Volume 261 — North Carolina Reports

Appeals by W. C. Murchison and Louis A. Burney as guardians ad litem and iby W. R. Kenan, Jr. and A. R. MacMannis as trustees from Mintz, J., June 1963 Ciwil Session of New HaNOveR.

Appeal by defendant from Shaw, J., 10 June 1963 Regular Criminal Session, oif ROCKINGHAM. Criminal prosecution 'on a three-count indictment charging the defendants with (1) .non-iburglariously breaking anid entry, (2) larceny of a metal safe, of $75,000 in U. S. currency, .and of ¡stock and saouri-tiasof the value of $100,000, and (3) receiving.

<p>Appeal by defendants from Walker, S.J., 16 September 1963 Civil Session of RaNdolph. '</p> <p>Plaintiff ¡alleges -im ¡her complaint ¡that about 8:30 p.m. ¡on Saturday, 5 May 1962, all nine defendíante, pursuant to. a preconcerted conspiracy, ¡came to ¡her .house and unlawfully and maliciously assaulted ¡her and ¡certain) members of .her family. She alleges the ¡casualties as follows: Out in the yard her sixteen-year-old eon Larry Allred had an open knife pulled on, ¡him by J; O. Ohriscoe and a pistol .pointed at him iby Perry ¡Qhriscoe, was bit in toe jaw ¡by ¡one of ¡them knocking him down ¡and bursting hie jaw, and tom- when he jumped up and nan, he was ¡shot at by Perry ¡Ghriscoe. Doug Purvis, a visiting neighbor, was shot ¡at ¡by Perry Ohriscoe When he was running. Out in toe yard her twenty-five-year-old son Merlin Allred toad a double-barreled shotgun drawn on him by. Frank Graves, was seized ¡by Willie Graves and two other defendants, and was hit in toe mouth and noise ¡by Willie Graves “bursting two teeth.” Peggy Allred, white in the house, was Shot in toe right shoulder by persons in a car. Plaintiff, while in the house, was toot in toe back by persons 'in a ¡car and had ¡a double-barreled shotgun 'drawn.' on /her -by Dempsey Odom while she was in toe yard. Shots were fired into- plaintiff’s home .and into' the automobiles of her daughter Dorothy and ¡her son Merlin. She prays ¡a recovery of $5,000 compensatory damages and of $25,000 punitive damages from all toe defendants.</p> <p>All the defendants filed a joint ¡answer. In their answer they deny aissaulting ¡plaintiff or anyone or ¡shooting. They allege they went to plaintiff’s house to buy some non-tax-paid. liquor. White they were in the front yard, plaintiff’s daughter Dorothy Garner screamed and she and persons unknown to them ¡began fighting. All they did was run away. Their sole .casualty was Willie Graves, who was ¡hit in toe head with am axe.</p> <p>Dm 12 August 1963, and after toe "complaint and ¡answer had been filed, plaintiff, pursuant to G.S. 1-568.11 (a) and (b), filed an application with the clerk of the superior ¡court for am order to- examine all nine defendants in toe courthouse at Asheboxo, Randolph County, the 'County of their residence. On tibe same day tbe clerk entered -an order for their examination, pursuant to G.S. 1-568.11 (e).</p> <p>The foillowinig appears in Judge Walker’s order as facts found by him: On the date of the examination all the defendants, except Dempsey Freeman, were present with their lattormey, H. F. Seawell, Jr. Before the defendants present were sworn, -their attorney made a motion before the clerk of the superior court to dismiss the order of examination for the reason that plaintiff is -seeking punitive damages, and if punitive damages are awarded by a jury, -a judgment for punitive damages could affect their liberty, and consequently the order of examination iis tantamount to requiring the defendants to -give evidence against themselves -and iis contrary to the provisions of tire Federal and State Constitutions. The clerk -denied the motion, and defendants excepted and -appealed. Defendants were then sworn before the commissioner appointed in the order -to hold the examination, and each -of them refused to- answer questions ais to- whether or mot they w-ere with the other defendants on 5 May 1962, -and ias to whether or not they went to plaintiff’s house o-n that night. Plaintiff through -her attorney gave notice that the defendants would be -cited for contempt in refusing to -answer questions. Whereupon, the -parties and th-eir attorneys agreed -that tbe motion for -contempt should -be heard by the presiding judge at the 16 September 1963 Session.</p> <p>The parties stipulated before Judge Walker, “the defendants -and each -of them -‘had 'heretofore been -tried in the superior court of the State o-f North -Carolina for criminal charges growing out of the same facts -and -circumstances as alleged in the complaint in this civil ¡action, the defendants, through their -attorney, contending, however, that this w;as in the nature of a quasi-crimina-1 -action wherein the plaintiff -seeks punitive damages against -the defendants, -and each of them, and * * that to require them to give testimony in -an adverse examination would be in violation -o-f their rights under Article I, section 11, and Article I, -section 29 of -the North Carolina Constitution.”</p> <p>Judge W-a-lker ruled as a matter of law th-at isecti-ons 11 -and 29 of Article I -o-f the State Constitution a-pply -only to criminal -actions and do not -a-pp-ly to a -civ-i-1 -action- in which punitive damages -ar-e sought, and that defendants -are required to give testimony -as required in the order for their examination. Whereupon, he affirmed the -order o-f the clerk for examination of the defendants -and the -order of the clerk refusing to -dismiss -the order o-f -examination, -and -ordered tbe defendants to a-ppea-r -before the commissioner appointed -to- -h-o-ld -the examination -at such time -as may be -set by -her to- -answer questions asked them within the -scope of the matters -set forth in the -complaint and answer.</p> <p>From 'this order, defendants appeal.</p>

A properly executed deed of separation under which the husband conveys to the wife certain property, agrees to pay her ¡a certain sum monthly for 18 months and 'the wdfe agrees not to seek further support from Tvim ¡after such sums had .been paid, is held ¡not ¡to bar her suit for alimony without divorce or preclude an ¡order for ¡alimony pendente lite therein ,whan tbe Obiusbaaicl .breaches the agreement after eight monthly payments by 'refusing to make further payments in…

