Volume 30 — North Carolina Court of Appeals Reports

1. Contracts 16; Judgments 10 — consent judgment — no condition precedent A conveyance of land to defendant in accordance with the terms of a consent judgment was not a condition precedent to defendant's personal liability under terms of the consent judgment for interest<page_number>Page 11</page_number> and penalties occasioned by defendant's failure as an executor to file estate and inheritance tax returns. 2. Judgments 10; Rules of Civil Procedure 70 — consent judgment — summary judgment — survey — order of conveyance Where a consent judgment required plaintiff to convey to defendant 14 acres of a larger tract "To be surveyed" and provided that defendant would be personally liable for the payment of interest and penalties resulting from defendant's failure as executor to file estate and inheritance tax returns and that defendant's property would be liable for payment of the interest and penalties, the trial court properly entered summary judgment for plaintiff in an action to recover from defendant the amount of tax interest and penalties and properly ordered a survey of the 14-acre tract, required plaintiff to convey the 14-tract to defendant, and provided that such tract could be sold to satisfy defendant's obligation for the tax interest and penalties. G.S. <cross_reference>1A-1</cross_reference>, Rule 70.

Rules of Civil Procedure 6, 55 — motion for extension of time to plead — motion to set aside entries of default In an action for partition of land, the trial court did not abuse its discretion in (1) the denial of respondent appellant's Rule 6(b) motion for an extension of time to plead to crossclaims alleging that appellant has no interest in the property in question and (2) the denial of appellant's Rule 55(d) motion to set aside entries of default against him as to the crossclaims where appellant's affidavit stated that an attorney advised him that it was not necessary to file an answer to the petition for partition and that he did not consult an attorney about the crossclaims and was unaware that he had to file a responsive pleading to protect his interest in the property, and where affidavits of the other respondents purported to show that appellant had conveyed away his interest in the property in question.

1. Criminal Law 145, 154 — consolidated trial of defendants — multiple records on appeal — taxing of costs against attorneys Where attorneys appointed to represent three defendants in an appeal from a consolidated trial of defendants for the same offense caused three separate records on appeal to be filed in the appellate court, the attorneys were taxed with the costs of printing the two redundant records on appeal. App. R. 9(b) (5). 2. Criminal Law 92 — consolidation of cases against three defendants Cases against three defendants charged with the same offense were properly joined for trial although the solicitor's motion was not in writing. G.S. <cross_reference>15A-926</cross_reference>(b) (2). 3. Criminal Law 92 — consolidation of cases for trial — absence of motion Even in the absence of any motion, the trial judge may direct that criminal cases be consolidated for trial where proper grounds for joinder exist and when to do so will promote the ends of justice and facilitate proper disposition of the cases on the docket before him.<page_number>Page 68</page_number> 4. Criminal Law 113 — consolidated trial — instructions — consideration of guilt or innocence of each defendant separately The trial court's instructions in a consolidated trial of three defendants could not have misled the jury into believing that if they found one or more of the defendants guilty they were to find all three guilty; furthermore, any possible question as to this was removed when, after the jury foreman announced that the jury "combined it all and found all parties guilty as charged," the court refused to accept the foreman's statement as a verdict, again instructed the jury as to the permissible verdicts as to each defendant and told them that they must return a verdict as to each defendant, and the jury thereafter returned a verdict as to each defendant.

