Volume 296 — North Carolina Reports

1. Eminent Domain 5 — amount of compensation — parcels owned by individual and corporation — no unity of ownership A parcel of land owned by an individual and an adjacent parcel of land owned by a corporation of which that individual is the sole or principal shareholder cannot be treated as a unified tract for the purpose of assessing condemnation damages. Even if such treatment were permitted, there would be no unity of ownership where the corporation is attempting a reorganization under Chapter X of the Federal Bankruptcy Act and the title to the corporation's property is vested in the trustee in bankruptcy. 2. Eminent Domain 5 — amount of compensation — parcels owned by individual and corporation — no unity of use The intended future development of a tract owned by an individual for use in conjunction with an adjacent tract owned by a corporation of which the individual is sole shareholder and used for a commercial shopping center is not adequate to support a finding of unity of use so that the two tracts may be treated as unified for the purpose of determining damages for the condemnation of a portion of the individual's tract.

1. Criminal Law 102.5 — remarks by district attorney improper — no prejudice to defendant Though remarks by the district attorney that he could have tried defendant for first degree murder, that he believed defendant would hire somebody to kill and that a witness had lied for his son were improper, the trial judge, in light of the strong evidence of defendant's guilt, did not commit prejudicial error by failing to instruct the jury to disregard the remarks or by failing to declare a mistrial on his own motion. 2. Criminal Law 86.9 — State's objections sustained — witness answers anyway — no prejudice to defendant Defendant's assignment of error to the trial judge's ruling sustaining the State's objections to questions, directed to a witness who had plea bargained, which sought to elicit statements made to him<page_number>Page 48</page_number> by his counsel that he would be tried for first degree murder if he did not testify against defendant is without merit, though such declarations were admissible to evidence the witness's state of mind, since, after a brief delay, the witness answered the question, and the information sought by the questions was already in the record. 3. Criminal Law 66.7 — pretrial photographic identification — no taint — independent origin of in-court identification In a second degree murder prosecution the trial court did not err in denying defendant's motion to strike identification testimony, since defendant never objected throughout the witness's lengthy testimony, and since the court, upon defendant's motion to strike, made findings supported by the evidence and concluded that a pretrial photographic identification procedure was not impermissibly suggestive and that the witness's identification was of independent origin and not tainted by any pretrial procedure. 4. Criminal Law 117.2 — interested witness — jury instructions proper Defendant's contention that the trial judge erred in failing to explain to the jury why a witness who had plea bargained was an interested witness is without merit since it was clear from the court's instruction on interested witnesses, given ex mero motu, and from the record evidence why the witness was an interested witness. 5. Homicide 2 — accessory before the fact to second degree murder — punishment greater than conviction for second degree murder — accessory before the fact is lesser included offense Defendant's contention that the crime of accessory before the fact to second degree murder is not a lesser included offense of the charge of second degree murder because a conviction of accessory before the fact carries a mandatory sentence of life imprisonment while a conviction of second degree murder permits the imposition of a discretionary sentence ranging from two years to life imprisonment is without merit since the Supreme Court has held that the crime of accessory before the fact is included in the charge of the principal crime.

1. Jury 6 — examination of jury as whole rather than individually — no abuse of court's discretion The trial court did not abuse its discretion in denying defense counsel permission to ask each prospective juror, rather than the entire panel, a question concerning their willingness to return a verdict of not guilty if defendant could prove her insanity.<page_number>Page 59</page_number> 2. Jury 7.13 — no death penalty to be sought for first degree murder conviction — number of peremptory challenges In a first degree murder prosecution where the district attorney announced at the beginning of the trial that the state would not ask for the death penalty, the case lost its "capital nature" and the defendant was therefore not entitled to fourteen peremptory jury challenges. 3. Jury 7.8 — refusal to acquit because of insanity — challenge for cause improperly denied The failure of the trial court to dismiss for cause three prospective jurors who indicated that they would not be willing to return a verdict of not guilty by reason of insanity even though defendant introduced evidence that would satisfy them that she was insane at the time she allegedly shot her sister, coupled with defendant's subsequent exhaustion of her peremptory challenges, forced defendant to accept a jury which could not be considered impartial, and she was therefore entitled to a new trial. 4. Criminal Law 5 — insanity — burden of proof — issue properly submitted to jury The burden of proving insanity is properly placed on the defendant in a criminal trial, and even if the evidence of insanity presented by defendant is uncontradicted by the state, it is the defendant's burden to satisfy the jury of the existence of the defense. The state's evidence in this case consisting of testimony by witnesses who observed defendant at the time of the crime and who saw her Mee, coupled with the presumption of sanity and the defendant's burden of proof, made the issue of insanity one which the court should properly have submitted to the jury. 5. Criminal Law 112.6 — insanity — presumption — burden of proof on defendant — instructions proper The trial court's instruction that "sanity or soundness of mind is a normal condition of men and women; therefore, everyone is presumed sane until the contrary is made to appear," followed by an instruction on the test for insanity and a reminder that defendant had the burden of proving the existence of the defense was a proper instruction on the defense of insanity.

