Volume 33 — North Carolina Court of Appeals Reports

Highways and Cartways 9.3 — construction contract — extra work — no change order executed — no extra compensation In an action to recover for work performed in excess of that specified under the terms of a written contract between the parties for the building of a road, which work plaintiff alleged was necessary in order to complete performance of the work called for in the contract, the trial court properly granted defendant's motion for judgment n.o.v. where the parties' contract specifically provided that all changes in the work must be authorized by a written change order, and authorization to perform the extra work for which plaintiff sought compensation was expressly denied by defendant's rejection of plaintiff's requests for change orders on two separate occasions; moreover, plaintiff was not entitled to recover on the basis of quantum meruit or an implied contract, since an express contract precludes an implied contract with reference to the same matter.

1. Assault and Battery 15.3 — serious injury as a matter of law — when instruction is proper In a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury where the evidence with respect to the injuries is not contradicted and the injuries could not conceivably be considered less than serious, the court may instruct the jury that, if they believe the evidence as to injuries, they will find that there was serious injury; therefore, where the uncontradicted evidence in this assault case tended to show that the victim remained unconscious for three days, was hospitalized for eight days, and lost two ribs and a lung as a result of defendant's shotgun blast, the trial court properly instructed the jury that the injuries were serious injuries as a matter of law. 2. Assault and Battery 15.2 — failure to define assault — explanation sufficient Though the trial court's charge in a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury did not include a definition of assault, the judge did instruct that the State was required to prove ". . . that the defendant assaulted [the victim] by intentionally and without justification or excuse shooting [the victim] in the upper left chest with a shotgun . . .," and this language was sufficient to explain an assault to the jury so that they had no question as to the meaning of the term. 3. Assault and Battery 16.1 — assault with deadly weapon with intent to kill inflicting serious injury — lesser offenses — submission unnecessary In a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury where the evidence showed that the prosecuting witness had been shot in the chest by a shotgun at close range, that he was unconscious for three days and hospitalized for eight, and that he lost two ribs and a lung as a result of the shooting, defendant was not entitled to have submitted to the jury the lesser offenses of assault with a deadly weapon with intent to kill, assault with a deadly weapon, or assault inflicting serious injury. 4. Criminal Law 73.2 — officer's testimony — no hearsay Testimony by a police officer that during the course of his investigation of the assault charged he asked bystanders what had occurred and that after hearing their responses, he placed defendant under arrest was not inadmissible as hearsay, since it consisted only of what the officer did, and not of statements made to him by third persons.<page_number>Page 62</page_number> 5. Criminal Law 119 — jury instruction not requested — failure to give not error The trial court did not err in failing to instruct the jury that the indictment did not constitute evidence against defendant, absent a request by defendant for such an instruction.

1. Criminal Law 66.10, 66.17 — confrontation between victim and defendant at sheriff's office — in-court identification not tainted The trial court properly allowed into evidence an armed robbery victim's in-court identification of defendant where the court found that the identification was based on the victim's observation of defendant at the scene of the crime, which was a well-lighted store, and that it was not tainted by a one-on-one confrontation between the victim and defendant at the sheriff's office one day after the crime. 2. Burglary and Unlawful Breakings 3.1 — breaking and entering store — allegation and proof of ownership — no fatal variance There was no fatal variance between indictment and proof in a breaking and entering case where the indictment alleged that defendant "did feloniously break and enter a building occupied by E.L. Kiser (sic) and Company, Inc., a corporation, d/b/a Shop Rite Food Store used as retail grocery located at Old U.S. Highway #52, Rural Hall, North Carolina with the intent to commit a felony therein, to wit: larceny," and the evidence indicated that members of the Kiger family owned and operated the Shop Rite Food Store located on Old U.S. 52 at Rural Hall, but no evidence was introduced as to the corporate ownership or occupancy of the Shop Rite Food Store. 3. Larceny 4 — larceny of property from store — allegation and proof of ownership — fatal variance A fatal variance existed in a felonious larceny case where the State charged larceny of property belonging to E.L. Kiser (sic) and Company, Inc., but proved larceny of property belonging to the Kiger family. 4. Kidnapping 1 — armed robbery and kidnapping committed together — no merger of offenses In a prosecution for breaking and entering, larceny, armed robbery and kidnapping, defendant's contention that the trial court erred in denying his motion to dismiss the charge of kidnapping on the ground that there was a merger of the offenses of armed robbery and kidnapping is without merit, since the evidence was sufficient to show<page_number>Page 132</page_number> that the victim not only was robbed by a firearm but was thereafter confined and restrained by defendant for the purpose of (1) facilitating the commission of a felony in that the victim was forced to aid in the robbery of a store, and (2) facilitating defendant's flight from the sheriff's deputies who arrived at the crime scene.