<p>ON writ of certiorari, treated as iaa appeal by defendant to review the order of McLaughlin, J., signed July 20, 1963 in chambers in an action pending in Iredell.</p> <p>The plaintiff, .wife, instituted this action to. obtain a divorce from bad aod board. iShe .asked for both temporary 'and permanent alimony, ‘counsel fees, tihe custody of the two minor children of the marriage, and .an allowance for their support. In the complaint and the two amendments thereto, she alleged that she and tbe defendant separated on August 8, 1961, resumed marital relations on July 15, 1962 and separated again on August 12, 1962, on which date the defendant wrongfully abandoned her .and since which he has willfully refused to provide her and the children with adequate support. She further alleged- that ea.cth separation was .preceded by conduct (detailed in some paragraphs and pungently characterized in others) which rendered her life burdensome and her condition intolerable.</p> <p>The defendant filed a motion to strike numerous portions of the original 'complaint and each amendment in its entirety. He bas as yet filled no answer to1 the complaint but, prior to tbe hearing on plaintiff’s application for temporary alimony and counsel fees, he filed a. “Plea in Bar” -in which he set up a deed oif separation, duly executed 'and acknowledged by the parties on June 8, 1962, as .a complete bar to plaintiff’s claim for support and counsel fees. A copy of the deed of separation -was attached to' the plea. It recited that in consideration of ten thousand 'dollars, plus “certain tangible personal property” which she had removed from their home, .plaintiff released defendant from hi-s obligation to support her 'and conveyed to' him .all her interest in then’ joint property. The parties agreed therein that plaintiff should have the custody oif the two children of the marriage subject to -certain visitation rights in the defendant and that be would pay plaintiff two hundred dollars a month to compensate her for tbe living expenses of each ■child ¡while in her custody.</p> <p>Plaintiff replied to the plea in bar, alleging that .after the execution of the deed of .separation the parties became reconciled and lived together .as man and wife from July 15, 1962 until August 12, 1962 when the defendant, without justification, abandoned her and the minor children.</p> <p>On July 20, 1963 Judge McLaughlin heard plaintiff’s motion for temporary ¡alimony and counsel fees. His Honor found the facts in accordance with the plaintiff’s evidence and contentions. It would serve no -useful purpose to recapitulate .the evidence which covers 150 pages oif the record. It recounts in oppressive detail a sad and tragic saga which, if .true, fully justified the judge’s findings. Only the evidence pertinent to this decision will be referred to in the opinion. On the hearing the judge considered and denied defendant’s motion to strike, his ¡appeal from the clerk’s order allowing the ¡amendments to the complaint, -and the .plea .in bar. He awarded the custody of the .two children to the plaintiff, and denied the defendant .any contact whatever with them. Pending the further orders of (the court, he directed the defendant to .pay the .plaintiff $1,500.00 a month — $500.00 for her support ¡and $500.00 for the support of each .child. From this order the defendant -appealed, assigning nine errors.</p>

<p>1. Automobiles § 38—</p> <p>Evidence -disclosing -that tbe ■aittemitio-n of Hue witness was attracted to a ear with, a loud muffler1 which passed her home -a quarter -of a mile from the scene of the collision, that no other car with ia loud muffler passed her home that morning, and that -the collision occurred shortly thereafter, with evidence tending to -identify the car she saw with th-alt driven by defen-darnt, is held .to render competent lier testimony from her observation of •the oar as to its speed.</p> <p>2. Automobiles § 41b— Evidence of excessive speed constituting proximate cause of injury held sufficient to take the issue to the jury.</p> <p>The accident in suit occurred immediately north of a one-way bridge on a two-lane highway, between, a oar driven south by plaintiff! and a oar driven north by defendant. Opinion testimony as to the speed of defendant’s car immediately prior to the collision together with testimony as to the physical facts at the scene immadiia|fcely after the collision, held sufficient to show that defendant ,was operating his car at an excessive and -unlawful speed and (that notwithstanding he saw, or by the exercise iof due care should have seen, plaintiff’s oar in morion or standing on the north side of the bridge, defendant did not bring his car under control but continued across -the bridge at such unlawful speed until the moment of collision, and that such negligence was a proximate cause of the collision.</p> <p>3. Negligence § 21—</p> <p>(The burden is upon defendant to prove contributory negligence.</p> <p>4. Automobiles § 44—</p> <p>Where the physical facts at the scene of the .collision permit inferences that immediately before the impact plaintiff’s car was on its right side of •the highway and also that it was to (the left -of itsi center of the highway, there being mo eyewitness to the collision!, the position of plaintiff’s car immediately -prior to the collision rest-s in mere surmise, and -the evidence is insufficient to ibe submitted |bo the jury on the contention that plaintiff was guilty of contributory negligence in failing to keep her car on the right side of the highway, and therefore any error in the court’s instruction upon the issue of contributory negligence is- harmless upon defendant’s appeal.</p>

<p>Appeal .by defendant from Gambill, J., April 1963 Civil Session of DAVIDSON.</p> <p>Civil action upon .an automobile liability policy of insurance heard upon -a demurrer to. defendant’s Third Further Answer -and Defense aRegad in its lanswer as a complete bar to. any liability in this action.</p> <p>From a judgment sustaining the demurrer, defendant appeals.</p>

<p>1. Declaratory Judgment Act § 1; Taxation § 36—</p> <p>Tbe Commissioner of Revenue cannot be sued pursuant to tbe provisions ■of tbe Declaratory Judgment Act to determine liability for a tax.</p> <p>2. Taxation § 36—</p> <p>Tbe rights granted under G.S. 105-266.1 are in addition, 'to tbe rights provided by G.S. 105-267, and a taxpayer may sue to recover sales taxes paid within ninety days from the denial of its claim for refund of said taxes notwithstanding more .than ninety days may have elapsed since .the payment of the sales tax on specific items purchased, since tbe limitation •envisions the computation of time from a decision rendered applicable to a specific factual situation in a quasi-judicial hearing.</p> <p>3. Taxation § 15—</p> <p>A bousing authority is not entitled to a refund of sales taxes paid by it on purchases made by it, since G»S. 157J26 has mo application to sales taxes but applies to ad valorem taxes, and although a housing authority ■is a municipal corporation, it is mot a county or unincorporated city or town which are .the only agencies entitled to a refund under G.iS. 105-164.14(c), and since a housing authority is a municipal corporaltiom, it is mot a charitable organization entitled to a refund under G.S. 105-164.14 (b), nor is 42 U.S.O.A., § 1405(e) applicable.</p>