1. Arson 4.1 — burning of apartment — sufficiency of evidence of arson Evidence was sufficient to be submitted to the jury in a prosecution for arson where it tended to show that defendant and another person lived in an apartment building which contained four occupied apartments; defendant and his apartment mate quarrelled; defendant then poured kerosene on the floor and threw lighted matches at it; the kerosene ignited and the flames consumed the apartment; and when an officer arrived at the scene of the fire, he noted the odor of kerosene about defendant. 2. Constitutional Law 30; Criminal Law 131 — failure of prosecutor to give defendant access to lab report — grounds for new trial In a prosecution for arson, failure by the prosecutor to give defendant access to a laboratory report showing no presence of kerosene or other flammable accelerants on defendant's outer clothing was grounds for a new trial. 3. Constitutional Law 30 — request for voluntary discovery — compliance promised by prosecutor — due diligence of defendant A defendant in a criminal case seeking discovery of a laboratory report has exercised due diligence within the meaning of G.S. <cross_reference>15A-1415</cross_reference>(6) despite not making a motion to the court to compel discovery when he has made a request for voluntary discovery to which the prosecutor has agreed to comply and there is nothing that would put him on notice that the prosecutor has in fact failed to comply.

1. Master and Servant 96.1 — workmen's compensation — award for permanent partial disability — sufficiency of evidence Evidence was sufficient to support the findings of the Industrial Commission that plaintiff sustained a fifty percent permanent partial disability or loss of use of his back and that the healing period ended on or before 25 March 1976. 2. Master and Servant 72 — workmen's compensation — back injury — partial disability The language of G.S. <cross_reference>97-31</cross_reference> compels the conclusion that if by reason of a compensable injury an employee is unable to work and earn any wages he is totally disabled, G.S. <cross_reference>97-2</cross_reference>(9), and entitled to compensation for permanent total disability under G.S. <cross_reference>97-29</cross_reference> unless, as in this case, all his injuries are included in the schedule set out in G.S. <cross_reference>97-31</cross_reference>. 3. Master and Servant 65.2, 94 — workmen's compensation — back injury compensated — evidence of injury to legs — failure to make findings Where there was medical testimony that plaintiff suffered leg pain related to his back injury which was compensable under the Workmen's Compensation Act, one doctor testified that plaintiff had absent ankle jerk on the left "and some numbness of the lateral calf on the left," and plaintiff testified that he was currently suffering pain in his back and legs, that his legs hurt when walking or driving, the Industrial Commission erred in failing to make any attempt to elicit medical evidence or to find facts as to whether plaintiff had suffered any permanent loss of use of either or both legs.

1. Contracts 17.2 — automobile dealer franchise agreement — mutual termination agreement — notice and hearing requirements inapplicable The notice and hearing provisions of G.S. <cross_reference>20-305</cross_reference>(6) for termination of an automobile dealership franchise agreement apply solely to unilateral franchise terminations by the manufacturer and do not extend to mutual agreements between manufacturer and dealer to terminate a franchise. 2. Duress 1 — termination of automobile dealership franchise — no economic duress The evidence supported the trial court's finding that an agreement terminating an automobile dealership franchise was not the result of coercion or duress imposed by the automobile manufacturer. 3. Accounts 2 — account stated For an account stated to arise, it is essential that there be an agreement between parties that an account rendered by one of them to the other is correct. 4. Accounts 2 — transfer of indebtedness — letter not account stated A letter from plaintiff to defendant automobile dealer stating that parts and tools from another dealership had been placed in defendant's inventory and that the indebtedness for these parts and tools would be transferred to defendant's account was insufficient to establish an account stated where there was no evidence that plaintiff ever submitted to defendant an account reflecting the value of the transferred inventory.

