Volume 38 — North Carolina Court of Appeals Reports

1. Divorce and Alimony 23 — child support arrearage — child over 18 — jurisdiction of court to order payment of arrearage Defendant's contention that the trial court did not have authority to entertain a motion in the cause to reduce to judgment the support payments alleged to be in arrears because the only minor child of the marriage had reached the age of majority is without merit, since the child became 18 on 2 March 1976; plaintiff sought and obtained judgment for only the amount of arrearage in child support which accrued until and including 2 March 1976; and the legal obligation to provide child support and the failure to meet that obligation both arose while the court had jurisdiction. 2. Divorce and Alimony 24 — child support arrearage — motion in the cause to recover — real party in interest In an action to recover past due child support payments, defendant's contention that the child, who had reached the age of 18, was the real party in interest rather than plaintiff mother is without merit since the custodial parent, who provides support which the other parent was legally obligated to provide, is the real party in interest in an action to recover the support so provided. 3. Notice 2; Rules of Civil Procedure 5 — notice served on attorney of record — sufficiency The attorney who represented defendant in the action concerning child support thereby became the defendant's attorney of record and remained such<page_number>Page 26</page_number> by virtue of his failure to withdraw with leave of the court; therefore, notice of a motion in the cause for arrearage in child support could properly be served on defendant's attorney of record, and defendant could not complain of inadequate notice. G.S. <cross_reference>1A-1</cross_reference>, Rule 5 (b).

Automobiles 126.3 — testimony by breathalyzer operator — insufficient foundation — permit issued by Department of Human Resources A proper foundation was not laid for the admission of testimony by a breathalyzer operator where the operator testified that he possessed "a valid permit to administer the breathalyzer test in North Carolina" but there was no showing that the permit was issued by the Department of Human Resources as required by G.S. <cross_reference>20-139.1</cross_reference> (b).

1. Physicians, Surgeons and Allied Professions 14 — malpractice — necessary proof In malpractice cases, plaintiff must demonstrate by the testimony of a qualified expert that the treatment administered by defendant was in negligent violation of the accepted standard of medical care in the community and that defendant's treatment proximately caused plaintiff's injury. 2. Physicians, Surgeons and Allied Professions 17 — malpractice action — continued prescribing of addictive narcotic drugs In a malpractice action based on alleged negligence of defendant physician in causing and increasing plaintiff's addiction to narcotic drugs, the materials presented on motion for summary judgment raised genuine issues of material fact as to whether standard medical practice no longer regarded drug addiction as necessary in the treatment of plaintiff's disease and whether defendant knew or should have known that narcotics were not necessary to control plaintiff's pain. 3. Physicians, Surgeons and Allied Professions 17 — malpractice action — addiction to prescribed drugs — contributory negligence — reliance on physician In a malpractice action based on alleged negligence of defendant physician in causing and increasing plaintiff's addiction to narcotic drugs, summary judgment was not properly entered for defendant on the ground that plaintiff was contributorily negligent as a matter of law in knowingly continuing his addiction to the drugs where plaintiff presented evidence that he relied upon defendant's advice that it would be necessary for him to continue taking the drugs for the rest of his life. 4. Physicians, Surgeons and Allied Professions 13 — malpractice action — continued negligent treatment — statute of limitations The statute of limitations for "latent injury" cases, G.S. <cross_reference>1-15</cross_reference> (b), did not apply to a malpractice action involving a course of continued negligent treatment. Nor did the statute of limitations for malpractice cases provided by G.S. <cross_reference>1-15</cross_reference> (c) apply to such action where the action was pending when the statute was passed. 5. Physicians, Surgeons and Allied Professions 13 — malpractice action — statute of limitations — continued course of treatment The continued course of treatment exception to the common law rule that an action accrues at the time of defendant's negligence applied in a malpractice action based on alleged negligence of defendant physician in continuing to prescribe addictive narcotic drugs for the plaintiff during the years 1962 to 1974. Therefore, plaintiff's cause of action accrued at the earlier of (1) the termination of defendant's treatment of the plaintiff or (2) the time at which plaintiff knew or should have known that the narcotic drugs were unnecessary to the treatment of his disease.<page_number>Page 51</page_number> 6. Physicians, Surgeons and Allied Professions 13 — malpractice — continued prescribing of addictive drugs — accrual of cause of action — knowledge drugs unnecessary In a malpractice action based on the alleged negligence of defendant physician in continuing to prescribe addictive narcotic drugs for plaintiff for twelve years, the evidence on motion for summary judgment presented a genuine issue of material fact as to when plaintiff knew or should have known that the narcotic drugs were not necessary to the treatment of his disease.