1. Criminal Law 145, 154 — appeal from trial of two defendants — two records on appeal — taxing of costs against attorneys Where attorneys representing two defendants in an appeal from a consolidated trial of both defendants for the same offense caused two separate records on appeal to be filed in the appellate court instead of one record, each attorney will be personally taxed with a portion of the costs of the unnecessary record. App. R. 9(b) (5). 2. Criminal Law 105 — motion for nonsuit — effect of introducing evidence Defendant, by introducing evidence, waived his right to except on appeal to the denial of his motion for nonsuit made at the close of the State's evidence. 3. Homicide 21 — second degree murder — sufficiency of evidence The State's evidence was sufficient for the jury in a prosecution for second degree murder where it would support a jury finding that defendant intentionally used a deadly weapon and thereby caused the victim's death. 4. Homicide 32 — conviction of manslaughter — submission of second degree murder — harmless error Defendant's conviction of voluntary manslaughter rendered harmless error, if any, in the submission of the question of defendant's guilt of second degree murder, at least absent any showing that the verdict of guilty of the lesser offense was affected thereby.<page_number>Page 76</page_number> 5. Criminal Law 132 — motion to set aside verdict — discretion of court A motion to set aside the verdict as being against the greater weight of the evidence is addressed to the discretion of the trial court, and the court's refusal to grant the motion is not reviewable on appeal.

1. Eminent Domain 2; Highways and Cartways 5 — abutting landowner — right of access — easement The owner of land which abuts a highway is recognized to have a special right of easement in the highway for access purposes, and<page_number>Page 88</page_number> this is a property right which cannot be taken from him without just compensation. 2. Highways and Cartways 6 — removal of road by Board of Transportation — no abuse of discretion Action of defendant Board of Transportation in attempting to excavate and remove the old roadway of N.C. Highway 133 after construction of a bridge and new section of the highway did not amount to an oppressive and manifest abuse of defendant's discretionary authority in violation of G.S. <cross_reference>136-54</cross_reference>, though the plaintiffs contended that the old roadway afforded them the only means of vehicular ingress and egress to and from their property. 3. Injunctions 2 — adequate remedy at law — no injunction Where there is a complete, full and adequate remedy at law, the equitable remedy of injunction will not lie.

Executors and Administrators 15 — sale of land to make assets — motion to set aside confirmation The trial court did not err in the denial of appellants' motions under Rule 60 to vacate and set aside orders of confirmation of a sale of realty to make assets to pay debts of an estate.

1. Food 1 — manufacturers, processors, packagers of food — negligence — burden of proof — res ipsa loquitur inapplicable Manufacturers, processors, and packagers of food, and bottlers of drink intended for human consumption are held to a high degree of responsibility to the ultimate consumer to see that the food and drink are not injurious to health, and may be held liable by the ultimate consumer on the ground of negligence for injuries proximately resulting from the failure to use such care; however, the doctrine of res ipsa loquitur does not apply, and the burden of proof rests on plaintiff to establish negligence. 2. Food 1 — roasted nuts — unshelled filbert — no negligence of manufacturer In an action to recover for injury to plaintiff's teeth sustained when he bit down on an unshelled nut which was packaged in one of defendant's products, Planters Dry Roasted Mixed Nuts, plaintiff made no showing of negligence and introduced no proof of similar occurrences. 3. Food 1; Uniform Commercial Code 15 — roasted nuts — unshelled filbert — no express warranty that nuts were shelled Evidence did not support plaintiff's contention that defendant breached an express warranty that mixed nuts sold by defendant in a clear glass jar were all shelled, since there was no language on the label of the container representing that the nuts were shelled and since the clear jar in which the nuts were packaged was a mere passive marketing tool and not a representation within the meaning of G.S. <cross_reference>25-2-313</cross_reference>(1) (a), (b). 4. Food 1; Uniform Commercial Code 15 — mixed nuts — unshelled filbert — merchantability of nuts The mixed nuts marketed by defendant were merchantable notwithstanding the presence of an unshelled filbert, since the presence of limited quantities of unshelled nuts does not render shelled nuts objectionable in the trade within the meaning of G.S. <cross_reference>25-2-314</cross_reference>(2) (a). 5. Food 1; Uniform Commercial Code 15 — mixed nuts — presence of unshelled nuts — product not adulterated — merchantability A certain limited number of naturally occurring unshelled filberts is permissible without rendering the product, dry roasted mixed nuts, adulterated, and as such the mixed nuts are fit for ordinary purposes and merchantable under G.S. <cross_reference>25-2-314</cross_reference>(2) (c). 6. Food 1; Uniform Commercial Code 15 — dry roasted mixed nuts — unshelled filbert — no foreign substance — no breach of implied warranty of merchantability Plaintiff who sued for injury to his teeth sustained when he bit down on an unshelled filbert which was in a package of dry roasted<page_number>Page 135</page_number> mixed nuts cannot claim that the filbert was a foreign substance, since the presence of natural impurities is no basis for liability; therefore, there was no breach of an implied warranty of merchantability. 7. Food 1 — strict liability — defective product unreasonably dangerous to health In order for strict liability to obtain, the product must be not only defective but present an unreasonable danger to health. 8. Food 1 — mixed nuts — unshelled filbert — strict liability inapplicable In an action by plaintiff to recover for injury to his teeth sustained when he bit down on an unshelled filbert which was contained in dry roasted mixed nuts packaged by defendant, strict liability did not apply, since the product in question was not defective, nor did it present an unreasonable danger to health and safety.