1. Criminal Law 53 — medical expert testimony — information relied on to form opinion admissible A physician, as an expert witness, may give his opinion, including a diagnosis, based either on personal knowledge or observation or on information supplied him by others, including the patient, if such information is inherently reliable even though it is not independently admissible into evidence, and, if his opinion is admissible, the expert may testify to the information he relied on in forming it for the purpose of showing the basis of the opinion. 2. Criminal Law 63 — evidence of defendant's insanity — conversations between defendant and psychiatrist admissible A psychiatrist's findings and diagnosis as to defendant's mental state should have been admitted into evidence and the psychiatrist<page_number>Page 455</page_number> should have been allowed to testify as to the content of his conversations with defendant in order to show the basis for his diagnosis, since defendant was sent to the psychiatrist as a patient for treatment, thus lending reliability to the statements made by defendant to the doctor; the doctor's examination was a thorough, carefully designed attempt to gain an understanding of defendant's state of mind; and conversation, and its interpretation and analysis by a trained professional, is superior to any other method the courts have for gaining access to an allegedly insane defendant's mind. Because testimony concerning defendant's conversations with the doctor was not substantive evidence, there was thus no conflict between its introduction and the rule that a criminally accused's declarations to third parties generally to show his state of mind are not admissible as an exception to the hearsay rule. 3. Criminal Law 63 — insanity of ancestors — requirements for admission of evidence In order for insanity among a person's ancestors or relatives to be relevant, it must first be shown that (1) there is independent evidence of insanity on the part of the person, (2) the same type of mental disorder is involved, and (3) the mental disorder is hereditary in character. 4. Criminal Law 73.3 — statements not made in contemplation of crime — admissibility to show state of mind Declarations made by defendant to various other persons before the date and not in contemplation of the killings with which he was charged were admissible as tending to show defendant's state of mind.

Eminent Domain 4.3; Gas 6 — interstate pipeline company — right of eminent domain — origin of pipeline immaterial G.S. <cross_reference>62-190</cross_reference> clearly confers the right of eminent domain upon interstate pipeline companies incorporated or domesticated under the laws of N.C., regardless of whether their pipelines originate in N.C.

1. Master and Servant 55.5 — workmen's compensation — death by drowning — accident arising out of and in the course of employment The death of a fourteen-year-old employee of a sanitary district by drowning while he was attempting to wade across a reservoir to complete his work of cutting weeds on the other side arose out of and in the course of his employment, although he had received general instructions at an earlier time not to go into the water, where the place at which he stepped into the water was shallow and the danger was not obvious, and decedent's actions were thus not so extreme as to break the causal connection between his employment and his death. 2. Master and Servant 94.4 — scope of hearing for further testimony Where the Industrial Commission remanded a workmen's compensation case for the taking of further testimony as to average weekly wage, and the notice of hearing stated that the purpose of the further hearing was to take testimony "bearing on the question of the rate at which compensation shall be paid," the hearing commissioner on remand properly excluded evidence on the issue of compensability and properly limited the testimony to matters relating to wage rates. 3. Master and Servant 71.1 — workmen's compensation — death of minor employee — computation of average weekly wage Under G.S. <cross_reference>97-2</cross_reference>(5), compensation for the death of a minor employee must be based on the average weekly wage of adults employed in a similar class of work by the same employee to which decedent would probably have been promoted had he not been killed if such method can<page_number>Page 528</page_number> be used, and it is only when such method cannot be used that compensation may be based upon a wage sufficient to yield the maximum weekly compensation benefit.