Rules of Civil Procedure 24 — action to quiet title — no intervention as matter of right or by permission In an action to quiet title to a homeplace brought by plaintiff mother against her children and their spouses who refused to execute a quitclaim deed to her for the homeplace, applicant-intervenors, who were children and their spouses who had executed the quitclaim deed to plaintiff, were not entitled to intervene as a matter of right pursuant to G.S. <cross_reference>1A-1</cross_reference>, Rule 24 (a)(2), since they did not have an interest in the subject matter of this action, their interest being to have their quitclaim deed set aside; moreover, the trial court did not abuse its discretion in denying applicant-intervenors permission to intervene pursuant to G.S. <cross_reference>1A-1</cross_reference>, Rule 24 (b)(2).

Uniform Commercial Code 38 — purchase money security agreement — Article 9 governing — 10 year statute of limitations The plain language of Article 2 of the N.C. Uniform Commercial Code and subsequent legislative history indicate that the N.C. Legislature intended Article 9 to govern the security aspects of purchase money security agreements and that, accordingly, the ten-year limitation of G.S. <cross_reference>1-47</cross_reference> (2), rather than the four-year limitation of G.S. <cross_reference>25-2-725</cross_reference>, is applicable to such agreements executed under seal.

1. Burglary and Unlawful Breakings 5.7 — unlawful entry — only part of body in vehicle The State's evidence supported a finding that defendant made an entry into a van within the meaning of G.S. <cross_reference>14-56</cross_reference> where it tended to show that defendant was standing on the street at the open door of the van with the upper part of his body in the van. 2. Criminal Law 34.2 — testimony showing prior crime — absence of prejudice Defendant was not prejudiced by a witness's testimony that defendant stated he didn't want to go back to court because he just got out of prison where the court sustained defendant's objection to the testimony, and defendant testified on direct examination that he had been convicted of common law robbery and was out on parole.

Insane Persons 1.2 — involuntary commitment — imminent danger — need for constant care The trial court in an involuntary commitment proceeding erred in finding that respondent was imminently dangerous to herself or others where the evidence showed only that respondent was completely unable to care for herself and needed nursing home or similar care. G.S. 122-58.1, -58.7, -58.8 (b).

1. Rules of Civil Procedure 56.5 — summary judgment — findings of fact Upon entry of summary judgment, the trial court should not make findings of fact, which are decisions upon conflicting evidence, but may list the undisputed material facts which are the basis of its conclusions of law and judgment. 2. Municipal Corporations 30.4 — zoning ordinance — determination of validity Where the most that can be said against a zoning ordinance is that whether it is unreasonable, arbitrary or discriminatory is fairly debatable, the courts will not interfere and will not substitute their judgment for that of the legislative body possessed of the primary responsibility for determining whether an act is in the interest of the public health, safety, morals or general welfare. 3. Municipal Corporations 30.9 — spot zoning A zoning ordinance or amendment which singles out and reclassifies a single lot or a few lots adjacent to a larger area uniformly zoned, so as to impose upon such lots greater restrictions than those imposed upon the larger area, or so as to relieve them from restrictions to which the rest of the area is subjected, constitutes "spot zoning" and is beyond the authority of a municipality in the absence of a clear showing of a reasonable basis for such distinction. 4. Municipal Corporations 8; Statutes 5.1 — legislative intent — statements of member of legislative body Although courts may consider the circumstances surrounding the adoption of a statute or ordinance in determining the evil sought to be remedied, it is not permissible to prove the intent of a legislative body by statements of one of its members. 5. Municipal Corporations 30.9 — ordinance creating historic district — spot zoning — issue of material fact In a declaratory judgment action contesting the validity of an ordinance of the City of Raleigh creating the "Oakwood Historic District," a genuine issue of material fact was presented as to whether the ordinance constituted unlawful "spot zoning" where plaintiff made a prima facie showing of spot zoning by introducing evidence that its lot and two others zoned office and institutional were included within the historic district while other similar lots in the area were not so included, and where defendant city failed to make a clear showing of a reasonable basis for such distinction. 6. Municipal Corporations 30.9 — ordinance creating historic district — comprehensive zoning plan — issue of fact In a declaratory judgment action contesting the validity of a city ordinance creating a historic district, the trial court erred in entering<page_number>Page 272</page_number> summary judgment for defendant city where the city's evidence was self-contradictory as to whether the city had at all times maintained a comprehensive plan for zoning and whether the inclusion of plaintiff's property in the historic district was in accordance with such plan.