1. Appeal and Error 6; Contempt of Court 8 — indirect civil contempt — appellate review of order dismissing Appeal lies to review an order dismissing a charge of indirect civil contempt where the order affects a substantial right claimed by the appellant. G.S. <cross_reference>1-277</cross_reference>(a). 2. Contempt of Court 8 — consent judgment — compliance with terms — no contempt The trial court properly denied plaintiff's motion that defendants be found guilty of contempt for intentionally and wilfully disobeying a consent judgment requiring that defendants cease using plaintiff's product numbering system in their catalog or elsewhere and that defendants show none of plaintiff's work products in their catalog or elsewhere, since the judgment was intended to be prospective in its application, defendants were not prohibited by the<page_number>Page 192</page_number> judgment from filling orders received as a result of their then outstanding catalogs, and defendants printed within a reasonable time a new catalog in which none of the product identification numbers or work products of plaintiff appeared.

Vendor and Purchaser 11 — interstate land sale — absence of disclosure filing and property report — rights of assignees of purchasers Assignees of the purchasers of land subject to the Interstate Land Sales Full Disclosure Act are not entitled to rescind the sale to the purchasers on the ground that the sellers failed to file certain disclosure information with the Dept. of Housing and Urban Development and failed to give the purchasers a property report since protection of the Act applies only to those who have bought from the developers of the land. <cross_reference>15 U.S.C.A. 1701</cross_reference>, <cross_reference>1703</cross_reference> and <cross_reference>1709</cross_reference>.

1. Jury 2; Criminal Law 101 — remarks in prior case in jury's presence — no prejudice to defendant The trial court did not err in denying defendant's motion to dismiss all jurors and for a special venire to try him because of a colloquy between counsel for another defendant and the trial court concerning that defendant's failure to testify, all of which took place in the trial immediately preceding defendant's and which took place in the jurors' presence, since there was no showing that any juror was adversely affected by the remarks, if any juror in fact heard them, defendant did not request that the judge examine the jurors to determine whether they heard the remarks and, if so, what impression they made, and defendant did not request the trial judge to give a curative instruction to the jurors. 2. Criminal Law 35 — offense committed by another — competency of evidence In a prosecution for felonious larceny where the evidence tended to show that defendant took four suede coats from Sears, the trial court did not err in refusing to allow defendant's witness to testify that on the day of the alleged larceny two men other than defendant were near the Sears store in possession of three suede coats and tried to sell one to the witness, since, in order to be competent, evidence that the crime was committed by another must point unerringly to the latter's guilt. 3. Criminal Law 73 — third party's confession to crime — hearsay Ordinarily, testimony of a voluntary confession of a third party that he committed the crime of which defendant is accused is incompetent as hearsay.

