Volume 31 — North Carolina Court of Appeals Reports

1. Trusts 13 — express trust — essentials The essentials of a valid express trust are: (1) sufficient words to create it; (2) a definite subject matter; (3) an ascertained object; and (4) designated beneficiaries. 2. Trusts 13 — parol trust in personalty — enforceability It is well established in this jurisdiction that a trust in personalty may be created by parol, and that no particular form of words is required for the purpose, and that the same will be recognized and enforced whenever it is manifest that a trust is intended.<page_number>Page 42</page_number> 3. Trusts 19 — oral express trust alleged — insufficient intention shown In an action to recover certain bonds or proceeds therefrom allegedly due plaintiff under an oral express trust, the trial court erred in failing to grant defendants' motion for directed verdict, since the evidence did not show a sufficient intention to create a trust, but at most tended to show an ineffective gift of the bonds by intestate to plaintiff.

Automobiles 2 — habitual offender statute — failure of prosecutor to act "forthwith" The trial court had the inherent authority to dismiss a proceeding to have defendant declared an "habitual offender" of the traffic laws upon a determination that the district attorney failed to bring the proceeding "forthwith" as required by G.S. 20-223 and that respondent was prejudiced thereby, and the court's finding that the district attorney had not acted "forthwith" was supported by evidence that the district attorney did not institute the proceeding until some two years and three months after receiving an abstract of respondent's conviction record from the Commissioner of Motor Vehicles.

Parent and Child 1 — termination of parental rights — serious neglect — refusal to consent to adoption — refusal of counseling The refusal of the natural parents of a child who has been in a foster home for some four years to consent to the adoption of the child by others and the refusal of the father, who suffers from a mental illness, to submit to further counseling to determine his ability as a parent do not constitute "serious neglect" within the meaning of G.S. 7A-288(4) which would permit the court to terminate the parental rights of the natural parents.

Rules of Civil Procedure 5, 12, 55 — mailing of answer within time allowed — entry of default and default judgment improper Where defendants' answer was served on plaintiff by deposit in the mail on the last day of the thirty-day period for service of the answer but plaintiff and the clerk did not receive the answer until three days later, by which time an entry of default and a default judgment had been entered against defendants, the trial court properly set aside the default judgment, since (1) G.S. <cross_reference>1A-1</cross_reference>, Rule 5(d), does not state a time within which all pleadings subsequent to the complaint must be filed with the court; (2) defendants complied with the requirement of G.S. <cross_reference>1A-1</cross_reference>, Rule 12(a)(1), that answer be served within 30 days after service of summons and complaint; and (3) service of an answer is both a pleading and an appearance for the purpose of G.S. <cross_reference>1A-1</cross_reference>, Rule 55, which provides that a defendant's default can be entered only if he has failed to plead, and default judgment may be entered only if a defendant has failed to appear.

1. Negligence 5.1 — fall by store customer — no inference of negligence No inference of negligence on the part of a store owner arises from the mere fact that a customer falls on the floor of his store since the doctrine of res ipsa loquitur is inapplicable in such circumstances. 2. Negligence 5.1 — duties to store customers A store proprietor owes his customers the duty to exercise ordinary care to maintain in a reasonably safe condition those portions of his premises which he may expect they will use during business hours and to give warning of hidden perils or unsafe conditions insofar as these can be ascertained by reasonable inspection and supervision. 3. Negligence 5.1 — duties to store customers If an unsafe condition in a store is created by third parties or an independent agency, a showing must be made that it had existed for such length of time that the store proprietor knew or by the exercise of reasonable care should have known of its existence in time to have removed the danger or given warning of its presence. 4. Negligence 5.1, 57 — fall on wet floor by store customer — insufficient evidence of negligence In an action to recover for injuries sustained by plaintiff when she fell on an allegedly wet terrazzo floor in defendant's grocery store, plaintiff's evidence was insufficient to be submitted to the jury on the issue of negligence by defendant where it tended to show only that defendant knew that the terrazzo floor was slippery when wet and that on the day plaintiff fell defendant knew that water from customers' shoes and returning grocery carts had accumulated on the floor from time to time, and where plaintiff's evidence disclosed that defendant mopped, cleaned and dried the floor periodically throughout the day and that the area where plaintiff fell had been cleaned and dried just ten minutes prior to plaintiff's accident.<page_number>Page 214</page_number>

1. Ejectment 1 — order to convey part of property to defendant The trial court in a summary ejectment proceeding erred in directing plaintiff to convey to defendant two acres of the land in question where all the evidence and findings support the court's conclusion that plaintiff is the sole owner of the property and there is nothing in the record to support the court's order directing a conveyance to defendant. 2. Betterments 1 — improvements made while tenant Defendant was not entitled to betterments where all the evidence showed that any improvements defendant made on the property in question were not made under any color of title but were made while he was a tenant of either his father or mother or both. G.S. <cross_reference>1-340</cross_reference>.