1. Rules of Civil Procedure 52; Trial 58 — failure to state conclusions separately — absence of prejudice Plaintiffs were not prejudiced because of the court's failure to comply strictly with the directive of G.S. <cross_reference>1A-1</cross_reference>, Rule 52(a)(1) to "state separately its conclusions of law" where some of the court's findings actually embody conclusions of law, the court's factual findings support the judgment entered in favor of defendants and could not support judgment favorable to plaintiffs, and the court's factual findings and legal conclusions, although not separately stated, are adequate to permit appellate review. 2. Rules of Civil Procedure 52; Trial 58 — failure to state conclusions separately — judgment as conclusion Where the court fully and completely sets out the facts found and renders judgment thereon, an exception that the court did not state its findings of fact and conclusions of law separately cannot be sustained since the judgment constitutes the court's conclusion of law on the facts found. 3. Boundaries 11 — boundary dispute — agreement signed by plaintiffs' predecessor In an action to determine the true dividing line between two tracts of land, a boundary line agreement executed by plaintiffs'<page_number>Page 186</page_number> predecessor in title three years after she conveyed her tract to plaintiffs was relevant as evidence tending to show where plaintiffs' predecessor in title considered the true location of the dividing line to be. 4. Boundaries 11; Evidence 11.7 — dead man's statute — signing of boundary agreement In an action to determine the true dividing line between two tracts of land, testimony by defendant that he saw plaintiffs' predecessor in title, who is now deceased, sign an agreement fixing the dividing line between the tracts violated the dead man's statute, G.S. <cross_reference>8-51</cross_reference>; however, plaintiffs were not prejudiced by the admission of such testimony where defendant testified without objection that when he acquired title to his tract, plaintiffs' predecessor was living on the land which she later conveyed to plaintiffs and that she showed defendant a marked tree and told him that such tree marked the corner of the two tracts, and where there was ample competent evidence apart from the boundary line agreement to support the court's findings and judgment determining the location of the boundary line. 5. Boundaries 10.2 — marks on tree as "old" — qualification of witness In an action to determine the true dividing line between two tracts of land, a witness was qualified to testify that marks he observed on a tree were "old," particularly when he went further and testified to the objective facts which caused him to characterize the marks as such.

1. Divorce and Alimony 24.4; Parent and Child 10 — Uniform Reciprocal Enforcement of Support Act — registration and enforcement of foreign order Registration and enforcement of a foreign support order are separate procedures under the Uniform Reciprocal Enforcement of Support Act. 2. Divorce and Alimony 24.4; Parent and Child 10 — registration of foreign support order — jurisdiction over person or property Jurisdiction over the person or property of the obligor is not necessary for registration of a foreign support order under G.S. 52A-29.

Criminal Law 7.1 — entrapment — insufficiency of evidence — instructions surplusage In a prosecution for possession of marijuana for the purpose of sale and sale of marijuana, evidence was insufficient to raise an issue of entrapment where it showed at most that an officer afforded defendant the opportunity to commit the offenses charged in that the officer provided the money to purchase the drugs and loaned defendant his car to get the drugs; therefore, the trial court's instructions with respect to entrapment were mere surplusage and could have in no way prejudiced the defendant.