<p>1. Easements § 8—</p> <p>,The grantor of an easement of access may not obstruct the ea-sem-ent so -as to interfere with its reasonable enjoyment 'by tb-e grantee, and be bas no right -to do- or permit -the doing of anything which .results in the impairment -of the easement granted.</p> <p>2. Same— Whether grantor interferred with reasonable use of easement held for jury on evidence.</p> <p>The deed -in suit conveyed a lot with an easement in a street to be opened along the sid-e of the lot. The -evidence disclosed that the grantor, under ¡the provision of a restrictive covenant in the deed, approved, plans for middle, opposite the carport, there was a cut of some six feet, so that a street -to be constructed, and that when the street was constructed its grade was approximately even with the lot at each end, .but that in the middle, opposite the carport there was a cut of some six feet, so that a driveway useable by automobiles could not be constructed from the street to the carport. Held: The evidence requires- -the submission to the jury of the question whether ¡the street so constructed afforded reasonable ing-ress, egress, -and regress with respect to plaintiff’s lot.</p> <p>Moobe, J., concurring in result.</p> <p>Parker and..-B0BBiT.T, JJ., join in'-concurring opinion.</p>

Appeal by defendant Hartness from Campbell, J., April 1963 Session of Catawba. ■Civil -action instituted January 26, 1962, to 'have -adjudged null and void (1) a deed of trust to J. Carroll Abemethy, Jr., Trustee, and (2) the $6,000.00 mote described ¡therein .and -purportedly secured thereby, on -the ground the execution thereof by plaintiffs was procured -by false and fraudulent representations -of defendant Hartness.

<p>Appeal by defendant from Johnston, J., July 19, 1963, Session of FORSYTE.</p>

<p>Appeal by plaintiff from McKinnon, J., June 1963 Session of ■Chatham.</p> <p>Civil action -to ¡recover damages for the alleged wrongful death of plaintiff’s testate. G.S. 28-173.</p> <p>Plaintiff’s testate, W. H. Scott, met his death on 29 June 1961 at about 3:45 p.m. as a result ¡of a collision of mo tor vehicles, when a 1950 Chevrolet pickup truck operated by William Thomas Clark in an easterly direction on U. S. Highway 64, a (two-lane highway, about 1300 feet east of its intersection with N. C. Highway 55 in Wake County, crossed to its left of the white center line on the highway and its left front collided with the left front of a 1956 'Chevrolet pickup truck, which W. H. Scott was driving in a westerly direction on the same highway. The hand-surfaced part of the highway was about twenty feet wide and on each side were shoulders six feet wide. At the scene of the collision, the maximum speed limit was 55 or 60 miles an hour. The weather was fair and the highway was dry. During the trial the parties stipulated that the 1950 Chevrolet pickup truck was owned by the defendant Chaim P. Clark, and that at the time of the collision 'the defendant William Thomas Clark was operating it as agent of Charm P. Clank and within the scope of his agency.</p> <p>Plaintiff alleges in hen complaint and amendment thereto that defendants were negligent in the operation of the 1950 Chevrolet pickup truck, .which proximately caused her testate’s death, in the following respects: One, reckless driving in violation of G.S. 20-140; two, driving at a speed greater than was reasonable .and prudent under the existing conditions, in violation of G.S'. 20-141 (a); three, failing to keep a proper lookout; four, failing to keep it under proper control; five, driving into its left lame of .traffic without ascertaining that it could be done in safety; six, driving into its left lane of traffic directly in front of the approaching pickup truck operated by her testate; seven, driving with steering equipment in a worn and defective condition; eight, driving it equipped with old, worn, defective and unsafe tires, When each of the defendants 'had, or by the exercise of ordinary care should have had, knowledge of the defective and unsafe condition of the tires; and nine, failing to give to her testate’s approaching pickup truck one-half of the main-traveled portion of the highway as nearly ias possible, in violation of G.S. 20-148.</p> <p>Defendants in their joint answer 'deny that they were negligent in any respect. As a further answer and defense, they allege that William Thomas Clark wais operating the 1950 Chevrolet pickup truck at a reasonable rate of speed, that it was in goo-d repair and condition according to the best of their knowledge, and that as he came near Scott’s approaching pickup .truck, the left front tire of his pickup truck suddenly blew out, causing it to veer suddenly to its left and into the approaching Scott pickup .truck oausing a collision, -and that the collision was a pure accident caused by no negligence on their part.</p> <p>Plaintiff and defendants offered evidence. The jury found by its verdict that the death of plaintiff’s testate was not caused by the negligence of defendants as alleged in the complaint.</p> <p>From a judgment, in accord with the verdict, (that plaintiff take nothing by this action and taxing her with the costs, she appeals.</p>

<p>Appeal by defendant from Bundy, J., November 1962 Civil Session Of PERSON.</p> <p>Action to> recover 'damages for malicious prosecution.</p> <p>Plaintiff Bassinov and bis wife moved to Roxboro- in 1948. About 1954 they decided to purchase a new borne. Plaintiff 'discussed the matter with 'defendant Finkle, bis father-in-law, who agreed to malee the down payment. Finkle resided in Raleigh. The punchase was consummated, Finkle made the down payment and took title in his (Finkle’s) name. Plaintiff and his wife and children occupied the house 'and plaintiff made monthly payments to a savings and loan association which had financed the balance of the purchase price. From time to time defendant Finkle either carried or sent articles of household furniture and equipment to the Bassinov home. Plaintiff contends these items were gifts to the family but defendant insists he loaned them to the Bassioovs. In June 1960 plaintiff’s wife, and 'children, left Roxboro ostensibly for a three-weeks visit with her sister in Arizona. They have not returned and plaintiff and his wife have been separated since that time. Soon after the separation defendant requested plaintiff to vacate the home in Roxboro and leave the furnishings in if. Plaintiff vacated- the premises and had all furniture and equipment removed and stored.</p> <p>On 14 September 1960 defendant caused a warrant to issue charging plaintiff with the larceny of household furniture and equipment of a value of more than $100. Plaintiff was arrested thereunder and released on bail. In the county court of Person County on 27 September 1960 the State took a nol pros 'and Bassinov was discharged.</p> <p>On 25 January 1961 defendant swore out a warrant -charging plaintiff with the -embezzlement of $450 from a sale of a station wagon jointly owned by plaintiff and his wife, the sale having been procured at the instance of plaintiff without authority from his wife. The county court of Person County on 7 March 1961 dismissed the action for want of probable cause.</p> <p>Plaintiff instituted the present suit alleging two- causes of action for malicious prosecution, (1) based upon the larceny prosecution, .and (2) based upon the embezzlement prosecution. Plaintiff asked for punitive damages -in the second cause of action'. At the trial the court allowed defendant’s motion for nonsuit of the second cause of action at the close -of plaintiff’s evidence, but denied such motion as to the first cause of action. The judge in his discretion -then allowed plaintiff to amend the 'complaint iso as to allege grounds, and ask, for punitive damages in the first cause of action.</p> <p>The jurors found for their verdict that defendant prosecuted plaintiff for 'the felony of larceny, maliciously and without probable cause, and that defendant was motivated by actual malice. They awarded $3000 compensatory damages and $12,000 punitive damages. Judgment was entered accordingly. Defendant appeals.</p>