1. Associations 2; Corporations 18 — cooperative association — board of directors — refusal to approve stock transfer The action of the board of directors of a cooperative apartment association in withholding consent to a transfer of stock in the cooperative should be based on reasons necessary to carry out the cooperative purposes, and consent arbitrarily withheld is invalid. 2. Associations 1; Corporations 1 — cooperative association — treatment as corporation A cooperative association organized in corporate form is basically a corporation and is generally treated as such.<page_number>Page 277</page_number> 3. Associations 2; Corporations 18 — restraints on transfer of stock — cooperative apartments Restraints on alienation of corporate stock in the form of consent requirements are generally disfavored but are viewed differently when the hybrid relationship in a cooperative apartment is involved. 4. Associations 2; Corporations 18; Landlord and Tenant 11 — cooperative apartment association — restraint on stock and lease transfer Since a proprietary lease as well as stock is involved in the relationship between a tenant-stockholder and an owner-cooperative, the restraint on the transfer of the stock and lease is governed by the general rule that reasonable restraints on the assignment of leases are valid. 5. Associations 2; Corporations 18 — cooperative associations — restrictions on stock transfer — effect of statute The statute requiring a cooperative association to reserve the right of purchasing the stock of any member whose stock is for sale and authorizing the restriction of a transfer of stock to persons made eligible to membership in the bylaws, G.S. <cross_reference>54-120</cross_reference>, does not authorize restraints only in the form of a right of first refusal. 6. Associations 2; Corporations 18 — cooperative associations — restraint on stock and lease transfer A restraint on the transfer of the stock and lease in a cooperative association is valid when provided for by statute and reasonably necessary for the cooperative purposes. 7. Associations 2; Corporations 1 — cooperative association — general corporation law The statute providing that a cooperative association organized in corporate form shall be "maintained in accordance with the general corporation law" does not convert a cooperative association into a general corporation, does not destroy the identity of the cooperative, and does not destroy the relationship between the tenant-shareholder and the owner-cooperative, which is based primarily on the long-term corporate stock. G.S. <cross_reference>54-117</cross_reference>. 8. Associations 2; Corporations 18 — cooperative associations — transfer restrictions — general corporation law There is no applicable general corporation law which supplants the authority of the board of directors of a cooperative association in the enforcement of transfer restrictions contained in the proprietary lease and authorized by G.S. <cross_reference>54-120</cross_reference>. 9. Associations 2; Corporations 18 — cooperative apartment association — refusal of directors to approve stock and lease transfer — action not arbitrary The board of directors of a cooperative apartment association did not act arbitrarily and capriciously in refusing to approve the sale of a stock subscription and lease to a purchaser who intended to sublet rather than occupy the purchased apartment, notwithstanding<page_number>Page 278</page_number> the board of directors had no written guidelines detailing when approval of a stock and lease transfer would be refused and the board had previously approved the subletting of two other apartments to non-owners.