Automobiles 3; Criminal Law 26.5 — conviction of driving without license — trial for driving while license permanently revoked — double jeopardy Where defendant entered a plea of guilty to a charge of driving without a license in violation of G.S. <cross_reference>20-7</cross_reference>, the State was precluded by the prohibition against double jeopardy from thereafter prosecuting defendant for driving while his license was permanently revoked in violation of G.S. <cross_reference>20-28</cross_reference> based on the same occurrence, since evidence that defendant was driving an automobile while his license was permanently revoked would sustain a conviction for driving without a license.

1. Process 9.1 — arrearages under separation agreement — nonresident defendant — in personam jurisdiction Defendant's contention that G.S. <cross_reference>1-75.4</cross_reference> (5)(c) would not give the district court in personam jurisdiction over a nonresident defendant in an action for arrearages due under a separation agreement is without merit. 2. Process 9.1 — jurisdiction over nonresident defendant — money as a thing of value Money payments are a "thing of value" within the meaning of G.S. <cross_reference>1-75.4</cross_reference> (5)(c). 3. Husband and Wife 13 — arrearages under separation agreement — proper forum for action The proper forum for an action for arrearages due under a separation agreement is the state in which the separation agreement was entered into when one of the parties to the separation agreement is still a resident of that state.

1. Insane Persons 1.2 — involuntary commitment petition — hearing held on eleventh day of custody The trial court properly refused to dismiss an involuntary commitment petition because a hearing was not held within ten days of the day respondent was taken into custody as required by G.S. 122-58.7 (a), since the tenth day after respondent was taken into custody was a Sunday; the hearing was held on the following day; G.S. <cross_reference>1A-1</cross_reference>, Rule 6 (a) provides that when the last day of a period of time prescribed by an applicable statute is a Saturday, Sunday or legal holiday, the period runs to the end of the next day which is not a Saturday, Sunday or legal holiday; and thus the hearing called for by G.S. 122-58.7 (a) was held in apt time. 2. Insane Persons 1.2 — involuntary commitment proceeding — no medical evidence required The involuntary commitment statutes do not provide that an order of commitment may issue only when the requisite factual findings are supported by competent medical evidence; rather, all that is required is that the court make the essential findings from "clear, cogent, and convincing evidence," which the court did in this proceeding. G.S. 122-58.7 (i).