<p>1. Appeal and Error § 40—</p> <p>Where as a matter of law plaintiff is not entitled ito recover on the record, judgment dismissing the action, even though entered on an erroneous ground, will not he disturbed.</p> <p>2. Eminent Domain § 2; Highways § 5—</p> <p>At common law the owner of land abutting a highway, while not entitled to access 'at all points along the 'boundary between his land and the highway, has a special right of easement for access purposes, and substantial interference with this free and convenient access to the highway is a “talcing” of a property right for which he may recover just compensation.</p> <p>3. Same—</p> <p>The common law right of access of the owner of property abutting a highway does not apply when the owner has conveyed' a right of way to the Highway Commission, since in such instance the respective rights oí the panties must be ascertained from the construction of the right of way agreement.</p> <p>4. Same; Easements § 7—</p> <p>Where the Highway Commission purchases the right of way from an abutting -owner, with provision that the -owner -should have access to the highway, th-e Highway Commission is in effect th-e -servient owner with respect to -the right -of acees-s, and it has the right to locate the access road under the general rule that, where the grant does not fix the 1-oeatiom of an easement, the owner of the servient estate has the right in the first -instance itio designate the location, subject to the limitation that it must -exercise the right in -a reasonable manner with due regard to the lights -of the -abutting -owner.</p> <p>5. Same— Restricted access to service road and denial of access along interchange ramp held in conformity with right of way agreement.</p> <p>The right of way agreement in suit provided that the owners of abutting land -should have “no right of access to -the highway” except by way of -service roads and ramps built -in couneotion with -the project. The project was an overpass of -one highway -over another with connecting ramps. The Commission provided plaintiffs access -at -the -point where -a service road wa-s -adjacent -to plaintiffs’ property, from which point pl-adnitiffs had access to the highway by way of a ramp, but completely denied plaintiffs direct access :to the ramp. Held: Plaintiffs were giv-en -reasonable access to the highways by way of the service road and ra-mp in conformity with -the right -of way agreement, and plaintiffs were no-t entitled to- additional compensation on the ground that the denial of access to -the ramp at all points contiguous to their property was -an additional “tailing.”</p>

<p>Appeal by M. R. Tadlock and ¡wiíe, Luna S. Tadlock, from Copeland, S.J., February 4, 1963, Special “B” Civil Session, Meoklenbtjbg Superior Court.</p> <p>This controversy grew out of the following:</p> <p>“ORDER OF ZONING INSPECTOR, City of Charlotte, North Carolina, August 16, 1962.</p> <p>“Mr. Ralph Tadlock, Route 7, Box 474, Charlotte, North Gar-olim. Dear Mr. Tadlock: An inspection of the property on Par-kins Road, located in a R-12 District as established by the Charlotte Zoning Ordinance has revealed a mobile home court. The ordinance specifically prohibits this type of use in this District. It is the duty of this Department to enforce the provisions of the Ordinance. All units that have been established after January 29, 1962 will have to be removed. This letter is, therefore, official notice to move non-conforming units within (15) d-ayis from the date of this letter. Your prompt 'cooperation will make further action by this Department unnecessary. Yours truly, /is/ D. W. Long, Zoning Inspector.”</p> <p>“NOTICE OF APPEAL.</p> <p>“Notice is hereby given the Board of Adjustment and the Building Inspector relative to an- appeal from the ruling of the Building Inspector on the 10th -day of September 1962, f-or ten acres of land in Mallard Greek Township lying on the -westerly side of Perkins Road located at: in the City of Charlotte, North Carolina, (Perimeter area). Title to- this -property is in 'the name of M. R. Tadlock and wife, Lura S. Tadlock. The grounds for this appeal -are as hereinafter set forth:</p> <p>“The .appellants allege and contend that prior to January 30, 1962, .they had begun the development of a trailer park on the above described ten acre -tract; that said trailer park wais in the process of -completion on January 30,1962, and that they have the right to complete the development thus started.</p> <p>“Signature of Appellants: Lura S. Tadlock, M. R. Tadlock.”</p> <p>The Board of Adjustment held a hearing on November 27, 1962, at which Mr. and Mrs. Tadlock offered evidence -of which this is a short summary: On November 29, 1957, ¡they 'completed the purchase of an unimproved tract of land containing 10 acres in Mallard Greek Township, Mecklenburg County. Their purpose was to construct a trailer or mobile home park to accommodate 75 units, each on a site approximately 40 by 100 feet. Their plan was to complete the entire development in three stages, beginning at Perkins Road and extending eastward until -the entire 'Construction was completed. Mea 1, as surveyed and mapped, was designed to accommodate 25 units.</p> <p>Soon after the purchase in 1957, development work on Area 1 began. The owners graded the entire area. They graded and surfaced a street from Perkins Road eastwardly near the center of this area, dead-ending near its eastern boundary. Two wells were bored, of sufficient capacity to meet the needs of 25 units. The wells were on the south side of the street. Water and sewer lines were laid, a septic tank was installed, power lines were erected, and concrete patios and footings were poured on the 14 sites north of the street. A mobile home was in place on each of these sites. A third, or reserve, well was being completed, also on the south side of tire street. The owners were moving toward the installation of 11 sites south of the street. Already they had spent $12,000.00 to $15,000.00 at the time the inspector gave the order on August 16, 1962.</p> <p>From the beginning, it was the purpose of the owners to- develop Area 2 directly to the rear and to the east as soon as Area 1 was completed; and, likewise, to 'Complete Area 3 upon the completion of Area 2. However, actual construction was confined to Area 1. The evidence indicated that Areas 2 and 3 are of little value, or will be of little use except as parts of the development. Both areas are cut off from Perkins Road by Area 1.</p> <p>The City Council passed a zoning ordinance effective January 30, 1962. According to all the evidence, the Tadlocks had no1 knowledge their development had been zoned until the inspector issued the notice dated August 16, 1962. The owners asked the Board of Adjustment for a hearing. After notice, Hie Board of Adjustment held a hearing on November 27, 1962. Tire owners presented evidence in substance as stated above, none of which wais controverted. Neighbors appeared in opposition to the granting of a nonconforming use permit to complete tire development. Their objections were upon the ground that a trailer park would make their neighborhood a less desirable place in which to live, increase the traffic hazards, and reduce the value of their properties due to the undesirable type of people who would live in the mobile homes.</p> <p>The Board of Adjustment concluded:</p> <p>“In accordance with Section 23-95 Paragraph (a) ‘the Board shall not grant a variance whose effect would be to allow the establishment of a use not otherwise permitted in a District by this Ordinance, to extend >a non-conforming use of land,’ the decision of the Building Inspection Department is therefore upheld.”</p> <p>The Superior Court, on certiorari, reviewed and entered the following order:</p> <p>“IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the action of the Board of Adjustment in denying the appeal of M. R. Tadlock and wife, Lura S. Tadlock and affirming the Zoning Inspector’s denial of the petitioners’ request for approval of additional trailer sites is sustained. This the 12th day of February 1963. J. William Copeland, Judge Presiding.”</p> <p>The property owners appealed.</p>