1. Libel and Slander 1.1. — three classes of libel The three classes of libel are (1) publications obviously defamatory which are called libel per se, (2) publications susceptible of two interpretations one of which is defamatory and the other not,<page_number>Page 534</page_number> and (3) publications not obviously defamatory but when considered with innuendo, colloquim [colloquium], and explanatory circumstances become libelous, which are termed libels per quod. 2. Libel and Slander 2 — libel per se defined Libel per se is the publication, expressed in writing or printing, or by signs and pictures which when considered alone without innuendo tends to subject one to ridicule, public hatred, contempt or disgrace, or tends to impeach one in his trade or profession. 3. Libel and Slander 5.2 — excerpt from memorandum about employee — no libel per se A memorandum prepared by a bank vice president was not libelous per se where the alleged libel was a short excerpt from a document of about a page and a half which a bank employee furtively observed on the vice president's desk while he was away. 4. Libel and Slander 6 — memorandum about employee — no name mentioned — reading by another employee — no publication Where a bank employee observed an allegedly libelous memorandum on the bank vice president's desk, there was no publication of libel to the bank employee since there was no evidence that the witness knew that the handwritten memorandum which she observed was referring to plaintiff. 5. Libel and Slander 10.1 — memorandum about employee — qualified privilege Evidence was insufficient to support a finding of a publication of libel when a bank vice president forwarded a copy of a memorandum concerning plaintiff to the president of the bank and filed the original with the bank's personnel department, since the vice president was clearly acting under a qualified privilege in these instances; moreover, there was nothing in the record to show that the memorandum was libelous since neither the document itself nor a copy thereof was included in the record and there was no testimony before the jury as to what the typed memorandum contained.

Master and Servant 60.4 — workmen's compensation — death by drowning in lake during lunch hour — accident not arising out of and in course of employment The death of a fifteen-year-old laborer by drowning while swimming in a lake on his employer's premises during his lunch hour when the lifeguard was not on duty did not arise out of and in the course of his employment where he had been assigned on the day of his death to cut grass in an area at least one-half mile from the lake; deceased's body was found outside the chained area of the lake; deceased had not taken a swimming test; and rules posted in a place where one using the lake could not avoid seeing them permitted swimming in the lake before 4:30 p.m. only under the supervision of the lifeguard and permitted only those who had passed a swimming test given by the lifeguard to swim outside the chained area at any time, since all the evidence showed that deceased was acting in contravention of specific instructions from his employer and that he was engaged in an independent recreational activity totally unrelated to his work of cutting grass.

1. Insurance 4 — form of binder No specific form or provision is necessary to render a memorandum or an oral communication intended as an insurance binder a valid contract of insurance, and it is not necessary that the writing or oral communication set forth all the terms of the contemplated contract of insurance in order to constitute a valid binder. 2. Insurance 2.3 — failure to procure insurance — nature and duration of risk — sufficiency of evidence The evidence was sufficient for the jury on defendant's counterclaim against plaintiff insurance agent for breach of an oral agreement to procure insurance on a Franklin logger which was subsequently destroyed by fire, notwithstanding there was no evidence of the exact nature of the risk to be insured against or the duration of the risk, where defendant testified as to the subject matter, amount of coverage, and the premium to be paid, and where plaintiff's testimony that he had started insuring defendant's logging equipment the year before the agreement in question would permit the jury to find that upon defendant's request plaintiff would obtain coverage consistent with the parties' previous dealings.

1. Criminal Law 92.5 — defendants charged with same crimes — severance properly denied The trial court did not err in denying defendants' motion for severance where they were tried for the murders of the same two people; neither defendant made an extrajudicial statement or confession that was introduced at trial; and neither showed any prejudice stemming from the joint trial.<page_number>Page 608</page_number> 2. Constitutional Law 30 — defendant's half-brothers and half-sister — welfare files — disclosure properly denied In a prosecution for first degree murder where the evidence tended to show that one defendant's half-brothers and half-sister were present at the scene of the crimes, the trial court did not err in ordering that welfare department files concerning the half-brothers and half-sister not be released to defendants or the State, since the files in question were not in the prosecutor's possession, custody or control and therefore were not subject to discovery as a matter of right; almost all the material asked for was privileged under G.S. <cross_reference>8-53.3</cross_reference>, as it consisted primarily of reports and test results on the children by practicing psychologists; and the trial court determined that disclosure of the files was not necessary to a proper administration of justice. 3. Searches and Seizures 15 — stolen vehicle — standing to challenge lawfulness of search Defendants had no standing to object to the search of a truck since the truck belonged to neither defendant but had been stolen by them, and in fact neither defendant was present at the time of the search. 4. Criminal Law 29.1 — request for psychiatric examination — denial proper The trial court did not abuse its discretion in denying one defendant's motion for a psychiatric examination where defendant had been in custody for over four months at the time he first requested the examination; no showing of any merit was made until the day of trial; defendant was present at his arraignment, entered a general plea of not guilty, and raised no question about his capacity to proceed at that time; and an affidavit filed by defendant's attorney in support of his motion was more of an indication that defendant did not have cancer or a brain tumor which would affect his capacity to proceed than an indication that he did have such a malady. 5. Constitutional Law 30 — defendant's statement to third person — discovery not required The State was not required pursuant to G.S. <cross_reference>15A-903</cross_reference>(a)(2) to disclose to defendant the substance of a statement allegedly made by him to a third person. 6. Criminal Law 57 — ballistics expert — granting of motion to suppress testimony — further evidence not prejudicial Defendant failed to show error in the trial court's allowing the State to examine a ballistics expert further on the comparison between two exhibits after the court had granted defendant's motion to suppress ballistics testimony, since defendant did not include the voir dire in the record and it was therefore impossible to determine what material the trial judge was excluding by his order to suppress; the testimony further elicited from the witness merely clarified his former statement; and the later testimony was in fact beneficial to defendant. 7. Criminal Law 86.4 — earlier warrant against defendant — inquiry for impeachment improper — error inconsequential Though the trial court erred in overruling defendant's objection to the State's question as to whether there was a warrant out against<page_number>Page 609</page_number> him for car larceny at an earlier time, such error was inconsequential in light of the overwhelming evidence of defendant's guilt.

