vandiver v. Vandiver, 50 N.C. App. 319, 274 S.E.2d 243, disc. rev. denied, 302 N.C. 634, 280 S.E.2d 449 (1981). This argument is without merit.
In his second argument, plaintiff contends that the trial judge expressed his opinion on plaintiff's evidence of items that were destroyed by the fire. Plaintiff introduced a list of such items which was shown to the jury and began to describe them in detail. After plaintiff began that testimony, the judge said, "It will take all week to try this case if you go through the list item by item and ask detailed questions." Plaintiff argues that this statement "left the impression that this case was not worth taking one week to try, regardless." We find that the list of items destroyed by the fire properly was introduced ...