Divorce and Alimony 18 — alimony pendente lite — half of joint savings account The trial court erred in ordering a lump sum payment of $17,600 as alimony pendente lite, which is one-half the amount in the parties' joint saving account, since a determination of the rights to the joint savings account was a matter for final hearing on the merits and not for hearing on alimony pendente lite.

1. Attorney and Client 7 — sales receipt — invoice — provision for attorney's fees — invalidity Neither a sales receipt nor an invoice containing a provision for attorney's fees is an "evidence of indebtedness" within the meaning of G.S. <cross_reference>6-21.2</cross_reference> and, absent a written agreement relating thereto, such provision is ineffectual as a matter of law. 2. Usury 1 — open account — applicability of usury statute A plumbing contractor's open account with a plumbing supply wholesaler constituted an "open-end credit or similar plan" governed by G.S. <cross_reference>24-11</cross_reference>, and a two percent service charge on the account violates the one and one-half percent ceiling prescribed by the statute. 3. Usury 1 — higher price for deferred payment — no usury The sale of merchandise is not usurious when the sale is made for one price if cash is paid and for a higher price if payment is deferred or made in future installments, so long as the transaction is not a subterfuge to conceal a usurious loan.<page_number>Page 273</page_number> 4. Interest 1; Usury 1 — service charge on open account — usurious interest A two percent per month service charge on the unpaid balance of an open account for plumbing supplies did not constitute a "time price" but was a charge for the seller's forbearance in the collection of the debt at the end of the payment period and, as such, constituted interest; such interest was usurious since it exceeded the one and one-half percent allowed by G.S. <cross_reference>24-11</cross_reference>, and forfeiture of the entire two percent service charge is appropriate under G.S. <cross_reference>24-2</cross_reference>.

1. Divorce and Alimony 4 — parties occupying same house — cruel treatment by husband — no condonation by wife In an action for alimony pendente lite, custody of the minor child, child support and attorney fees, plaintiff did not condone allegedly cruel acts of defendant by remaining in the parties' home, since plaintiff testified that she and defendant had not shared "the same marital bed" for over a year; moreover, the burden of proving the affirmative defense of condonation must be carried by the defendant, and defendant in this case failed to carry such burden. 2. Divorce and Alimony 18, 23, 24 — alimony pendente lite — child custody and support — sufficiency of findings The trial court's findings with respect to the parties' employment and income were sufficient to support an award of alimony pendente lite, but findings of fact with respect to custody and child support were insufficient to support its award.

Utilities Commission 6 — availability charge — power of Commission to disapprove By enacting G.S. <cross_reference>62-133.1</cross_reference>(b), the General Assembly proscribed the Utilities Commission's power to disapprove charges called for in uniform contracts between utilities and nonuser property owners if the charges do not exceed those expressly authorized by statute; therefore, the order of the Utilities Commission approving a rate<page_number>Page 337</page_number> schedule which included a monthly availability charge of $3.00 per month while the uniform contract between the utility and property owner called for a $5.00 monthly charge is reversed, since $5.00 was also the sum of the minimum rate to user customers of the utility.

1. Rules of Civil Procedure 60; Judgments 17 — divorce obtained by perjury — judgment not void A divorce obtained by perjury relating to the separation of the parties is not void within the purview of G.S. <cross_reference>1A-1</cross_reference>, Rule 60(b) (4), but is at most only voidable. 2. Rules of Civil Procedure 60; Judgments 27 — divorce obtained by perjury — no fraud upon the court — motion to set aside — statute limitations A divorce obtained by perjured testimony did not constitute a "fraud upon the court" within the meaning of G.S. <cross_reference>1A-1</cross_reference>, Rule 60(b) (6), where defendant was personally served with process and thus had the opportunity of fully participating in the case, and the one-year statute of limitations of G.S. <cross_reference>1A-1</cross_reference> Rule 60(b) (3), was applicable to a motion to set aside the divorce for fraud. 3. Judgments 27 — extrinsic and intrinsic fraud The judgment of a court having jurisdiction over persons and subject matter can be attacked in equity after the time of appeal or other direct attack has expired only if the alleged fraud is extrinsic rather than intrinsic; fraud is extrinsic when it deprives the unsuccessful party of an opportunity to present his case to the court.