1. Criminal Law 101; Constitutional Law 56 — juror asleep — failure to declare mistrial The trial court in an armed robbery case did not err in failing to declare a mistrial on its own motion when the court observed that one of the jurors had fallen asleep, and defendant's conviction did not constitute a conviction by eleven jurors instead of the required twelve. 2. Criminal Law 66.18, 178 — in-court identification — admissibility determined at prior trial — law of the case In this second trial of defendant after his first trial ended in a mistrial, the trial court did not err in accepting the determination of the admissibility of in-court identification testimony made at the first trial and refusing to hold another voir dire hearing where defendant was unable to advise the court that he could offer evidence that would be any different from that given at the first hearing 3. Criminal Law 66.9, 66.16 — photographic identification not impermissibly suggestive — independent origin of in-court identification A photographic identification procedure was not impermissibly suggestive where a robbery victim was shown five photographs of young white persons with long hair on the day after the robbery, no suggestion was made that a suspect was included in the group, all five persons in the photographs looked reasonably similar, and the victim immediately selected a photograph of defendant as the robber; furthermore, the victim's in-court identification of defendant was of independent origin and not tainted by the photographic identification where the record shows that the victim had a good opportunity to observe defendant during the commission of the crime at a night deposit box, the victim's description of the robber fit that of defendant, and the victim recognized defendant as a person who had previously cashed checks at the service station where the victim worked.

1. Rules of Civil Procedure 12 — motion for more definite statement — discretion of court The allowance or denial of a motion for a more definite statement rests in the sound discretion of the trial judge, and his ruling thereon will not be overturned on appeal absent a showing of abuse of discretion. 2. Rules of Civil Procedure 12 — motion for more definite statement — when denied So long as a pleading meets the requirements of G.S. <cross_reference>1A-1</cross_reference>, Rule 8, and fairly notified the opposing party of the nature of the claim, a motion for a more definite statement will not be granted. 3. Divorce and Alimony 18.3 — alimony pendente lite — sufficiency of complaint Plaintiff's complaint seeking alimony pendente lite was sufficient to comply with the notice requirements of G.S. <cross_reference>1A-1</cross_reference>, Rule 8, where it alleged that defendant assaulted and beat her, threatened her physically, appropriated her personal assets, forced her to abandon the home on a specified date, and has since failed to provide for her; therefore, defendant's motion for a more definite statement was properly denied. 4. Divorce and Alimony 18.9 — alimony pendente lite — dependent spouse — means to subsist — insufficient evidence Plaintiff failed to introduce evidence from which the court could properly conclude that she was the dependent spouse and was without sufficient means to subsist during the pendency of the action and the court erred in awarding plaintiff alimony pendente lite, where plaintiff's evidence as to her financial condition tended to show that she is presently employed as a sales clerk and earns $72.00 per week; that she lives in a furnished apartment owned by her mother and pays no rent; and that she has a car payment of $122.00.

Criminal Law 157, 163.1 — record on appeal — judgment — exceptions to instructions — certification by clerk An appeal in a criminal case is dismissed for failure to comply with the Rules of Appellate Procedure where a copy of the judgment was not included in the record on appeal as required by App. R. 9(b)(3); exceptions to the court's instructions did not identify the portions in question by brackets or by any other clear means as required by App. R. 10(b)(2); and the record on appeal was not settled before certification of the clerk of court in violation of App. R. 11(e).

1. Appeal and Error 6.2 — appeal from interlocutory order — rights adversely affected — appeal not premature Though the order appealed from which restrained defendants and their agents from removing plaintiff's outdoor advertising sign pending determination of the action on its merits was an interlocutory order, the defendants' appeal was not premature, since the continuance of the injunction in effect and the denial of the motion to dismiss adversely affected important rights of appellants in connection with the performance by them of duties imposed by the N.C. Outdoor Advertising Control Act, Article 11 of Chapter 136 of the General Statutes. 2. Highways and Cartways 2.1 — removal of outdoor advertising — failure of owner to exhaust administrative remedies — injunction improper Plaintiff was not entitled to maintain this action to enjoin defendants from removing his outdoor advertising sign because of an<page_number>Page 538</page_number> alleged violation of control-of-access, since plaintiff did not first exhaust the administrative remedies provided him by G.S. Chap. 136, Art. 11, and by the rules and regulations of the Board of Transportation adopted pursuant thereto.

