Volume 32 — North Carolina Court of Appeals Reports

1. Divorce and Alimony 24; Infants 9 — modification of child custody decree The modification of a child custody decree must be supported by findings of fact based on competent evidence that there has been a substantial change in circumstances which has affected the welfare of the child. 2. Witnesses 8; Rules of Civil Procedure 43; Appeal and Error 42 — hostile witness — leading questions — placing excluded testimony in record In a hearing in which plaintiff father sought to gain custody of his child from the mother based in part on allegations of physical abuse of the child by the mother's present husband, the court erred in ruling that the mother's present husband was not a hostile witness and in denying plaintiff his right under G.S. <cross_reference>1A-1</cross_reference>, Rule 43(b), to ask a hostile witness leading questions, and in refusing to permit counsel to insert in the record the answers to the questions to which objections were sustained; however, such errors were not prejudicial to plaintiff where the trial judge investigated the allegation of physical abuse by questioning the child in chambers and found that there had been no substantial change in circumstances to warrant a change in custody. 3. Divorce and Alimony 24 — failure to return child to legal custodian — contempt — insufficiency of evidence The evidence was insufficient to support the court's finding that plaintiff had refused to return the child to its mother, who had been given legal custody, and the court erred in holding defendant in contempt for refusing to return the child to its mother. 4. Divorce and Alimony 23 — failure to pay child support — wilfulness The evidence was sufficient to support a finding that plaintiff's failure to pay child support in accordance with a court decree was wilful where there was evidence that plaintiff was regularly employed during the entire period of delinquency and was presently able to comply with the order of the court. 5. Divorce and Alimony 23; Parent and Child 7 — child support decree — credit for voluntary expenditures A parent is entitled to credit toward the amount of child support ordered by a court decree for expenditures incurred in behalf of the child only when equitable considerations exist which would create an injustice if such credit were not allowed.<page_number>Page 77</page_number> 6. Divorce and Alimony 23; Parent and Child 7 — child support decree — credit for voluntary expenditures A parent delinquent in child support payments is not entitled to credit for obligations incurred prior to the entry of the support order and is not entitled as a matter of law to a deduction proportionate to the amount of time spent with the child or to a credit for frivolous expenses or for expenses incurred in entertaining or feeding the child during visitation periods; however, credit is more likely to be appropriate for expenses incurred with the consent or at the request of the parent with custody and for payments made under compulsion of circumstances. 7. Attorney and Client 7; Divorce and Alimony 22 — child custody and support — attorney's fees — findings of fact Findings of fact were not required to support an award of attorney's fees in an action for child custody and support. G.S. <cross_reference>50-13.6</cross_reference>. 8. Appeal and Error 7 — mother held in contempt — appeal by son Plaintiff was not aggrieved by an order holding his mother in contempt for failing to return his child to defendant and had no standing to appeal in her behalf. G.S. <cross_reference>1-271</cross_reference>.

1. Divorce and Alimony 22 — child custody and support order — findings and conclusions In a child custody and support proceeding, the trial court is required to find specific ultimate facts to support the judgment and to state separately its conclusions of law thereon. 2. Trial 58 — conclusion of law defined A conclusion of law is the court's statement of the law which is determinative of the matter at issue between the parties and must be based on the facts found by the court. 3. Divorce and Alimony 24 — child custody — findings required A child custody order should contain findings of fact which sustain the conclusion of law that custody of the child is<page_number>Page 155</page_number> awarded to the person who will best promote the interest and welfare of the child. G.S. <cross_reference>50-13.2</cross_reference>. 4. Divorce and Alimony 23 — child support — findings required A child support order should contain findings of fact which sustain the conclusion of law that the support order meets the needs of the child for health, education and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, and other facts of the particular case. G.S. <cross_reference>50-13.4</cross_reference>(c). 5. Divorce and Alimony 24 — child visitation rights — findings required An order awarding child visitation rights should contain findings of fact which sustain the conclusion of law that the party is a fit person to visit the child and that such visitation rights are in the best interest of the child. 6. Divorce and Alimony 23, 24 — child custody, support, visitation — insufficiency of findings and conclusions Trial court's order contained insufficient findings of fact and conclusions of law to support its award of child custody, support and visitation rights.