1. Jury 1; Rules of Civil Procedure 39 — belated motion for jury trial — discretion of court The trial court did not abuse its discretion in granting defendants' motion for a jury trial made some two years and ten months after the time for requesting a jury trial under G.S. <cross_reference>1A-1</cross_reference>, Rule 38(b) had expired. G.S. <cross_reference>1A-1</cross_reference>, Rule 39(b). 2. Evidence 50; Physicians, Surgeons and Allied Professions 15 — practice in "similar communities" The trial court properly allowed defendants' medical experts to answer hypothetical questions as to whether treatment of a compound fracture administered by defendant doctors was in conformity with approved medical practices "in this community and similar communities." 3. Evidence 50; Physicians, Surgeons, and Allied Professions 15 — expert medical testimony — hypothetical questions — inclusion of opinion of another doctor The trial court did not err in allowing expert medical witnesses to answer hypothetical questions that included, as facts assumed to be found by the jury, the opinion of another physician since the<page_number>Page 313</page_number> opinion of the other physician was considered by defendant doctor in determining his course of treatment of plaintiff and was properly considered by the expert witnesses in stating their opinions as to whether the treatment rendered by defendant conformed to approved medical practices and procedures. 4. Evidence 50; Physicians, Surgeons and Allied Professions 15 — expert medical testimony — hypothetical questions — responses that treatment "appropriate" or "good medical care" The trial court did not err in allowing expert medical witnesses to use expressions such as "entirely appropriate" and "good medical care" in responding to hypothetical questions as to whether treatment rendered by defendant doctors conformed to approved medical practices and procedures since, when considered in context, the responses meant that defendants' treatment did conform to such practices and were so understood by the jury. 5. Appeal and Error 49 — exclusion of portions of depositions — harmless error The trial court did not commit prejudicial error in excluding portions of the depositions of defendant doctor and his medical witness where evidence of the same import was placed before the jury and part of the excluded evidence was the result of improper hypothetical questions. 6. Physicians, Surgeons and Allied Professions 16 — action against professional association — no negligence by doctors — respondeat superior A jury verdict of no liability on the part of defendant doctors rendered moot any question of error by the court in directing a verdict for a professional association of which the doctors were members where plaintiff alleged no independent wrongful acts on the part of the professional association and its liability could have been based only upon the doctrine of respondeat superior.

1. Criminal Law 70 — tape recordings — requirements for admissibility Before a tape recorded conversation may be admitted into evidence, the following requirements must be met: (1) a showing that the recording device was capable of taking testimony; (2) a showing that the operator of the device was competent; (3) establishment of the authenticity and correctness of the recording; (4) a showing that changes, additions or deletions have not been made; (5) a showing of the manner of the preservation of the recording; (6) identification of the speakers; and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement. 2. Criminal Law 70 — tape recordings — insufficient foundation laid for admission On a voir dire hearing to determine the admissibility of a statement made to police officers by defendant, the trial court did not err in excluding tape recordings of telephone conversations between defendant and the interrogating officers which were made by defendant and which he kept in his possession from the time they were made until trial, since defendant's testimony identifying the recorded telephone voices was totally inadequate, defendant's evidence was insufficient to establish the authenticity and correctness of the recordings, and defendant's testimony did not supply a sufficient explanation of the manner in which the recordings were preserved from the time they were made until trial. 3. Criminal Law 76 — confession — admissibility question for judge — credibility question for jury Admissibility of a confession is a matter for determination by the judge unassisted by the jury, while credibility and weight are for determination by the jury unassisted by the judge.

1. State 2; Waters and Watercourses 7 — title to submerged lands and tidelands — failure of defendants to carry burden In an action by the State for removal of a cloud on its title to submerged lands and tidelands lying within the description of a tract of land claimed by defendants, the trial court properly directed verdict in favor of the State where defendants stipulated at trial that they were unable to prove an unbroken chain of title connecting their deed to a deed or grant from the State and where defendants offered no evidence of adverse possession to support their pleadings. G.S. <cross_reference>146-79</cross_reference>. 2. State 2; Waters and Watercourses 7 — lands claimed by State — defendants' burden of proof to show title — constitutionality of statute Defendants' contention that the application of the statute creating a presumption of title in the State, G.S. <cross_reference>146-79</cross_reference>, results in a taking of their property without compensation and that the statute is therefore unconstitutional is without merit.

1. Trial 58 — non-jury trial — presumption court disregarded incompetent evidence In non-jury trials it is presumed that the trial judge disregarded any incompetent evidence that may have been admitted unless there is some indication in the judgment that the court relied upon the incompetent evidence. 2. Evidence 36 — statements by agent A principal is bound by statements made by an agent acting within the scope of his authority and in the course of his agency. 3. Evidence 32; Vendor and Purchaser 11 — parol evidence rule — statements and conduct of parties — meaning of "inability to get financing" Evidence of statements and conduct of the parties to a real estate purchase agreements both before and after execution of the agreement, was admissible to explain an ambiguous handwritten term added to the form agreement stating that "Inability to get financing on the basis of credit will void this contract," and the evidence supported the court's determination that the parties intended the handwritten term to encompass a failure to obtain an adequate amount of financing as well as a failure to obtain credit because of personal credit history. 4. Evidence 32 — parol evidence rule — conduct after execution of contract Evidence of conduct by the parties after executing a contract is not subject to the parol evidence rule and is admissible to show intent and meaning. 5. Principal and Agent 5 — apparent authority of real estate agent A real estate agent with whom property was listed for sale had apparent authority to contract on behalf of the sellers for a sale of the property.<page_number>Page 477</page_number>