1. Contracts 27 — summary judgment — principal amount — finance charge — counsel fees The trial court in a contract action properly entered summary judgment for the plaintiff in the principal amount of $2,215.00 where defendants admitted that they executed a contract containing a "Cash Price" of such amount, but the court erred in granting plaintiff summary judgment for a finance charge and counsel fees allegedly provided for in the contract where defendants denied that contract provisions for finance charges and counsel fees were filled in when they signed the contract and defendants attached to their answer a contract in which such provisions were left blank. 2. Pleadings 11 — action on debt — counterclaim under Truth in Lending Act A claim for penalties for failure of a creditor to disclose the finance charge as required by the Federal Truth in Lending Act, <cross_reference>15 U.S.C. § 1638</cross_reference> (a), may not be raised as a counterclaim in the creditor's action for the unpaid balance on the debt.

Contracts 27 — contract to procure survey — time for obtaining — no breach of contract In an action for breach of contract where plaintiffs alleged that they entered into a construction loan contract with defendant which included a provision by defendant to secure a survey of plaintiffs' property to insure that the residence to be built thereon would be located within the boundaries of said property, defendant's motion for directed verdict should have been allowed, since the contract on which plaintiffs based their claim was secondary to the principal contract for the construction loan, and, while the evidence tended to show that defendant agreed to order a survey after being notified that the footings of the house had been poured, there was no evidence tending to show that defendant agreed to procure a survey immediately after being so notified.

Process 1, 5; Rules of Civil Procedure 4 — action against corporation — summons directed to individual — jurisdiction — amendment of summons Where the summons in an action against Thorp Sales Corporation was directed to a named individual as agent for "Executive Square — Thorp Commercial Corporation," the court acquired no jurisdiction over defendant Thorp Sales Corporation, default judgment entered against<page_number>Page 527</page_number> such defendant is void, and the court was not authorized by G.S. <cross_reference>1A-1</cross_reference>, Rule 4(i) to permit plaintiff to amend the summons. G.S. <cross_reference>1A-1</cross_reference>, Rule 4(b).

Insurance 44 — group health and disability insurance — full-time employee — person working reduced hours An employee whose work schedule was reduced at his request from six days a week to two days a week so that his earnings would not exceed the maximum amount allowed for him to receive full Social Security benefits was not "employed on a full-time basis"<page_number>Page 559</page_number> within the meaning of a group hospital, medical and disability insurance policy issued to his employer.

1. Damages 12 — general and special damages — pleadings General damages, which are the natural and necessary result of a wrong, are implied by law and may be recovered under a general allegation of damages; special damages, those which do not necessarily result from the wrong, must be pleaded, and the facts giving rise to the special damages must be alleged so as fairly to inform the defendant of the scope of plaintiff's demand. G.S. <cross_reference>1A-1</cross_reference>, Rule 9(g). 2. Damages 12; Uniform Commercial Code 21 — operating losses — pleadings — breach of warranty of merchantability Operating losses are special damages which must be alleged under G.S. <cross_reference>1A-1</cross_reference>, Rule 9(g) and are consequential damages which are recoverable under G.S. <cross_reference>25-2-715</cross_reference>(2) if the seller knew or reasonably could<page_number>Page 565</page_number> have foreseen that the probable result of a malfunctioning product would be such operating losses; the pleadings and evidence in this case did not permit recovery of operating losses by plaintiff for breach of warranty of merchantability of a photographic color enlarger. 3. Damages 16; Uniform Commercial Code 21 — breach of warranty — damages — inadequate instructions The trial court's instructions did not adequately declare and apply the law as to damages recoverable for breach of warranty of merchantability of a photographic color enlarger.