<p>Appeal by defendants from Braswell, J., February Civil Session 1963 of HaRNett.</p> <p>This action was instituted by the plaintiff to. recover for personal injuries ¡sustained under the .circumstances ¡hereinafter set out.</p> <p>On 8 November I9601, ¡at ’approximately 7:55 ¡a.m., the plaintiff was injured when, ¡struck ¡by .a ear driven by defendant Patsy Alease Roberson (now Carroll) on South Wilson Avenue in Dunn, North Carolina. The ear was owned ¡by defendant C. A. Roberson, father of Patsy Carroll.</p> <p>J. Alton Bass, the plaintiff, was crossing South Wilson Avenue diagonally, .approximately in the middle of the block. Traffic -at the intersections ¡at either end of the ¡black was ¡controlled by electric signals ¡and there was no crosswalk at any point within the block other than ¡at the intersections. The ¡block in which the ¡accident ¡occurred is 300 feet long and the street 43 feet wide. The weather was fair and the pavement was ¡dry. It was ¡stipulated that the speed limit w.as 20 miles per hour.</p> <p>At the time in question, the plaintiff J. Alton Bass ¡had alighted from ¡a pick-up truck which had been parallel parked ¡against the west curb of Wilson Avenue headed ¡southward. From this point, he walked southward .along the west sidewalk until he reached a point in front of a soda shop located on the west ¡side ¡of Wilson Avenue directly across the street from the Dunn Police Station, which is 153 feet south of the intersection of Broad Street and Wilson Avenue.</p> <p>Adjoining the sodia shop on the ¡south was the Dunn Theatre in front of which there was a marked “No Parking” zone. There was parked' in tibe no parking 'area in front of the theatre -a Curtis Candy walk-in trunk beaded southward. Between the rear of this track and the intersection of Broad and Wilson the only other vehicle parked on the west side of Wilson Avenue was the pick-up truck from which the plaintiff had alighted.</p> <p>Plaintiff testified he stopped at the curb in front of the soda shop, looked both ways, saw no traffic coming from either direction and stepped off the curb to cross the street and heard a noise to his right. “I stepped sideways one step, looked both ways, and then stepped on out into the middle of the southbound lane ‘and looked both ways. * ':i I was in the middle of the southbound 'lane the last time I looked to my left to observe traffic approaching from the north going south.”</p> <p>Plaintiff further testified that he had reached the middle of the northbound lane of Wilson Avenue when- “I heard something to my left and -turned as quick as I could atnd tried to hold the car off of me •and it knocked me -down -in the east lane.”</p> <p>On ‘cross-examination, this plaintiff testified he never saw the car operated by defendant Patsy Carroll until it hit him.</p> <p>Defendant Patsy Carroll -testified that she was driving southward on Wilson Avenue at a speed of not more than 10 miles per hour; that she was 'diiving on her right-hiand .side of the street; that -the Curtis Candy truck was parked “diagonal-like” with its back portion extending into the traveled portion of Wilson Avenue, and that as she -approached it it 'began to back up and she thereupon pulled to the left -a little to go around it. At this time she isaw Mr. Basis. She further testified: “When I first -sa-w him, -he was on the right-hiand side of my car, and he was jumping to the left-hand side of my -car. At that time I jerked the oar ■a/nd a-pplied my -brakes at the same time. I jerked it to the left some. My automobile struck Mr. Bass. I had 'applied brakes at that time. It hit him as it stopped. After striking him it immediately stopped. At that time, with respect to the approximate .center of Wilson Avenue, my car was in the middle of -the street, -partly on the right-hand side and partly on the left. It was headed straight — sort of diagonal, like it was going around. I-t was headed to the left side.”</p> <p>The jury returned a verdict in favor of the plaintiff. From the judgment entered on the verdict, the defendants appeal, assigning error.</p>