1. Malicious Prosecution 1 — elements of offense To make out a case of malicious prosecution it is necessary that the plaintiff show (1) malice, (2) want of probable cause, and (3) a favorable termination of the proceedings upon which his action is based. 2. Malicious Prosecution 13 — criminal proceedings instituted by defendant — sufficiency of evidence of malicious prosecution In an action to recover for malicious prosecution of plaintiff by defendant based on three criminal actions, the trial court erred in directing verdict for defendant where plaintiff's evidence tended to show that of the three proceedings instituted against him by defendant, two were dismissed and the third resulted in acquittal; evidence of the dismissal of two of the charges against plaintiff was a sufficient<page_number>Page 159</page_number> showing of want of probable cause; and the inference arising from want of probable cause was sufficient to take to the jury the question of whether malice was present. 3. Trover and Conversion 1 — conversion of mobile home — sufficiency of evidence In an action to recover for the wrongful conversion of a mobile home, the trial court erred in directing verdict for defendant where plaintiff's evidence tended to show ownership in himself and an unauthorized exercise of dominion and control over the mobile home by defendant; moreover, the fact that plaintiff had obtained a judgment against a third person to whom defendant had sold the mobile home would not bar plaintiff's claim against defendant, since each party participating in a wrongful conversion may be sued by the owner without the joinder of the other because each is jointly and severally liable.

Laborers' and Materialmen's Liens 3 — breach of contract by prime contractor — damages exceeding amount owed to contractor — subcontractor's claim against owner Where the architect for a home under construction withheld a $15,284.66 progress payment to the prime contractor for reasons specified in the contract, the contractor breached the contract by discontinuing construction of the home, the lowest bid reasonably obtainable to complete the home according to the original plans and specifications was $2,141.77 in excess of the original contract price with the contractor, and the owner was required to expend all of the funds that might otherwise have become due to the contractor under the original contract as well as an additional $2,141.77, the damages to the owner from the contractor's breach were in excess of all amounts otherwise due to the contractor under the original contract, and there were therefore no funds owed by the owner to the contractor to which a first tier subcontractor's lien under G.S. <cross_reference>44A-18</cross_reference>(1) could attach.

Schools 11 — collision with school bus — one other than bus driver operating bus — Industrial Commission without jurisdiction In an action to recover for damages to plaintiff's truck resulting from a collision with a school bus belonging to defendant, the Industrial Commission properly determined that G.S. <cross_reference>143-300.1</cross_reference>, the statute giving the Commission jurisdiction over tort claims arising from the negligence of a school bus driver while operating his bus in the course of his employment, was inapplicable in this action and the Commission was without jurisdiction, since the evidence tended to show that the driver of the bus in question had given her keys to a 15-year-old boy so that he could warm up the bus; the boy was driving the bus at the time it collided with plaintiff's truck; and the driver was not even in the bus at the time of the collision.

1. Automobiles 2 — limited driving privilege — first conviction — driving under influence — driving with alcohol content of .10 or more In the provision of G.S. <cross_reference>20-138</cross_reference>(b) making a person eligible for consideration for limited driving privileges upon a "first conviction under this section," the word "section" refers to G.S. <cross_reference>20-138</cross_reference> in its entirety; thus, a "first conviction under this section" is a conviction either of driving while under the influence of intoxicating liquor in violation of G.S. <cross_reference>20-138</cross_reference>(a) or driving with a blood alcohol content of .10 percent or more by weight in violation of G.S. <cross_reference>20-138</cross_reference>(b), and a person previously convicted of driving while under the influence was not eligible for limited driving privileges upon his conviction of driving with a blood alcohol content of .10 percent or more by weight. 2. Automobiles 2 — revocation of limited driving privilege — guilty plea in reliance on erroneous advice by hearing officer — estoppel The Commissioner of Motor Vehicles was not estopped to revoke a limited driving privilege granted to petitioner when he pled guilty to driving with a blood alcohol content of .10 percent or more by weight by the fact that defendant's guilty plea was entered after he was erroneously advised by a hearing officer of the Division of Motor Vehicles that he would be eligible for a limited driving privilege upon a first conviction of such offense notwithstanding his prior conviction for driving under the influence.