1. Wills 22 — mental capacity before and after execution of will — opinion testimony Witnesses in a caveat proceeding were properly permitted to give their opinions regarding the mental condition of testator when they<page_number>Page 594</page_number> observed him within a reasonable time before and after the execution of his purported will. 2. Evidence 11; Wills 22 — dead man's statute — interested witness — statement by decedent In a caveat proceeding in which the issues being tried were undue influence and mental capacity, the trial court properly instructed the jury to disregard testimony by a beneficiary under the purported will that "He [testator] said it [the will] was just what he wanted," since the witness was interested within the meaning of G.S. <cross_reference>8-51</cross_reference> and the statement was not given as a basis for the witness's opinion on mental capacity but was only directed toward proving facts essential to propounder's case. 3. Trial 35 — failure to define "greater weight of evidence" Where the court correctly placed the burden of proof and stated the proper degree of proof, the court was not required to define the term "greater weight of the evidence" in the absence of a special request.

1. Courts 21 — validity of covenants not to compete — what law governs The validity of contracts containing covenants not to compete was governed by California law, the law of the place where the contracts were made, and under such law the covenants were invalid. 2. Courts 21 — duty in tort — what law governs The existence of a duty in tort is determined under the law of the state in which the relationship giving rise to the duty was created. 3. Unfair Competition — employee's disclosure of confidential information — California law Where an employer-employee relationship arose and was terminated in California, a duty by the employee not to disclose confidential information of the employer arose in tort as unfair competition under California law. 4. Injunctions 6; Unfair Competition — preventing disclosure of trade secrets An injunction will issue to prevent unauthorized disclosure and use of trade secrets and confidential information. 5. Injunctions 13 — requirements for preliminary injunction In order to gain a preliminary injunction, a plaintiff must show (1) probable cause of success on the merits at trial, and (2) a reasonable apprehension of irreparable injury unless interlocutory relief is granted. 6. Injunctions 13; Master and Servant 11; Unfair Competition — prohibiting disclosure of trade secrets — likelihood of disclosure To establish a reasonable apprehension of irreparable injury in an action for a preliminary injunction to prevent a former employee's disclosure of trade secrets and confidential information, the plaintiff must establish a high likelihood of disclosure of the information; in determining such likelihood, the courts will consider such factors as the circumstances surrounding termination of the employment, the importance of the employee's job, the type of work performed by the employee, the kind of information sought to be protected, and the need of the competitor for the information. 7. Master and Servant 11; Unfair Competition — prohibiting competitor's employment of former employee Plaintiff was not entitled to a preliminary injunction preventing a former employee from working for a competitor as a manager of plasma fractionation solely as a means of enforcing the former employee's duty not to disclose confidential information where: the employee had no specialized technical training and was employed<page_number>Page 687</page_number> at plaintiff's production facility, not at its research and development facility; the employee terminated his employment with plaintiff on his own accord and was not contacted by his new employer until after such termination; and plaintiff and the competitor have achieved comparable success in plasma fractionation. 8. Master and Servant 11; Unfair Competition — former employee — prohibiting disclosure of modification of centrifuge The trial court properly entered a preliminary injunction prohibiting plaintiff's former employee from disclosing to a competitor plaintiff's modification of a centrifuge used in plasma fractionation where plaintiff showed that the centrifuge is used in production, the former employee occupies a high level supervisory position in production of plasma fractions by the competitor, and some of plaintiff's competitors have tried without success to make a similar modification of the centrifuge; however, the court erred in prohibiting the disclosure of "all information regarded as confidential" where plaintiff failed to show the use of unique processing other than the modified centrifuge. 9. Master and Servant 11; Unfair Competition — former employee — prohibiting disclosure of written confidential information The court erred in granting a preliminary injunction prohibiting plaintiff's former employee from disclosing to a competitor any written documents obtained by the employee from plaintiff containing trade secrets or other confidential information where there was nothing in the record to show that the employee took or possessed such documents or that the employee had any motive to take or use such documents.