<p>Appeal by plaintiff from Braswell, J.,t July 24, 1963, Session of CumbeblaNd.</p> <p>Plaintiff’s 'action is to restrain defendant, the Sheriff of Cumberland County, North Carolina, from making arrests for alleged violations of Chapter 488, Session Laws of 1963, which provides:</p> <p>“AN ACT TO REWRITE G.S. 14-346.2 TO PROHIBIT CERTAIN BUSINESS ACTIVITIES ON SUNDAY.</p> <p> “The General Assembly of North Carolina do enact: </p> <p>“Section 1. G.S. 14-346.2, as the same appears in the 1961 Cumulative Supplement of the General Statutes, is hereby rewritten to read as follows:</p> <p>“ ‘§ 14-346.2. Any person, firm or corporation who- engages on Sunday in the business of selling, or sells or offers for sale on such day, -clothing -and wearing -apparel, clothing accessories, furniture, home, 'business or -office furnishings, household, business or office appliances, hardware, tools, -paints, building and lumber supply materials, jewelry, silverware, watches, -clocks, luggage, musical instruments or recordings, shall be guilty -of a misdemeanor, and upon conviction shall be fined or ira-prisoned, or both, in the discretion -of the court.</p> <p>“ ‘Each separate sale -o-r offer to sell shall -constitute -a separate offense: Provided this Section shall not -be applicable to Avery, Currituck, Wilkes, Madison, Yancey, W-atau-ga, Graham, Cherokee, Gl-ay, Hyde, Henderson, Mitchell, Qamden, Swain, Pamlico, Carteret, Brunswick, Dare, Haywood, Jackson, Macon, New Hanover, Pender, Polk, and Transylvania Counties.’</p> <p>“This Act shall not apply to' 'Chimney Rock Township of Rutherford County, Colly Township o-f Bladen County, or Edneyville Township of Henderson County.</p> <p>“This Act shall not apply to facilities within the right-of-way of the B-lue Ri-dge Parkway in Ashe, Alleghany 'and Watauga Oountias as shown on recorded plats of Hie same 'and 'this Act shall not apply to Blowing Rock Township of Watauga County.</p> <p>“The areas tihiat are exempted from this Act by the foregoing provisions are so 'exempted upon the classification of such 'areas 'as resort or tourist areas, the General Assembly recognizing that ■different considerations apply to suich 'areas. By exempting such areas from this Act ¡the General Assembly hereby classifies such areas as resort or tourist areas.</p> <p>“Sec. 1%. In the event the provisions of this Act exempting certain areas of less than county ¡size from the effect thereof be held unconstitutional, such provisions shall be considered as sev-erable from the other provisions of this Act and such exemptions shall then be void and 'be disregarded in determining the constitutionality of the other provisions of this Act.</p> <p>“Sec. 2. All laws and clauses of lawis .in conflict with this Act are hereby ¡repealed.</p> <p>“Sec. 3. This Act shall become effective July 1, 1963.</p> <p>“In the General Assembly read three times and ratified, this the •22nd day of May, 1963.”</p> <p>Plaintiff, a North Oarolina corporation, has its principal office in Mecklenburg County, North Oarolina. It operates a general retail merchandising store in Cumberland County, North Carolina, approximately one mile from the city limits of Fayetteville. On Sundays, in said store, plaintiff engages in the .business of selling many of the articles referred to in said 1963 Act and derives “a substantial dollar volume of business” from such Sunday sales.</p> <p>Plaintiff alleges the 1963 Act is unconstitutional and therefore void; that it has no adequate remedy at law; and that, unless defendant is restrained-, plaintiff will suffer irreparable damage and injury by “substantial loss of dollar volume of business on Sunday” and by a multiplicity of arrests 'and criminal prosecutions.</p> <p>When the cause came on for hearing as to whether a temporary restraining order theretofore issued) 'should ¡be continued in effect pending final determination of the action, defendant demurred to the complaint on the ground the 1963 Act is valid and therefore the complaint did not allege facts sufficient to constitute ia cause of action.</p> <p>After hearing, the court entered judgment sustaining the demurrer, dissolving the temporary restraining order and dismissing the action. Plaintiff excepted -and appealed. Thereupon, the court, exercising the discretionary power conferred by G.S. 1-500, ordered tihiat the temporary restraining order remain in effect pending disposition of plaintiff’s appeal.</p>

<p>1. Negligence § 36—</p> <p>Since the attractive nuisance doctrine generally is not applicable to natural bodies of water, and since tbe owner of land is not under duty -to erect a fence >or other obstruction to protect small children from obtaining access to a branch or creek flowing in its natural state, a Housing Authority may not be held liable for tbe ¡death of a child of one of its tenants who drowned when, she -fell into a stream, swollen by heavy rains, flowing adjacent the -property.</p> <p>2. Municipal' Corporations § 12; Waters and Water Courses § 1—</p> <p>A -hastening iof the flow of surface waters necessarily results from the canstriuctioin of streets' and gutters by a municipality, and the city may not he held liable for injuries resulting from such acceleration in flow if ■the surface -wiaters ar.e mot diverted from their niatunal direction -of flow. '</p> <p>S. Same—</p> <p>The -failure of a municipality to provide adequate culverts to take care of ithe drainage of surface water through a natural stream in ordinary and foreseeable storms cannot be a contributing cause -of the drowning of a -child who fell into the stream when the evidence 'discdioses that there was no backup of waters at the point where the child fell in, but to the contrary, that the water -was flowing rapidly at that place and- that the child’s body -was recovered some two blocks downstream.</p>

<p>Appeal by plaintiff from Shaw, J., September 9, 1963 Civil Session, Guileobd Superior Court, Greensboro Division.</p> <p>The plaintiff instituted this -civil .action- to have the -court determine by declaratory judgment 'Iris night to- change bis political party affiliation on the registration books of -Guilford County Board of Elections without making -oath “.that I will support the (nominees of the party to which I am now -changing my -affiliation ¡in the next election and the isa-id party nominees thereafter until I shall, in. good faith, -change my party affiliation in the manner .provided by law.” The plaintiff prayed for a writ of mandamus to .compel the election .officials to permit the requested change without -requiring ¡him to- take the (to- him) objectionable part -of the loyalty o-ath above quoted.</p> <p>The pleadings -and stipulations establish the following: On -and -prior to October 3,1962, plaintiff was a qualified and registered elector in Guilford County. He was registered -as a Democrat. The defendants at all times pertinent to this inquiry held offices as .stated in the caption. The plaintiff .applied to the Secretary -of the County Board of Elections -for -a -change in party .affiliation from “Democrat” -to “Republican.” He -agreed to take (the oath prescribed in G.S. 163-50, except -the part above quoted, to which he -objected upon the ground he did not know who the Republican nominees would be, their views on public questions ¡at the time ¡of the election, nor who. .the party candidates would be in future elections. Hence, in go-od conscience, he could not swear that 'be would support them. He offered to 'take the oath if the objectionable clause were eliminated. The officials of the Board of Elections refused to permit the 'Change without the full oath. The plaintiff exhausted MI administrative remedies prior to the institution of this action, in which Judge Shaw entered the following:</p> <p>“2. The oath required by G.S. 163-50, does not abridge, modify or deprive any registered elector of any constitutional Rights, State or Federal, to. .which he is lawfully entitled.</p> <p>“IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the plaintiff’s action be dismissed, the relief sought by the plaintiff be denied, and the costs of this action be taxed against the plaintiff.</p> <p>“This 18th day of September 1963.</p> <p>“/s/ Eugene G. Shaw, Judge Presiding.”</p>