1. Equity 2 — ejectment action — plea of laches proper Plaintiffs' contention that the defense of laches was inapplicable in an ejectment action is without merit. 2. Equity 2 — action brought within statutory period of limitations — laches nevertheless existent Plaintiffs could be guilty of laches, even though their action for ejectment was brought within any applicable period of limitation, if their delay in bringing the action was mere neglect to seek a known remedy, the delay was without reasonable excuse, and injury would otherwise be done to defendant by reason of the delay. 3. Equity 2 — laches — lapse of time — inequity resulting from delay — notice of claims Lapse of time is not the controlling or most important element to be considered in determining whether laches is available as a defense; rather, the question is primarily whether the delay in acting results in an inequity to the one against whom the claim is asserted based upon some change in the condition or relations of the property or the parties. Also to be considered is whether the one against whom the claim is made had knowledge of the claimant's claim and whether the one asserting the claim had knowledge or notice of the defendant's claim and had been afforded the opportunity of instituting an action. 4. Equity 2 — ejectment action — sufficiency of evidence of laches In an action for ejectment evidence was sufficient for submission to the jury on the question of laches where such evidence tended to show that defendant occupied property claimed by plaintiffs; plaintiffs did not make their claim known to defendant until institution of this action; plaintiffs knew that a house was located on the property and that defendant lived in it; defendant made considerable improvements to the house; and plaintiffs delayed bringing this action for three years, the only reason given by them being that they wanted to try another action against another person first.

1. Criminal Law 159 — record on appeal — voir dire from another trial The trial court did not err in ordering that a voir dire held in the trial of defendant for another crime be included in the record of the present case where that voir dire was the basis for the court's ruling that no voir dire was necessary in the present case to determine the legality of a search of defendant's premises because the search had been found valid in the prior trial. 2. Searches and Seizures 3 — search warrant — affidavit based on informant's tip In order for an affidavit based on an informant's tip to be sufficient to show probable cause for the issuance of a search warrant, the affidavit must contain facts which show that there is illegal activity or contraband in the place to be searched, and it must contain some of the underlying facts and circumstances which show that the informant is credible or that the information is reliable. 3. Searches and Seizures 3 — information from confidential informant — sufficiency of affidavit An affidavit based on information received from a confidential informant contained sufficient underlying circumstances showing the credibility of the informant or the reliability of his information where it stated that the informant had previously provided information which led to arrests and convictions of two named persons and that the informant had recently seen stolen liquor at the premises to be searched. 4. Criminal Law 84; Searches and Seizures 4 — seizure of items not listed in warrant — plain view doctrine — inadvertent discovery The trial court did not err in determining that an officer's discovery of stolen lawn furniture in plain view on defendant's premises while executing a warrant to search for stolen liquor was `inadvertent," and that the furniture was admissible in evidence, where the officer had previously been informed that the furniture was on defendant's premises by an informant who had not been proven reliable, and the officer lacked legal probable cause to believe the furniture would be on the premises until he actually went to the premises to assist in the execution of the warrant to search for liquor. 5. Criminal Law 84; Searches and Seizures 4 — legality of search — determination in trial for another crime — no right to another voir dire Defendant was not entitled as a matter of right to another voir dire on the legality of a search of her premises where the legality of the search had been determined after a voir dire conducted in a prior trial of defendant for another crime and defendant had been fully<page_number>Page 330</page_number> heard in the prior trial on the issue of the admissibility of evidence seized from her premises. 6. Criminal Law 34 — evidence of another crime — acquittal of larceny — competency to show common scheme of receiving In this prosecution for larceny and receiving of lawn furniture, a witness's testimony concerning lawn furniture which had been stolen from him and found on defendant's premises along with the lawn furniture in question was admissible to show a common scheme of receiving stolen property, although defendant had previously been acquitted of larceny of the witness's furniture. 7. Criminal Law 126 — unanimity of verdict — erroneous instruction Defendant is entitled to a new trial where the court's instruction on unanimity of the verdict was susceptible to the interpretation that when a vote is taken and there is a majority, either for conviction or acquittal, the minority should then cast their votes with the majority and make the verdict unanimous before returning the verdict in open court.