1. Municipal Corporations 30 — extraterritorial zoning ordinance — failure to comply with enabling Statutes In attempting to make its zoning ordinance applicable to property outside its city limits, defendant failed to comply with applicable enabling statutes in two respects: (1) it failed to give notice of a public hearing, as required by G.S. <cross_reference>160A-364</cross_reference>, adequate to alert owners of property outside the city that their rights might be affected; and (2) it failed to define the boundaries of the extraterritorial area affected in the definitive manner required by G.S. <cross_reference>160A-360</cross_reference>. 2. Appeal and Error 7 — no appeal by plaintiff — no right to raise questions on appeal In an action by plaintiff to enjoin enforcement of defendant's zoning ordinance outside the city limits, plaintiff could not question on appeal the trial court's action in limiting the injunction to<page_number>Page 545</page_number> plaintiff's property rather than making it applicable to the properties of all other affected citizens, since plaintiff did not have standing to represent the interests of persons who were not parties to the litigation, and plaintiff did not appeal from the judgment entered.

Deeds 22 — conveyance subject to restrictions — no easement conveyed — no breach of covenant of seisin Language in a deed from defendants to plaintiffs that "This conveyance is made and accepted subject to restrictive and protective covenants recorded in Book 174, Page 256, Orange County Registry" did not purport to convey the easement for use of a lake created by paragraph 13 of that document, since the deed was delivered subject to restrictions, not easements, and the privilege of using the lake was in no sense a restriction on the land in question and could not have been conveyed by a deed using the word "restrictions."

Master and Servant 94 — workmen's compensation — insufficient finding of facts by Industrial Commission In an action to recover compensation for an alleged injury by accident arising out of and in the course of plaintiff's employment, findings of fact were insufficient to support the order of the Industrial Commission that plaintiff's hearing loss did not result from<page_number>Page 576</page_number> use of a jackhammer on a construction job, and hence was not an injury by accident arising out of and in the course of employment, where such findings consisted only of a recitation of an expert witness's testimony.

1. Rules of Civil Procedure 55 — setting aside entry of default All that needs to be shown to set aside an entry of default is good cause, and the determination of whether good cause exists to vacate an entry of default is addressed to the sound discretion of the trial judge. G.S. <cross_reference>1A-1</cross_reference>, Rule 55(d). 2. Negligence 44 — consistency of verdict A jury verdict was not inconsistent in finding that defendant driver's negligence was not the proximate cause of feme plaintiff's personal injuries and that it was the proximate cause of damage to the male plaintiff's vehicle which the feme plaintiff was driving; nor was the verdict inconsistent in failing to answer an issue as to contributory negligence of the feme plaintiff and finding that contributory negligence by the feme plaintiff was imputed to the male plaintiff.

1. Uniform Commercial Code 78 — sale of collateral — inadequate price Testimony that the price paid by the purchaser of collateral was inadequate was insufficient to raise a genuine issue of fact as to whether a foreclosure sale of the collateral was commercially unreasonable. G.S. <cross_reference>25-9-507</cross_reference>(2). 2. Uniform Commercial Code 78 — sale of collateral — application of proceeds — senior liens A creditor violated G.S. <cross_reference>25-9-504</cross_reference>(1) and (2) by paying off senior liens out of the proceeds of the sale of collateral, and evidence of such violation raised a genuine issue of fact as to the amount the creditor is entitled to recover on a deficiency judgment from guarantors of the note secured by the collateral.

Constitutional Law 49 — waiver of assigned counsel — attempted withdrawal on trial date Where defendant had counsel appointed for him but at the preliminary hearing voluntarily and understandingly waived counsel, he was not thereafter entitled to withdraw his waiver of counsel at any time and have counsel appointed to represent him; therefore, defendant was not prejudiced where he requested appointment of counsel at trial, and the court refused his request but did direct defendant's original attorney to assist defendant in his defense.

