Volume 279 — North Carolina Reports

1. Eminent Domain 2 — obstruction of access to highway An owner whose access to a public road is a right-of-way over adjoining property is entitled to just compensation when the State deprives him of this easement. 2. Eminent Domain 13 — landowner's action for compensation — statute of limitations Although a property owner is always entitled to just compensation when his land is taken for public use, he must pursue the prescribed remedy within the time specified. 3. Eminent Domain 2, 13 — erection of fence across right-of-way — taking of property — action for compensation — statute of limitations A taking of plaintiffs' property occurred when the Highway Commission erected a permanent fence obstructing their right-of-way across adjoining property which gave them access to a public road, not at the time plaintiffs first sought to use the easement and were prevented from doing so by the fence; consequently, the two-year statute of limitations for instituting an action under G.S. <cross_reference>136-111</cross_reference> to obtain compensation for the taking began to run on the date the fence was erected.<page_number>Page 189</page_number>

1. Uniform Commercial Code 3 — date of application Uniform Commercial Code is not applicable to transactions which occurred prior to the effective date of the Code. G.S. <cross_reference>25-10-101</cross_reference>. 2. Rules of Civil Procedure 1 — date of application The Rules of Civil Procedure held applicable to a civil action even though commenced on 3 January 1968. Session Laws of 1967, Ch. 954, 10. 3. Negligence 1 — violation of safety statute Violation of a safety statute is negligence per se. 4. Agriculture 9.5; Negligence 1 — violation of seed law — issue of negligence Evidence that seed dealer violated the North Carolina Seed Law is not necessarily evidence of negligence. 5. Agriculture 9.5 — sale of mislabeled tomato seed — issue of dealer's negligence — evidence A seed dealer was not negligent in selling mislabeled tomato seed to the plaintiff, a farmer, where there was evidence that the dealer had purchased the seed from a reputable supplier, that the dealer received the seed already mislabeled as the variety desired by the plaintiff, and that this mislabeling could not be detected by an examination of the seed. 6. Rules of Civil Procedure 8 — construction of complaint Allegations of the complaint must be liberally construed. G.S. <cross_reference>1A-1</cross_reference>, Rule 8. 7. Rules of Civil Procedure 8 — claim for relief — pleading of two or more statements The pleader may set forth two or more statements of a claim in the same count. G.S. <cross_reference>1A-1</cross_reference>, Rule 8(e)(2). 8. Agriculture 9.5 — sale of mislabeled tomato seed — dealer's breach of contract — sufficiency of allegations and evidence Plaintiff's evidence that plaintiff contracted with a seed dealer for the purchase of Heinz 1350 tomato seed, that such tomatoes are suitable for table use, and that the dealer delivered seed which produced tomatoes suitable only for making tomato paste is sufficient to support a finding by the jury of breach of contract by the dealer. 9. Contracts 4 — failure of consideration — rights of disappointed party Failure of consideration gives the disappointed party a right to rescind the contract and recover what he has paid or to defend a suit<page_number>Page 193</page_number> brought against him thereon, for the reason that the contract is a nullity. 10. Contracts 21; Agriculture 9.5 — breach of contract — sale of tomato seed A seed retailer who contracted to sell and deliver Heinz 1350 tomato seed but who delivered instead the seed of a completely different type of tomato is liable for damages for breach of contract. 11. Agriculture 9.5; Sales 8 — sale of tomato seed — extent of dealer's warranty A printed statement on a seed catalogue, order blanks, and seed packets, that the seed dealer warrants "to the extent of the purchase price" that the seed delivered is as described on the container, did not, as a matter of law, become a part of the contract of sale between a farmer and the dealer for tomato seed, since the statement was not in such a position as would call it to the attention of the farmer. 12. Contracts 21 — breach of contract — liability for damages A party to a contract may not, by his unilateral declaration, extraneous to the contract, free himself from or limit his liability for damages for his breach of it. 13. Contracts 12 — construction of contract — unambiguous language — role of court and jury While the construction of clear and unambiguous language in a contract is for the court, it is for the jury to determine whether a particular agreement was or was not part of the contract actually made by the parties. 14. Contracts 6 — violation of public policy A provision in a contract which is against public policy will not be enforced. 15. Contracts 6 — violation of public policy — separability of provisions When the agreement found violative of public policy is separable from the remainder of the contract, the contract will be given effect as if the provision so violative of public policy had not been included therein. 16. Sales 22; Statutes 5 — protection against mislabeling of goods — statutory exemptions In legislation designed for the protection of a segment of the public from the mislabeling of goods sold, exemptions are to be strictly construed. 17. Agriculture 9.5 — seed law — exemption from penalties — dealer's breach of contract Provision of the N.C. Seed Law exempting from the penalties thereof a dealer who sells mislabeled vegetable seeds under designated circumstances does not absolve the dealer for breach of contract arising out of the sale of mislabeled seed. G.S. <cross_reference>106-277.10</cross_reference>(e); G.S. <cross_reference>106-277.24</cross_reference>.<page_number>Page 194</page_number> 18. Contracts 29 — breach of contract — limitation of damages Ordinarily, parties to a contract are free to enter into agreements limiting the amount which may be recovered for breach of their contract; nevertheless, the law does not look with favor on provisions which relieve one from liability for his own fault or wrong. 19. Agriculture 9.5 — warranty of seed dealer — seed law — public policy A seed dealer's limitation of his warranty of tomato seed "to the extent of the purchase price" is contrary to the public policy of the State as declared in the Seed Law and is invalid. 20. Damages 8; Agriculture 9.5 — sale of mislabeled tomato seed — breach of contract — damages In a farmer's action against a seed dealer for breach of contract arising out of the sale of mislabeled tomato seed, the seed having produced tomatoes suitable only for making tomato paste rather than the higher-grade tomatoes suitable for table-eating, the rule against the allowance of speculative or conjectural damages is not violated by permitting the jury to estimate, upon testimony given by experts in truck farming, the size and value of the crop which would have been produced had the seed been of the higher-grade variety. 21. Agriculture 9.5 — sale of mislabeled tomato seed — action for breach of contract — measure of damages In a farmer's action against a seed dealer for breach of contract arising out of the sale of mislabeled tomato seed, the seed having produced tomatoes suitable only for making tomato paste rather than the higher-grade tomatoes suitable for table eating, the measure of damages is the value of the crop which the jury so finds would have been raised had the seed been of the higher-grade variety, less the value of the crop actually raised and less any additional expense plaintiff would have had to incur to produce the crop contemplated.