1. Searches and Seizures 1 — warrantless search of automobile — probable cause Although a warrant to search defendants' automobile was defective, the officer had probable cause to conduct the search, and the search was therefore lawful, where the officer acted pursuant to information received by a second officer from a reliable informant giving a detailed description of defendants and their automobile, and advising the officer of the stolen nature of guns and other merchandise in the car, the direction defendants were traveling, and the time of their arrival in the town where the search occurred. 2. Search and Seizures 1 — probable cause to search automobile — search after removal to police station Where there was probable cause to search an automobile at the place where it was stopped, the search was not rendered invalid because it occurred after the automobile had been taken to the police station.<page_number>Page 504</page_number>

1. Pleadings 11; Rules of Civil Procedure 13 — claim arising after answer — no compulsory counterclaim Where a cause of action, arising out of the transaction or occurrence that is the subject matter of the opposing party's claim, matures or is acquired by a pleader after he has served his pleading, the pleader is not required thereafter to supplement his pleading with a counterclaim, although G.S. <cross_reference>1A-1</cross_reference>, Rule 13(e), permits the court to allow such supplemental pleading to assert a counterclaim. 2. Pleadings 11; Rules of Civil Procedure 13 — no knowledge of claim when answer filed — counterclaim not compulsory Plaintiff's claim for fraud based on differences in the original and a purported "duplicate" of a conditional sales contract was a permissive, not compulsory, counterclaim in defendant's prior action<page_number>Page 562</page_number> on the contract against plaintiff to recover a deficiency remaining after repossession and sale of the property purchased under the contract where plaintiff learned of the allegedly fraudulent acts by defendant during the prior trial and there was no showing that plaintiff knew or in the exercise of reasonable diligence should have known of his alleged claim for fraud at the time he served his answer in the prior action. G.S. <cross_reference>1A-1</cross_reference>, Rule 13(a).

1. Automobiles 117 — speeding — sufficiency of evidence Evidence was sufficient to be submitted to the jury in a prosecution for speeding in excess of 80 mph where such evidence<page_number>Page 618</page_number> tended to show that a patrolman observed a vehicle on an interstate highway traveling at a high rate of speed; the officer gave chase but lost sight of the vehicle's taillights when it went over a hill or around a curve; the officer did not recall seeing any other vehicles in the area at the time; the officer gave his opinion that the vehicle was traveling at 100 mph and higher; the officer apprehended the driver of the vehicle after its motor stalled and cut off; and the officer stated that the chase, which covered about eight miles, lasted for about 10 minutes. 2. Automobiles 126 — breathalyzer and blood tests — request from arresting officer proper G.S. <cross_reference>20-139.1</cross_reference> is not violated when a request for chemical analyses of breath and blood comes from the arresting officer, and such an officer is competent to testify as to defendant's refusal to submit to such tests. 3. Criminal Law 158 — conclusiveness of record — matters not in record — argument in brief not considered Generally speaking, when properly authenticated or certified, the record filed for the purpose of appeal imports absolute verity, and is the sole, conclusive, and unimpeachable evidence of the proceedings in the lower court; moreover, matters discussed in the brief outside the record will not be considered. 4. Automobiles 126; Constitutional Law 33 — driving under the influence — refusal to take breathalyzer, dexterity tests — no Miranda warnings In a prosecution for speeding and driving under the influence of intoxicating liquor, admission of evidence of defendant's refusal to submit to breathalyzer and physical dexterity tests did not violate defendant's right against self-incrimination, and admission of such evidence was not dependent upon whether Miranda warnings were given defendant. 5. Criminal Law 169 — objectionable testimony — similar testimony elicited by defendant The admission of testimony over objection is harmless where the defendant elicits similar testimony on cross-examination. 6. Automobiles 127 — driving under the influence — sufficiency of evidence Evidence was sufficient to be submitted to the jury in a prosecution for driving under the influence where it tended to show that an officer observed a vehicle traveling at a high rate of speed for approximately eight miles; after the car stopped, the officer approached it; defendant got out of the car, staggered slightly and had a moderate odor of alcoholic beverage about his person; after defendant was taken to the county jail, he continued to stagger, and the officer noticed that defendant's eyes were red; during this time defendant was unsteady on his feet and swayed; and the officer testified at trial that he was of the opinion that defendant was under the influence of some intoxicating beverage.<page_number>Page 619</page_number> 7. Criminal Law 163 — jury instructions — objection for first time on appeal Defendant's assignments of error to the trial court's summarization of the evidence are overruled where defendant made no objection at trial, though he was given an opportunity to do so by the trial court.