1. Insurance 68.6 — automobile liability policy — medical payments — "struck by automobile" Recovery under the medical payments provision of an automobile liability policy providing coverage for accidental injury caused by being "struck by an automobile" does not require physical contact between the automobile and the body of the insured; therefore, an insured was entitled to recover under such provision for medical expenses incurred for an injury received when an automobile struck a rope barrier that had been tied across a city street during a Christmas parade, causing it to break and to strike and injure the insured, although the automobile did not come into physical contact with the insured's body and the rope was not in physical contact with the insured's body at the time it was struck by the automobile. 2. Insurance 68.7 — automobile liability policy — coverage of two automobiles — medical payments The limit of an insurance company's liability under the medical payments provision of an automobile liability policy covering two cars for injury to the insured when she was "struck by an automobile" was the amount on each insured car ($500.00), not the total amount on both insured cars ($1,000.00). 3. Attorney at Law 7.5 — action against insurer — no unwarranted refusal to pay claim — disallowance of attorney's fees The trial court properly found that there was no unwarranted refusal by defendant insurer to pay plaintiff insured's claim under the medical payments provision of an automobile policy covering accidental injury by being "struck by an automobile" where the automobile in question did not come into physical contact with insured's body, and the law was unclear as to whether defendant was liable to plaintiff under the policy; therefore, the trial court properly refused to award attorney's fees to plaintiff under the provisions of G.S. <cross_reference>6-21.1</cross_reference> when it determined that defendant insurer was liable to plaintiff.

1. Rules of Civil Procedure 59 — judgment set aside — sufficiency of affidavits — no abuse of discretion The trial court did not abuse its discretion in granting plaintiff's motion to set aside a judgment for defendant pending the hearing of additional testimony where plaintiff supported his motion with affidavits which presented sworn facts by a person who did not testify at the trial; the affidavits also showed why this person did not testify at the trial; and the judge was of the opinion that his testimony could lead to a new and different judgment. G.S. <cross_reference>1A-1</cross_reference>, Rule 59.<page_number>Page 662</page_number> 2. Trial 58 — trial by judge without jury — conclusiveness of findings In an action tried before the judge without a jury, the findings of the trial court are conclusive on appeal if supported by competent evidence, even though the evidence might sustain a finding to the contrary. 3. Contracts 17 — commission contract — contract not terminable at will Defendant's contention that its contract with plaintiff was terminable at will is without merit where the evidence showed that, by the terms of the written contract, plaintiff was to receive a 5% commission as long as defendant sold its products to a named customer whom plaintiff had acquired for defendant.