1. Master and Servant 10 — contract of employment — termination Nothing else appearing, a contract of employment which contains no provision for the duration or termination of employment is terminable at the will of either party irrespective of the quality of performance by the other party. 2. Schools 13 — school teachers — termination of employment by county board — statement of charges — hearing A county board of education may terminate the employment of a teacher at the end of the school year without filing charges against the teacher, or giving its reasons for the termination, or granting the teacher an opportunity to be heard. G.S. 115-142(b). 3. Schools 13 — school teachers — contract of employment — duration — rights conferred by statute A school teacher's contract of employment with a county board of education, which was entered into on 26 May 1967, gave her the right to continue her employment from year to year until the board terminated such employment at the end of the 1968-69 school year in the manner prescribed by statute. G.S. 115-142. 4. Schools 13 — school teachers — termination of employment — discretion of school board — grounds for termination A county board of education acted within its discretion, which was not reviewable on appeal, when it terminated a teacher's employment contract, at the end of the school year, on the grounds that (1) the board was simultaneously terminating the employment contract with the teacher's husband, which made it likely that the teacher herself would interrupt her employment with the county the following year, and (2) the teacher was teaching a subject for which she held no teacher's certificate.<page_number>Page 255</page_number> 5. Schools 13; Constitutional Law 20 — school teachers — procedures for dismissal and termination of employment — equal protection of the laws The statutes which prescribe one procedure for the dismissal of a school teacher during the school year, on grounds of immoral or disreputable conduct, and another procedure for the termination of a teacher's employment at the end of the school year, do not deny a teacher the equal protection of the laws. U.S. Constitution, Fourteenth Amendment; N.C. Constitution, Art. I, 17; G.S. 115-142; G.S. 115-145.

Arrest and Bail 3; Searches and Seizures 1 — arrest without warrant — probable cause — search of the person A police officer had probable cause to arrest defendant without a warrant for the felonies of breaking and entering and larceny after defendant went to a place in the woods where stolen TV's and other goods had been concealed, looked around, and then retraced his steps out of the woods; consequently, the search of the defendant following his arrest was lawful. G.S. 15-41(2).

Homicide 31; Criminal Law 135 — first-degree murder — death sentence — remand for sentence of life imprisonment Pursuant to the mandate of the Supreme Court of the United States, two first-degree murder cases in which the defendant received the death penalty in each case are remanded to the superior court with direction that the defendant be sentenced in each case to life imprisonment In the State's prison.