1. Rules of Civil Procedure 56 — summary judgment motion — no findings of fact by court In passing upon a motion for summary judgment pursuant to G.S. <cross_reference>1A-1</cross_reference>, Rule 56, the trial court does not decide facts but makes a determination whether an issue which is germane to the action exists, and if findings of fact are necessary to resolve an issue as to a material fact, summary judgment is improper. 2. Appeal and Error 57 — motion for summary judgment — failure to include on appeal all material before trial court When the appealing party fails to include in the record on appeal all of the materials that the trial court had before it in ruling on a motion for summary judgment, the Court of Appeals is unable to say that the trial court erred in determining that there was no genuine issue as to any material fact. 3. Landlord and Tenant 2 — agreement as lease — no conditional sales contract A document executed by the parties was a lease and not a conditional sales contract where the document contained all indicia of a lease, including a provision that the property would be returned to plaintiff at the expiration of the lease period, and plaintiff was not engaged in manufacturing or selling the property in question but, pursuant to a list furnished by defendants, went into the market place and purchased the property for defendants. 4. Guaranty — lease agreement — liability of individual defendants In an action to recover on a lease agreement, the trial court did not err in holding the individual defendants personally responsible for the obligations of defendant corporation, since the individual defendants had executed a personal guaranty agreement committing themselves personally to pay all obligations of defendant corporation. 5. Courts 21 — construction of contract — law of place where made governs The validity and construction of a contract are to be determined by the law of the place where the contract was made, and the place at which the last act was done by either of the parties essential to a meeting of the minds determines the place where the contract was made. 6. Courts 21 — making of contract — place of last act — action remanded for finding This action to recover on a lease agreement is remanded for the trial court to make a finding as to whether the agreement was<page_number>Page 635</page_number> made in California or N.C., such finding being required in order to determine whether the law of California or N.C. should be followed in awarding plaintiff attorney fees.

Uniform Commercial Code 28 — loan to partnership — no signature of partnership on note — liability of guarantors of partnership Where plaintiff alleged that defendants unconditionally guaranteed and assumed primary liability for any debts of a named partnership, plaintiff loaned the partnership a named sum, and defendants executed a promissory note on behalf of the partnership, but the name of the partnership did not appear on the note, the trial court erred in concluding that, since the signature of the partnership did not appear on the note, the partnership was not liable, and, consequently,<page_number>Page 722</page_number> defendants were not liable on their guaranty of the debt of the partnership, and the court also erred in dismissing plaintiff's action, since plaintiff was entitled to recover, even without the signature of the partnership, if it proved that the signing partner was acting on behalf of the partnership in procuring the loan and was authorized to so act, or that the partners, with knowledge of the transaction, thereafter ratified the acts of their partner. G.S. <cross_reference>25-3-401</cross_reference>.

Criminal Law 99 — filing false insurance claim — court's comment in disposing of another case In this prosecution for filing a false insurance claim and conspiracy to file a false insurance claim, the trial judge expressed an<page_number>Page 730</page_number> opinion in violation of G.S. <cross_reference>1-180</cross_reference> when, in disposing of an unrelated case by guilty plea during a pause in defendant's case, he stated in the presence of the jury, "What is this, another case of somebody ripping off an insurance company?", and such error was not cured by the court's instruction to the jury that the case disposed of by guilty plea was unrelated to defendant's case or by the court's questioning of jurors as to whether any of them would consider anything regarding the other case as against defendant and whether they understood that the State had the burden of proving guilt.