<p>Appeal by Transport Corporation and .additional defendant O’Brien from Williams, J., 6 M-ay 1963 Civil Session of WaKe.</p> <p>The plaintiff instituted this action to recover for personal injuries sustained in a ¡collision between a .tractor-trailer, operated by defendant Transport Corporation, and lan automobile in which the plaintiff was riding and which was owned and operated .at the time of the collision by the additional defendant O’Brien.</p> <p>On 23 August 1961, about 11:00 p.m., defendant Transport Corporation’s ittt’actor-trailer was being operated by its driver, defendant William Vernon Crew®, in a westerly ¡direction ¡on U. S. Highway 70 near the bridge ¡over Interstate Highway 95. The truck stalled due to. a defective switching mechanism on the gas tank; the driver pulled the traotor-trailer ¡on tihe side of the highway as far as its momentum would carry it, ibut succeeded ¡only in getting the right wheels of the ■tractor not more than a few inches ¡off the pavement while the right wheels of the trailer remained on the pavement. After trying unsuccessfully to start the motor, according to the testimony of the ¡driver of the tractor-trailer, he placed reflector flares at intervals to the rear of the truck, turned on ¡the left turn signal, and-left the clearance lights burning on the rear of the truck. AH the ¡clearance lights were on the bed of 'tLe truck which was loaded with 21 .hogsheads of tobacco and covered by a dark green canvas. The driver of the truck left for Smith-field to .get gas. The collision occurred just 'before the driver returned to ¡his truck.</p> <p>About 11:45 p.m., the plaintiff and the additional defendant O’Brien ware proceeding in ¡a westerly direction on U. S. Highway 70 in O’Brien’s car, which was being operated at a speed of approximately 50 to 60 miles per hour. The night was dark and cloudy. O’Brien failed to see the truck in time to stop, and struck the rear of the truck after skidding 69 feet.</p> <p>The plaintiff Barbara Lee Watt (now Wagstaff) brought this action against the Transport Corporation, and defendant Transport Corporation 'had O’Brien joined as an additional defendant. The Transport Corporation filed .a -cross-action against O’Brien pursuant to the provisions of G.S. 1-240. O’Brien filed a counterclaim against defendant Transport Corporation for his personal injuries and property damage.</p> <p>The jury found that the plaintiff was injured by the negligence of the Transport Corporation and O’Brien and assessed 'her damages at $5,000. Judgment was entered for the -plaintiff against the Transport Corporation for $5,000, for the Transport Corporation .against O’Brien for contribution in the sum of $2,500, and against O’Brien on his counterclaim.</p> <p>Defendant Transport Corporation and O’Brien appeal, assigning error.</p>

<p>1. Limitation of Actions § 18—</p> <p>Where all of the relevant facts are admitted, -the question .of the bar of a prop-erly pleaded statute -of limitations is a question of ia-w.</p> <p>2. Judgments § 43—</p> <p>The cause -of action is merged in the judgment rendered therein, and the judgment is -a debt of record so that an aetio-n on -the judgment is a new action on-a debt separate and distinct fr-o-rn the original cause of action.</p> <p>3. Guardian and Ward § 3; Infants §§ 5, 6—</p> <p>. The powers -of a in-ext friend or a guardian ad litem, as distinguished from a -general guardian, are -coterminous with -the beginning and ending of the prosecution of the particular suit in which he is appointed so that -the -entry of judgment renders him funetus officio, and -he is not authorized to receive payment -of the judgment for the minor. G.S. 1-64.</p> <p>4. Judgments §■ 43—</p> <p>Where judgment is recovered in favor -of an -infant -in an action brought -by -the next friend, the infant having no general guardian, the ten year limitation on an action on the judgment, G.S. 1-47(1), -begins to- run when the. infant reaches his majority. G.S. 1-17.</p>

<p>1.. Insurance § 28—</p> <p>Provision of a policy for benefits if a person covered is confined to a hos-spital by reason of sickness' refers .to am existing illness which is the cause of the hcspitalizaiaon, 'and does not coyer an operation ito prevent future ■illness.</p> <p>2. Same—</p> <p>The evidence disclosed tha,t plaintiff’s wife had arrested tuberculosis, ■that she became increasingly nervous and depressed during each successive pregnancy, and that after the delivery of her fourth ehild her physician was of the opinion she was headed for a post-partum psychosis unless a tubal ligaitton was performed. Held: If the operation was to prevent future illness it was not within the coverage of the hospital policy, but if the post-partum depression was serious enough to ¡be classified as a sickness, the operation was within the coverage, and the issue should be submitted to the jury.</p> <p>3. Same—</p> <p>■Serious emotional depression, even though not amounting to insanity, is ,akin to it, land insanity is generally held to be a sickness within the meaning of ia health and accident policy.</p> <p>4. Trial § 22—</p> <p>Discrepancies in the evidence are for the jury and not the court</p>

<p>1. Rills and Notes § 1—</p> <p>A check is a bill of exchange drawn on a bank and. payable on demand, G-jS. 25-192, and is an acknowledgment of indebtedness and an unconditional promise to pay if tike drawee refuses payment on presentment.</p> <p>2. Bills and Notes § 4—</p> <p>A negotiable instrument is deemed prima fiaoie to be su-p-p-arted by a valuable consideration and want of consideration is an affirmative defense which must be pleaded.</p> <p>Bills and notes $ 17-Where defendant admits the issuance of cheeks in stipulated amounts to plaintiff in .payments on account, and -that one check was returned for insufficient funds and the other .ratunrued. after defendant had stopped payment, and defendant does not plead want of nonsideratian, plaintiff is entitled to judgment on tide pleadings, and the count correctly excludes evidence of want of consideration.</p> <p>4. Bills and Notes § 10—</p> <p>Tibe drawer of a check has the right prior to acceptance by the bank to stop payment, but his revocation of the hank’s authority to pay 'the check ■does not discharge his liability to the payee or holder.</p> <p>5. Pleadings §§ 29, 30—</p> <p>Allegations of .the complaint admitted in the answer are not in issue, iand when the answer admits all facts essential to plaintiff’s cause of action and fails to set up any defense or new matter sufficient in law to avoid plaintiff’s claim, judgment on the pleadings is proper.</p>