1. Embezzlement 4, 6 — allegation of ownership by "Provident Finance Company" — proof of ownership in corporation — no fatal variance There was no fatal variance in an embezzlement case because the indictment placed ownership of the embezzled funds in "The Provident Finance Company" and the evidence placed ownership of the funds in the "Provident Finance Company of Henderson, Inc.," since the words "Provident Finance Company" clearly import a corporation pursuant to G.S. 55-12. 2. Embezzlement 5 — proof of transaction — specific date not alleged The trial court in an embezzlement case did not err in the admission of a witness's testimony concerning transactions on dates which were not particularly listed in the indictment where the indictment alleged that the transactions constituting the alleged embezzlement occurred between two specified dates and then listed particular dates, and the transactions to which the witness testified occurred within the period stated in the indictment, since the defendant had ample notice of the time frame upon which the State relied. 3. Criminal Law 128.2 — use of word "embezzle" in cross-examining defendant — failure to declare mistrial The trial court did not err in refusing to declare a mistrial in an embezzlement case when the prosecutor used the word "embezzle" during his cross-examination of the defendant where the court sustained defendant's objection to the prosecutor's question and instructed the jury to disregard it. 4. Embezzlement 6.1 — evidence of frugal life style — refusal to give requested instruction The trial court in an embezzlement case properly refused to instruct the jury that evidence of defendant's financial condition and the absence of any large expenditures by him should be considered by the jury in determining guilt or innocence where the State did not attempt to prove that defendant converted and spent the missing funds on himself but presented evidence tending to show that defendant misapplied the funds within his employer's company to reduce bad debt accounts and thereby protect his job and enhance his income under the company profit sharing plan, since the requested instruction applied to a situation not at issue in the trial. 5. Criminal Law 114.1 — recapitulation of evidence — disparity in time The fact that the trial court in a complicated case consumed more time in recapitulating the State's evidence than that of the defendant did not constitute an expression of opinion on the evidence.<page_number>Page 668</page_number> 6. Criminal Law 122.2 — jury unable to agree — instruction to deliberate further The trial court did not coerce a verdict in sending the jury back for further deliberations after the jury announced that a verdict had not been reached where the court stressed to the jury that its verdict was not to be bought at the price of the surrender of the conscientious convictions of any of its members. 7. Embezzlement 6 — allegation of "embezzlement and conversion" — proof of misapplication — no fatal variance There was no fatal variance between indictment and proof where the indictment alleged that defendant did "embezzle and convert to his own use" funds of a finance company and the State's evidence tended to show that defendant fraudulently misapplied the funds but failed to show that defendant converted the funds to his own use, since the term "embezzle" includes fraudulent misapplication, and the allegation of conversion may be treated as surplusage.

1. Divorce and Alimony 16 — effect of delay in seeking alimony The mere delay by the dependent spouse in seeking maintenance from the supporting spouse, absent any showing of prejudice to the supporting spouse resulting from the delay, does not bar the dependent spouse's action to enforce the right to support. 2. Rules of Civil Procedure 50 — motion for judgment n.o.v. — necessity for directed verdict motion The timely making of an appropriate motion for a directed verdict is an absolute prerequisite for the motion for judgment notwithstanding the verdict. 3. Rules of Civil Procedure 49; Trial 56 — waiver of jury trial on issue of fact The court's finding that the attorney for the plaintiff agreed that the question of laches by defendant in seeking alimony would be determined solely by the judge was supported by the record where plaintiff's attorney failed to demand that the issue of laches be submitted to the jury, and plaintiff's attorney admitted in his brief that he agreed that no issue of laches would be submitted to the jury, since the judge was authorized by G.S. <cross_reference>1A-1</cross_reference>, Rule 49(c) to make a finding upon an issue of fact absent a request that the issue be submitted to the jury. 4. Trial 58 — findings by court after jury verdict The trial court did not usurp the jury's authority in making detailed findings of fact in its judgment awarding a divorce to plaintiff and alimony to defendant where the findings were made after the jury had returned its verdict and were not inconsistent with the verdict; furthermore, if some of the findings were not necessary to the determination of issues which were before the court to decide, they may be treated as surplusage.

1. Constitutional Law 66 — proceeding with trial in defendant's absence — no error Where defendant participated in jury selection and accepted and passed the jury, but chose not to return following a recess which the court had ordered prior to impaneling the jury, the trial had begun; defendant waived his right to be present during the remainder of the trial; and the court did not err in proceeding with the trial in his absence.<page_number>Page 694</page_number> 2. Constitutional Law 49 — right to counsel — waiver Defendant waived his constitutional right to effective assistance of counsel and to obtain counsel of his choice where defendant employed local counsel of his choice before trial and appeared with his counsel when the case was called for trial; at that time defendant requested that he be allowed to discharge his local counsel and moved for a continuance in order to obtain other counsel from Charlotte; the trial court denied the motion; and defendant chose to proceed without counsel rather than with his local counsel.

Infants 6.7 — custody of minors by parents — visitation rights Where the natural mother of minor children and her present husband, who legally adopted the children, have lawful custody of the children, the courts will not compel the parents to allow visitation of the children by their paternal grandmother and natural aunt, since parents in lawful custody of their minor children have the prerogative to determine with whom their children shall associate.