1. Arrest and Bail 3 — right to arrest for felony without warrant An officer had probable cause to arrest defendant without a warrant for the felony of manslaughter where the officer had reasonable cause to believe that defendant, while under the influence of intoxicating liquor, had driven his car across the median of a highway, struck two vehicles, and killed the two occupants of one of the vehicles. 2. Automobiles 126 — breathalyzer test — effect of illegal arrest Even if defendant's arrest was illegal, such illegality would not render inadmissible the results of a breathalyzer test administered to<page_number>Page 345</page_number> defendant after his arrest since the right to administer a breathalyzer test depends solely upon the law enforcement officer having reasonable grounds to believe the person to have been driving or operating a motor vehicle on a highway or public vehicular area while under the influence of intoxicating liquor. G.S. <cross_reference>20-16.2</cross_reference>(a). 3. Automobiles 126 — breathalyzer test — request in presence of breathalyzer operator Breathalyzer test results were not inadmissible on the ground that the request of the arresting officer to take the test was not made in the presence of the breathalyzer operator where the arresting officer testified that he made such request in the presence of the breathalyzer operator. 4. Automobiles 126 — breathalyzer test results — failure to hold voir dire Breathalyzer test results were not inadmissible because the trial judge failed to conduct a voir dire to determine if defendant had been advised of his rights as required by G.S. <cross_reference>20-16.2</cross_reference>(c) where there was evidence before the court that defendant had been fully advised of his rights. 5. Automobiles 127 — breathalyzer test — inability to consent — implied consent A breathalyzer test was validly administered to defendant even if the evidence supported his contention that he could not understandingly consent to the test because of injuries received in an automobile accident since defendant's implied consent to the test by driving on a highway was not withdrawn by the fact that he was unconscious or otherwise in a condition rendering him incapable of refusal. G.S. <cross_reference>20-16.2</cross_reference>(b). 6. Automobiles 113 — drunken driving — involuntary manslaughter — sufficiency of evidence The evidence was sufficient for the jury in a prosecution for involuntary manslaughter where the State's evidence tended to show that defendant drove his automobile on a public highway while under the influence of intoxicating liquor, crossed the median of a four-lane highway and struck two vehicles traveling in the opposite direction, and where it was stipulated that two persons died as a result of injuries received in the collision with defendant's automobile.

1. Criminal Law 92 — joint trial of three defendants — no deprivation of alibi evidence The three defendants were not deprived of evidence corroborating their alibis by the consolidation of their trials for breaking and entering and larceny where the first defendant took the stand and gave testimony which tended to establish an alibi for the other two defendants, there was nothing to indicate that testimony by the second and third defendants would have corroborated an alibi for each other or otherwise aided in securing a fair trial, and evidence of the first defendant showed that the other two defendants were in no position to corroborate the alibi testimony of his other witnesses. 2. Criminal Law 145.1 — consent to searches — condition of probation Defendant's waiver of his right to be free from warrantless searches of his person, residence or automobile conducted in the presence of his probation officer was a valid condition of his probation. 3. Criminal Law 84; Searches and Seizures 2 — consent to search as condition of probation Items were lawfully seized without a warrant from defendant's house trailer and automobile where defendant, as a condition of his probation, waived his right to be free from warrantless searches of his person, residence and automobile conducted in the presence of his probation officer, and his probation officer was present during the search and seizure. 4. Burglary and Unlawful Breakings 5; Larceny 7 — possession of recently stolen property — sufficiency of evidence for jury The State's evidence was sufficient for submission to the jury of issues as to the guilt of three defendants of breaking and entering and larceny under the theory of possession of recently stolen property where it tended to show that a store was broken and entered and quantities of widely distributed brand name products were stolen therefrom; identification numbers on cartons of cigarettes stolen from the store matched numbers on cartons found in the trunk of the first defendant's car some hours after the crimes; a jar of instant coffee found in the first defendant's house trailer and jars of coffee taken from the store had the same kind of price markings; the second defendant's fingerprints were found on some of the cigarette cartons seized from defendant's car; and the third defendant told the arresting officer that he had brought the coffee into the trailer.