1. Homicide 21 — homicide case — sufficiency of the evidence — defendant's firing of the fatal shot. The evidence of defendant's guilt of second-degree murder or manslaughter was insufficient to be submitted to the jury, the homicide having occurred during a Saturday night scuffle at a rural crossroads, where the State offered uncontradicted evidence that the homicide victim died from a .25 bullet fired from a .25 automatic pistol, but there was no evidence that defendant had such a pistol at the time of the homicide or that he fired any pistol on that occasion. 2. Criminal Law 106 — motion for nonsuit — sufficiency of the evidence — question of law To withstand defendant's motion for judgment as of nonsuit, there must be substantial evidence against the accused of every essential element of the crime charged; whether the State has offered such substantial evidence presents a question of law for the court.

1. Criminal Law 23 — acceptance of guilty plea — voluntariness of the plea The acceptance of a defendant's guilty plea to second-degree murder will not be disturbed where there is plenary evidence to support the trial judge's findings that defendant freely, understandingly and voluntarily entered his plea. 2. Criminal Law 161 — appeal as an exception to the judgment — question presented The appeal itself is an exception to the judgment and presents the case for review only for errors appearing on the face of the record.

1. Criminal Law 104 — motion for nonsuit — consideration of evidence On motion for judgment of nonsuit, all admitted evidence favorable to the State, whether competent or incompetent, must be considered and must be deemed true. 2. Criminal Law 106 — motion for nonsuit — question presented On motion for judgment of nonsuit, the question for the court is whether there is substantial evidence to support a finding both that an offense charged in the bill of indictment has been committed and that the defendant committed it. 3. Rape 17; Criminal Law 9 — assault with intent to commit rape — sufficiency of evidence — aiding and abetting. State's evidence was sufficient to support a jury finding that defendant was a participant in an assault upon a female with intent to commit rape; it is immaterial whether defendant personally intended to rape the female if he, being present, aided and abetted his companions in their assault with such intent. 4. Rape 18 — assault with intent to commit rape — instructions on lesser offense of assault on a female Trial court, in a prosecution for assault on a female with intent to commit rape, was not required to instruct the jury on the lesser included offense of assault on a female, where all the evidence relating to the assault tended to show that the purpose of the assailants was to commit rape, and there was no evidence that the female was assaulted for any other purpose or for no purpose.<page_number>Page 574</page_number> 5. Rape 18; Indictment and Warrant 17 — assault with intent to commit rape — instruction as to date of offense — question of variance between instruction and indictment In a prosecution for assault on a female with intent to commit rape, an instruction which gave the date of the offense as 24 April 1970 was not prejudicially erroneous on the ground that the indictment alleged the offense to have occurred on 25 April 1970, where (1) all of the evidence was to the effect that the girl who was assaulted and her escort went to a school dance on the evening of April 24, that they both left the gymnasium around midnight, and that the assault occurred shortly thereafter; (2) the defendant did not claim an alibi; and (3) the defendant admitted to the investigating officer that he assaulted the girl. 6. Criminal Law 76 — admission of written confession into evidence — removal of introductory paragraph The removal of the introductory paragraph from defendant's written confession, prior to the introduction of the confession into evidence, was not prejudicial to the defendant, where the paragraph merely contained language that the defendant was making his statement after being advised of his rights and without any threats or promise of reward being made to him. 7. Criminal Law 76 — admissibility of confession — sufficiency of court's finding of voluntariness In a prosecution for assault on a female with intent to commit rape, findings by the trial court that the minor defendant's confession to the crime was freely, voluntarily, and understandingly made, held supported by the evidence on the voir dire, especially where the defendant himself testified on voir dire that he had not been threatened or coerced into making the statement, that he was not scared of the officer, and that he told the officer the truth. 8. Criminal Law 75 — contention that officer's interrogation of defendant was too brief Defendant's novel contention that the investigating officer did not take enough time in interrogating him, thereby violating his constitutional rights, held without merit.

1. Municipal Corporations 12 — electrocution of boy — action against municipality — sovereign immunity doctrine The doctrine of sovereign immunity completely bars an action against a municipality for the death of a 16-year-old boy who was electrocuted when he touched a guy wire maintained by the municipality as a part of its street lighting system. 2. Municipal Corporations 12; State 4; Constitutional Law 10 — modification of sovereign immunity doctrine — role of the Supreme Court Modification or repeal of the doctrine of sovereign immunity should come from the General Assembly, not from the Supreme Court.

Automobiles 126; Criminal Law 64 — admissibility of breathalyzer test results — requisites of admissibility Testimony relating to a breathalyzer test administered by a police officer qualified to give the test is held properly admitted in evidence in a drunken driving prosecution, and it was not necessary to the admissibility of such testimony that the State introduce a certified copy of the methods approved by the State Board of Health for administering the test. G.S. <cross_reference>20-139.1</cross_reference>(b).