1. Unfair Competition 1 — unfair competition or trade practices — application to disputes between competitors The statute prohibiting unfair methods of competition and unfair or deceptive trade practices, former G.S. <cross_reference>75-1.1</cross_reference>, does not apply only to dealings between buyers and sellers but applies to disputes between competitors. 2. Unfair Competition 1 — advertisement not false or misleading — no unfair competition Defendant's reference in its advertisement of a tobacco combine to its "exclusive CutterBar" for priming tips did not constitute an unfair method of competition or unfair or deceptive act or practice within the meaning of former G.S. <cross_reference>75-1.1</cross_reference> where, at the time the advertisement appeared, defendant was the only company which held a license to manufacture and sell the patented "CutterBar," plaintiff only obtained a similar license some two months after this suit was filed, and the advertisement was, therefore, neither false nor misleading. 3. Unfair Competition 1 — puffing in advertisement — no unfair competition or deceptive act A statement in defendant's advertisement that only defendant's tobacco combine primed lugs through tips, when, in fact, a combine manufactured by plaintiff also primed lugs through tips, did not go so far beyond tolerable limits of puffing as to constitute unfair competition or an unfair or deceptive act within the meaning of former G.S. <cross_reference>75-1.1</cross_reference> where the advertisement concerned a machine which cost in excess of $16,000, and it was directed to knowledgeable buyers who would not normally make such a large capital outlay by relying solely upon such an advertisement. 4. Unfair Competition 1 — puffing in advertisement — no unfair competition or deceptive act Allegedly false statements in plaintiff's advertisement that its tobacco primer was "years ahead of any other automatic tobacco harvester on the market," that its primer was a dramatic breakthrough in tobacco harvesting, and that its tobacco curing barns and racks had greater capacity, strength and fuel economy than those manufactured by defendant did not go so far beyond tolerable limits of puffing as to constitute unfair acts proscribed by former G.S. <cross_reference>75-1.1</cross_reference>. 5. Unfair Competition 1 — passing off competitor's goods as own product — unfair method of competition Defendant's allegations that plaintiff incorporated into its automatic tobacco harvester a defoliator manufactured by defendant and<page_number>Page 394</page_number> demonstrated this defoliator to potential customers as a product manufactured by plaintiff stated a claim for relief under the statute prohibiting unfair methods of competition, former G.S. <cross_reference>75-1.1</cross_reference>.

1. Rules of Civil Procedure 65 — preliminary injunction — absence of statement of reasons — order irregular The absence of a statement of the reasons for a preliminary injunction only rendered the order irregular, not void, and the irregularity should be corrected by the trial court, not the court on appeal. 2. Rules of Civil Procedure 60 — order clarifying preliminary injunction order — propriety The trial court could properly issue a clarifying order, pursuant to G.S. <cross_reference>1A-1</cross_reference>, Rule 60 (a), setting forth the reasons for a preliminary injunction, since the correction did not alter the effect of the order but did clarify the record for appeal, and defendant was not prejudiced by this correction because he was well aware of the facts in the case which would support the injunction. 3. Rules of Civil Procedure 65 — preliminary injunction — sufficiency of affidavits Defendant's contention that there was no probable cause for a preliminary injunction because the affidavits were insufficient is without merit since defendant relied upon G.S. <cross_reference>1A-1</cross_reference>, Rule 56 (e) to support his position, but that rule established the requirements for affidavits to support a summary judgment motion and therefore was not controlling in this action. 4. Injunctions 13.2 — covenant not to compete — irreparable loss shown In an action to enforce a restrictive covenant prohibiting defendant from engaging in accounts payable auditing in competition with plaintiff, the plaintiff's affidavits and exhibits which suggested that defendant had access to and would use certain confidential information in his own accounts payable auditing were sufficient to support the trial court's finding of irreparable loss, as the dissemination of plaintiff's information would be harmful to its business. 5. Master and Servant 11.1 — contract containing restrictive covenant — validity of assignments In an action to enforce a restrictive covenant in an employment contract, defendant's contention that assignments of the contract were invalid because<page_number>Page 423</page_number> the contract was one for personal services, defendant had no notice of the assignments and he did not consent to them is without merit, since the assignments did not affect defendant's duties and obligations and affidavits tended to show that defendant had actual notice that the contract had been assigned to plaintiff. 6. Master and Servant 11.1 — restrictive covenants — requirements In order for a restrictive covenant to be enforceable it must be in writing, entered into at the time and as a part of the contract of employment, based on valuable considerations, reasonable both as to time and territory embraced in the restrictions, fair to the parties, and not against public policy. 7. Master and Servant 11.1 — covenant not to compete — reasonableness of terms A restrictive covenant prohibiting defendant from competing with plaintiff in "any area or areas from time to time constituting the Principal's or Associate's area of activity in the conduct of their respective businesses" for a period of two years after termination of employment was reasonable and not unduly vague, since confidential information given to defendant would be viable for two years; the covenant specifically restricted only businesses which would compete with plaintiff and thus was reasonable in light of the plaintiff's sole business of accounts payable auditing; and the contract made it clear that plaintiff operated in the southeastern area of the U.S. and named the states involved, thus making the territorial restriction clear. 8. Injunctions 16 — amount of bond discretionary The setting of bond for damages resulting from a preliminary injunction is within the trial court's discretion and no appeal lies from this determination.