1. Rules of Civil Procedure 4 — out-of-state defendant — return receipt — signature by one other than defendant The provision of G.S. <cross_reference>1A-1</cross_reference>, Rule 4(j)(9)(b), providing that service of process upon an out-of-state defendant will be complete when copies of the summons and complaint are "delivered to the addressee" contemplates merely that the registered or certified mail be delivered to the address of the party to be served and that a person of reasonable age and discretion receive the mail and sign the return receipt on behalf of the addressee. 2. Rules of Civil Procedure 4; Procedure 9 — out-of-state defendant — service of process properly effected The trial court was correct in concluding that service of process was properly effected on the out-of-state defendant pursuant to G.S. <cross_reference>1A-1</cross_reference>, Rule 4(j)(9)(b) since the return receipt, signed by a person at defendant's address on behalf of defendant, together with the affidavit of plaintiff's attorney averring that he sent a copy of the summons and complaint to the defendant, return receipt requested, showed sufficient compliance with Rule 4(j)(9)(b) to raise a rebuttable presumption of valid service, and defendant made no attempt to rebut this presumption by showing he did not receive copies of the summons and complaint. 3. Rules of Civil Procedure 55 — sum certain sought — failure of defendant to appear — authority of clerk to enter judgment In plaintiff's action to recover $66,680.53 allegedly due on three promissory notes, plaintiff's claim for relief, which was for less than the face amount of the promissory notes, established a "sum certain" within the meaning of G.S. <cross_reference>1A-1</cross_reference>, Rule 55(b)(1), and the clerk had authority in this case to enter a final judgment.

1. Master and Servant 49 — workmen's compensation While the evidence in this workmen's compensation proceeding would have supported the Industrial Commission's conclusion that defendant insurer was estopped to deny that a pulpwood cutter was acting as an employee of the two defendant woodyards at the time of his death by accident while cutting pulpwood, the Commission's findings of fact were insufficient to support such conclusion, and the proceeding must be remanded for further findings of fact and conclusions of law based on the present record. 2. Master and Servant 71 — workmen's compensation — average weekly wage The Industrial Commission erred in determining a pulpwood cutter's average weekly wage based on all of the proceeds of sales of pulpwood to two woodyards where the evidence showed that the cutter was assisted in his work part of the time by his two sons and that they received part of the proceeds from the sales of pulpwood for their labor.

Insurance 1; Injunctions 11 — insurance regulations — injunction pending trial — new regulations containing those enjoined — injunction without new hearing Where the superior court in May 1974 restrained the enforcement of regulations issued by the Commissioner of Insurance relating to the handling of claims arising out of motor vehicle accidents pending final judicial review of the regulations, no trial on the merits has been held, and the Commissioner of Insurance on 30 January 1976 filed with the Attorney General as part of the North Carolina Administrative Code a "new" set of rules which included substantially the same provisions as the previously enjoined regulations, the superior court properly enjoined enforcement of portions of the "new" regulations which were the same as the old regulations pending judicial review without the "new" regulations having first been attacked in a "new" hearing before the Commissioner of Insurance.

Divorce and Alimony 19 — consent judgment — alimony and property settlement — motion for increase in alimony The support and property settlement provisions of a consent judgment entered in an absolute divorce action were separable, and the wife could obtain a modification of the amount of permanent alimony ordered by the judgment upon a showing of changed circumstances; therefore, the trial court erred in denying the wife's motion for an increase in alimony on the ground that the consent judgment constituted a final settlement of the amount of alimony.

1. Contracts 27 — earning commissions — purchase of stock — oral contract — sufficiency of evidence Evidence was sufficient to support the jury's finding that, pursuant to an oral agreement between plaintiff and the shareholders of defendant company, plaintiff was entitled to earn commissions which could then, in turn, be used to buy shares in defendant company, and<page_number>Page 566</page_number> that plaintiff was entitled to sue for the commissions earned and forego the stock. 2. Contracts 13; Uniform Commercial Code 64 — payment of commissions — purchase of stock — divisible contract Where the contract between the parties entitled plaintiff to earn commissions which could then be used to buy shares in defendant company, the contract was divisible into two related, but not interdependent, promises: (1) to pay plaintiff commissions in consideration of fees generated, and (2) to sell plaintiff shares in consideration for, and in proportion to, the commissions already earned and the number of years spent working for defendant. Since the contract was divisible and the promise to pay commissions could be enforced separately from the promise to sell stock in exchange for the commissions, the statute of frauds, G.S. 25-8-319(a), did not apply. 3. Contracts 4 — fees previously generated — commissions subsequently paid — consideration In an action by plaintiff to recover the amount of commissions he allegedly earned as a mortgage banker for defendant, or, in the alternative, stock in defendant company to which he was allegedly entitled pursuant to an oral contract, defendant's contention that plaintiff gave no consideration for so much of his commissions as were based on fees generated during the fiscal year preceding the negotiation of plaintiff's commission and stock agreement is without merit, since plaintiff was not promised commissions in consideration of past services, but instead, in consideration of his promise to continue working and to perform future services, he was promised additional compensation calculated as commissions on fees previously generated by plaintiff.