1. Principal and Agent 9 — liability of principal for torts of agent — degree of control Whenever the principal retains the right to control and direct the manner in which details of work are to be executed by his agent, the doctrine of respondeat superior operates to make the principal vicariously liable for the tortious acts committed by the agent within the scope of his employment. Conversely, a principal is not vicariously liable for the tortious acts of an agent who is not subject to the control and direction of the principal with respect to the details of the work and is subordinate only in effecting a result in accordance with the principal's wishes. 2. State 6 — Tort Claims Act — foster home program — County Director of Social Services A County Director of Social Services and his staff are agents of the Social Services Commission of the Department of Human Resources with respect to the placement of children in foster homes since the Social Services Commission has been given the right to control and direct the manner in which the County Director and his staff are to place children in foster homes. Therefore, the Department of Human Resources is liable under the doctrine of respondeat superior for the negligent acts of the County Director and his staff with respect to the placement of children in foster homes, and the Industrial Commission has jurisdiction under the Tort Claims Act of a claim based on such alleged negligence of the County Director and his staff.

1. Criminal Law 101 — juror speaking to husband — no admonitions required — no showing of prejudice Defendant failed to show any prejudice to himself where the trial court apparently allowed a juror to step out into the courtroom or to the door of the courtroom and deliver a set of keys to her husband and the court did not provide the juror with admonitions as required by G.S. <cross_reference>15A-1236</cross_reference>, since the admonitions prescribed by that statute are not required in a situation like the one involved here, and since there was nothing to suggest that the court permitted the juror to converse with her husband concerning the case. 2. Homicide 15.4 — answer to hypothetical question — defendant's responsibility — expert's opinion admissible Though a hypothetical question asked of defendant's expert witness on cross-examination was not very clear, it and the witness's answer were not prejudicial to defendant, since, by his answer, the witness: (1) stated his conclusion that alcoholic intoxication precipitated commission of the offenses, and intoxication was at least a part of defendant's defense; (2) presumed that the intoxication was voluntary, and there was no evidence to the contrary, and (3) assumed that defendant would be responsible for his actions, which was, in effect, a statement of the witness's opinion that defendant was responsible for his criminal behavior. 3. Homicide 7.1 — defendant intoxicated — instruction on unconsciousness not required In view of the overwhelming evidence that defendant's mental state at the time of the commission of the offenses in question was brought about by his excessive consumption of intoxicants, the trial court did not err in refusing to instruct the jury on the defense of unconsciousness. 4. Homicide 30.2 — failure to submit lesser offense of voluntary manslaughter — no error The trial court in a murder prosecution did not err in failing to submit voluntary manslaughter as an alternate verdict since there was no merit to defendant's contention that, when the husband of one of the murder victims stood up and told defendant to leave his home, that was sufficient provocation to incite him to commit an unintentional act. 5. Burglary and Unlawful Breakings 6.4 — jury instructions — consent — no error Defendant's contention that the trial court erred in its jury instruction relating to breaking and entering in that it did not explain adequately the element of consent was without merit; and even if defendant's argument were valid, he failed to show prejudice since the court consolidated the misdemeanor breaking and entering conviction with the felonious assault conviction for purpose of judgment and imposed one sentence within the limits allowed for the felony.<page_number>Page 694</page_number>