1. Process 13; Rules of Civil Procedure 4 — service on agent of foreign corporation — sufficiency of service Service of process upon defendant was valid where certified mail was addressed to defendant's process agent but was received by another person at defendant's address since G.S. <cross_reference>1A-1</cross_reference>, Rule 4 (j)(9)b does not require service by certified mail to be accomplished only by delivery of process personally to the addressee; and the return receipt, along with the affidavit of plaintiff's attorney, gave rise to an inference that the person who received the summons and complaint did so on behalf of defendant and that this person was of reasonable age and discretion so that he could receive mail for defendant. 2. Limitation of Actions 4.2 — negligence action — faulty plumbing — three year period of limitation not enlarged Though the actions of defendant in altering plumbing while engaged as a contractor performing a portion of the construction of a textile plant where plaintiff was employed brought defendant within the provisions of G.S. <cross_reference>1-50</cross_reference> (5), that statute did not extend the time within which plaintiff could bring an action against defendant for injuries sustained by plaintiff when a urinal exploded, allegedly the result of defendant's negligence in altering the plumbing, since G.S. <cross_reference>1-50</cross_reference> (5) provides an outside limit of six years "after the performance or furnishing of such services and construction" of improvements to real property for the bringing of an action coming within the terms of that statute, but within that outside limit G.S. <cross_reference>1-52</cross_reference> (5), the three year statute of limitation, continues to operate. Therefore, plaintiff's action against defendant was barred where plaintiff's injury occurred on 11 November 1972; plaintiff instituted his action on 10 November 1975; but the action against defendant was not instituted until plaintiff's amended complaint was filed on 1 September 1976, more than three years after the injury occurred.

1. Divorce and Alimony 24.3 — child support — construction of order The trial court did not err in concluding that a provision of a separation agreement and consent judgment requiring the husband to continue to furnish inadequate support for his minor child "when it is no longer necessary" for the husband to furnish support to the wife was intended by the parties to provide for continued child support payments in the event of the wife's death or remarriage.<page_number>Page 505</page_number> 2. Divorce and Alimony 19.4 — motion to reduce alimony and child support — change of circumstances — earning capacity — no bad faith effort The evidence was insufficient to support the court's denial of plaintiff husband's motion for a reduction in alimony and child support payments required by a consent judgment on the ground that plaintiff's change in circumstances was voluntarily effected by him in disregard of his marital and parental support obligations where it tended to show that plaintiff gave up his $15,000 per year job as recreation director of the Cherokee reservation in order to return to college to complete his undergraduate degree in recreation, with the expectation of employment at a higher salary in a different locale after he obtained his degree; plaintiff returned to college and arranged to meet his alimony and child support obligations from his income under the GI bill; plaintiff was concerned about mounting financial obligations, decided not to return to school, and took a job with a construction company at a salary well below that which he received while employed as a recreation director; after separation of the parties, plaintiff purchased a new car; and after entry of the consent judgment, plaintiff purchased a mobile home and a motorcycle.

Insane Persons 1; Physicians, Surgeons and Allied Professions 11 — wrongful certification to mental hospital — sufficiency of evidence Plaintiff's complaint was sufficient to state a claim for relief against a medical doctor for wrongful certification of plaintiff for admission to a mental hospital where it alleged that defendant certified<page_number>Page 521</page_number> that he had examined plaintiff pursuant to G.S. 122-58.4 and found her to be mentally ill and imminently dangerous to herself or others when in fact defendant had not made an examination of plaintiff.