Insurance 43.1; Limitation of Actions 4 — claim for hospital expenses — calculation of period of limitation In an action to recover hospital room expenses from defendant under two insurance policies, the period of limitation ran from the time written proof of loss was furnished in accordance with the requirements of the policies plus the sixty days during which the policies prohibited a claimant from filing suit; however, plaintiff in<page_number>Page 581</page_number> this action was not entitled to the benefit of the sixty-day period in calculating the period of limitations since he failed to show that his proof of loss filed more than 90 days after termination of the period for which defendant was liable was furnished in accordance with the requirements of the policies.

1. Divorce and Alimony 24 — child custody proceeding — opinion of child psychologist — admissibility The trial court in a child custody proceeding did not err in allowing a witness to testify concerning the opinion of a clinical child psychologist who had examined the children, since the opinion related by the witness was substantially the same as that given by the psychologist herself at an earlier hearing. 2. Divorce and Alimony 24 — child custody proceeding — investigation report — admissibility The trial court in a child custody proceeding did not err in allowing into evidence portions of a report of an investigation ordered by the court to be performed by the Orange County Department of Social Services where the portions objected to contained questions raised by a clinical child psychologist concerning the possible reactions of petitioner's present wife, of her child by her own former marriage, and of the petitioner himself, if custody of the three children of petitioner and respondent should be granted the petitioner. 3. Divorce and Alimony 24 — child custody — sufficiency of evidence to support findings Evidence in a child custody proceeding was sufficient to support the trial court's finding that there was no bond between the youngest child and petitioner-father, and the court did not err in concluding that it was to the best interests of the daughters to remain in the custody of their mother. 4. Divorce and Alimony 24 — child custody order — fit and proper person — no specific finding — absence not fatal Although it would be the better practice for an order awarding child custody to contain an express finding of fitness, the absence of such an express finding will not be fatal where such a finding is implicit in the findings which the court does make. 5. Divorce and Alimony 24 — child custody — mother as fit and proper person — sufficiency of evidence Though the evidence in a child custody proceeding revealed that respondent-mother had not always conducted herself in a responsible and exemplary manner, such evidence did not compel a finding by the court that respondent was not a fit and proper person to have custody of the daughters of petitioner and respondent.

1. Rules of Civil Procedure 56 — summary judgment — findings of fact Summary judgment is improper if findings of fact are necessary to resolve an issue as to a material fact; however, action by the trial judge in making findings of fact was not error where his findings were merely a summary of the material facts not in issue which he thought justified the entry of summary judgment.<page_number>Page 656</page_number> 2. Bills and Notes 20 — action on note — default in payment — summary judgment In an action to recover on a promissory note endorsed by individual defendants, there was no genuine issue of fact as to whether the note was in default on 23 July 1975 when the suit was commenced, and summary judgment was properly entered for plaintiff, where an examination of the terms of the note and the uncontradicted affidavits offered by plaintiff as to payments show that the note was in default on that date, and where defendants offered no material in support of their allegation that the note was paid through October 1975 and failed to utilize G.S. <cross_reference>1A-1</cross_reference>, Rule 56(f) or to point out specific areas of impeachment and contradiction in plaintiff's affidavits. 3. Attorney and Client 9; Bills and Notes 20 — action on note — taxing attorney's fees against endorsers The trial court properly taxed attorney's fees for collection of a note against endorsers of the note since (1) the note itself clearly extended the duty to pay attorney's fees to "all parties" and to "the undersigned," which include endorsers, and (2) G.S. <cross_reference>6-21.2</cross_reference> contemplates such liability on the part of endorsers since it provides for the giving of notice to endorsers by the holder or his attorney that the provision for attorney's fees, in addition to the outstanding balance, shall be enforced.

1. Master and Servant 77 — workmen's compensation — change of condition A change of condition refers to a substantial change, after a final award of compensation, of the injured employee's physical capacity to earn and in some cases of his earnings. 2. Master and Servant 56, 77 — workmen's compensation — change of condition — symptoms unrelated to injury In a hearing before the Industrial Commission on plaintiff's claim of a change in his condition, medical testimony revealed that plaintiff was suffering at that time from the same headaches and other symptoms which he exhibited soon after his injury and which, according to testimony in an earlier hearing, were unrelated to his injury.