<p>Appeal by plaintiff from Braswell, J., April 1963 Session of John-STON.</p> <p>Plaintiff denominates this an action for the wrongful foreclosure of a deed of (trust. She sues the purchasers of the property who are the holder of the note land deed of trust and his wife. The ease was heard on a motion to ©trike and a demurrer to .the complaint.</p> <p>In summary, the allegations remaining in the complaint after the judge ¡ruled- upon the motion to strike are: On October 7, 1957, plaintiff .and her husband purchased a house and lot -as tenants by the en-tireties in Bladen County from F. L. Boole. To secure the ¡balance of the purchaise price they executed a note 'and -deed -of trust to- him in the amount of $2,370.21. On August 19, 1959, Poole transferred the note ■and deed of trust to the defendant O. R. Davis -and thereafter plaintiff paid him various sums on ¡both the principal and interest, the last payment having been made on January 6, 1962, leaving a balance of $1,510.00 then due. On March 31, 1962, without notifying plaintiff as he agreed to do, Davis called on the .trustee to foreclose the -deed of trust. The foreclosure was completed on May 21, 1962 and a deed was executed to the defendant C. R. Davis 'and .his wife who- had conspired to withhold from the plaintiff all notice of the foreclosure and thereby wrongfully and fraudulently obtained title to the property. On July 18, 1962, after plaintiff had discovered the sale, ¡she called on defendants to reconvey the property to her upon payment in full of the indebtedness but they refused to do so. The fair market value of the property was $5,000.00 ’and ©he is entitled to -recover the difference between its value ¡and the amount -due on the mote -or $3,490.00. Plaintiff also prayed -for punitive damages.</p> <p>Over plaintiff’s obj ection .and exception, -paragraphs 6, 7, 8, 9, 10, 12, 13, -and 14 of the complaint, or portions thereof, were stricken. Except ¡when quoted, these -stricken portions are ¡summarized as follows: At the time defendant C. R. Davis ¡acquired the plaintiff’s mote and deed of (trust the defendants knew that plaintiff’s husband “was an alcoholic •and completely irresponsible with respect to the payment of debts.” The plaintiff was gainfully -employed -and informed defendants “that she would continue to do the best ©he could in view of the condition of ¡her husband.” After tibe assignment, C. R. Diavis “contracted and agreed with the plaintiff thait so long as she kept the interest .paid on the aforesaid indebtedness he would not attempt to foreclose her house and lot, 'and that she and her children, could stay in the home so long ■as the interest was paid, and that in any event he would give her ample notice of hiis intention to foreclose her .property, so. that she would have an opportunity to refinance said indebtedness with someone else.” Pursuant tio the “neiw arrangement entered into between the plaintiff and the said C. R. Davis,” -and relying upon it, she performed her part of the new contract. C. R. Davis “reaffirmed and acknowledged his contract and agreement with plaintiff” every time she made a payment. About the time oif the last payment on January 6, 1962, plaintiff left her husband because of his excessive drinking and moved to Johnston County with her children. C. R. Davis “could have easily ascertained her .whereabouts and her .address in Clayton.”</p> <p>After allowing the motion to strike the above allegations, the judge sustained the defendant®’ demurrer ore terms to the complaint for failure to state -a cause .of action. In. response to his Honor’s question, plaintiff announced that she did not desire to amend the complaint. He .entered a judgment dismissing the action and plaintiff appealed.</p>

Appeal by defendant from McKinnon, J., February, 1963 Regular Civil Session, AlamaNCe 'Superior Court. Tibe plaintiff, a guest passenger in defendant’s Ausibin-Healy autoi-mobile, instituted1 this civil action to recover damages for personal injury sustained as a result of an automobile accident allegedly caused by defendant’s negligence. The accident occurred about 2:30 in the afternoon of August 31, 1961, on Highway No. 29, a few miles north of Greensboro.

<p>1. Injunctions. § 14—</p> <p>■Where injunction is the sole relief sought and -plaimitiif’s evidence at ¡the final hearing fails to make out a cause of -action for th-e relief, dismissal of the action is proper.</p> <p>2. Contracts § 7—</p> <p>A contract not to engage in competitive employment with, the employer after termination of the employment ordinarily must be in writing, be supported by a valid consideration, ¡and be reasonable as to terms, time, and territory.</p> <p>3. Same—</p> <p>Where plaintiff’s evidence establishes -that defendant had been working ■at the same employment for more than a year when defendant signed the (Comtraat containing a covenant restricting activities by defendant in competition with plaintiff after the termination of the employment, and plaintiff’s evidence fails to show that any increase .in defendant’s salary was related to the covenant.</p>

<p>Appeal by defendants Andrew Olese Felder and wife, from Biddle, S. J., April 22, 1963 Session of Forsyth.</p>

Appeal by defendants from Gambill, J., regular Jun-e 10, 1963, Session, DavidsoN Superior Court. This proceeding was here at the Spring Term, 1963. The Court remanded with -direction that the Superior Court Judge fix the amount to be paid' to M. E. Gilliam, as Commissioner, for hiis services in the proceeding. In a de novo hearing, Judge Gambih found $5,500.00 to ■be reasonable compensation and ordered payment from the proceeds of the sale.

<p>1. Larceny §§ 1, 10—</p> <p>Larceny from the person is a felony, G.S. 14-72, and the punishment therefor can be imprisonment for ten years. G.S. 14-70.</p> <p>2. Criminal Law § 131—</p> <p>Where defendant seeks and obtains a new trial he takes the risk of conviction of the crime charged in ithe bill of indictment even though the 'Original conviction may have been for a less ofEemse embraced therein, and the fact that different judges impose different .punishment does not invalidate the sentence imposed at a second .trial.</p> <p>3. Indictment and Warrant § 17—</p> <p>The fact that the indictment charges that the crime was committed on. one day and the evidence sets ithe date five days thereafter ordinarily is not a material variance.</p> <p>4. Criminal Law § 131—</p> <p>The court is not compelled to give defendant credit for the period defendant spent in prison before a valid trial was had.</p>

Appeal by defendant from Shaw, This is 'an action for alimony without 'divorce. Plaintiff also asks for Counsel fees and subsistence pendente lite. She alleges in- her complaint facts which, if established, would support an award of alimony. Defendant by 'answer admitted (the alleged marriage and ibirtih of a dhild. He ¡denied the remaining allegations necessary .for an award of alimony.

Appeal by the defendant from Phillips, J., May 27, 1963 Session of Waice. The plaintiff wife, alleging that defendant had wilfully abandoned her and the minor child of their marriage, instituted this action under G.S. 50-16 to recover a reasonable subsistence and counsel fees.

<p>Appeal -by plaintiffs from Latham, S. J., August 1963 Special Civil Session of Durham.</p>

<p>Appeal -by plaintiff .from MacRae, S. J., 15 April 1963 Civil “B” Session of Mecklenburg.</p> <p>C-ivil action 'by plaintiff, a paying patron of defendant’s theatre, to ■recover damages -f-or -personal injuries sustained by her when she fell in -descending -a ¡stairway from the second floor of the theatre where the rest room. was. She -alleges that -her fall and injuries' were proxinuately caused by defendant’s negligence in having the stairway inadequately lighted, in removing the carpet from the steps, and leaving ¡a raised wooden strip on the front edge of each step, and in maintaining a ¡fragile, -inadequate, and unstable railing along the -outer edge of the stains.</p> <p>Each party offered evidence in support of the allegations in her or its pleading.</p> <p>The trial court submitted to- .the jury the customary issues in such cases -oif negligence, contributory negligence, and damages. The jury answered the first issue, as to- whether plaintiff was injured by the -negligence of defendant as -alleged in the complaint, No.</p> <p>From >a judgment that plaintiff recover nothing from defendant and taxing her with the costs, she appeals.</p>