Boundaries 1; Deeds 26 — Torrens deed — general and specific descriptions — specific description controlling In an action to condemn property in order to enlarge a bridge where two families claimed ownership to a portion of the tract sought to be condemned, the trial court properly determined that the metes and bounds description in one family's Land Registration Certificate was controlling, the disputed property was included in that metes and bounds description, and the further reference in the Certificate to "Tract No. 2" of the Jelser Proceeding was inserted merely for the purpose of identifying generally the property that was more specifically described by metes and bounds.<page_number>Page 534</page_number>

Insurance 149 — liability insurance — attorney fees in attempt to retain job A liability policy which required the insurer to pay any claims made against the insured school superintendent for amounts he is legally obligated to pay (including attorney fees necessary for defense of such claims) as the result of his negligence or breach of duty did not provide coverage for attorney fees incurred by the insured in attempting to retain his position as superintendent after the school board had rescinded a prior decision to reemploy plaintiff and in defending a counterclaim by the school board to recover amounts paid by the board pursuant to a stay order pending final outcome of the litigation.

1. Damages 9 — minimizing damages — jury question raised — summary judgment improper In an action to recover the alleged balance due for goods sold by plaintiff's assignor to defendant, the trial court erred in allowing plaintiff's motion to amend the complaint and motion for summary judgment where defendant alleged that plaintiff failed to take action to sell the undelivered goods to someone else and thereby minimize damages; plaintiff's amendment was a reduction in the amount of the prayer for relief on the ground that plaintiff, after considerable effort, was able to sell the goods for a reduced amount; the amendment raised the same question of minimizing damages which defendant had earlier raised; and whether plaintiff exercised reasonable diligence to minimize its loss was a question for the jury to determine in its consideration of the issue of damages. 2. Rules of Civil Procedure 15 — motion to amend allowed — immediate summary judgment improper The trial court erred in allowing plaintiff's motion for summary judgment on the same day that he allowed plaintiff's motion to amend its complaint, since G.S. <cross_reference>1A-1</cross_reference>, Rule 15 (a) gives a party 30 days to respond to an amended pleading.

Automobiles 58.2 — collision with overtaking vehicle — failure to give turn signal Plaintiff's evidence was sufficient for the jury in an action to recover for injuries suffered by plaintiff when the car in which he was a passenger struck defendant's car in its left side while defendant was executing a left turn where it tended to show that defendant did not give a turn signal and turned directly into the path of an overtaking vehicle which was in the left or passing lane.

1. Rules of Civil Procedure 36 — request for admission of facts — timeliness-method for objecting — failure to respond The trial court properly ordered that plaintiff's request for admissions be deemed admitted because of defendants' failure to respond within the 20-day period allowed under then existing G.S. <cross_reference>1A-1</cross_reference>, Rule 36, and defendants' contention that the request for admissions was a nullity because it was filed more than 120 days beyond the last required pleading of defendants is not determinative of the issue, since G.S. <cross_reference>1A-1</cross_reference>, Rule 36, as it existed at the time of plaintiff's request, provided that, to avoid having requests deemed admitted, a party must respond within the period of the rule if there was any objection whatsoever to the request, and defendants therefore should have asserted the nullity of the request within the 20-day period. 2. Negligence 27 — failure to warn of dangerous condition — evidence of prior contract admissible In a wrongful death action where plaintiff alleged negligent installation of a home air conditioning unit and negligent failure of defendant's employee to warn plaintiff's intestate of the dangerous condition alleged to exist in the air conditioning system when he serviced it one week prior to intestate's death, the trial court did not err in allowing testimony concerning the original installation contract or in instructing relative to the original installation and contract, though the court had previously granted defendants' motion for pretrial summary judgment in regard to plaintiff's allegations concerning negligent installation, since such evidence was probative of the fact that defendants were continually aware of the characteristics of the system and knew or should have known the dangerous condition of the unit when the employee made his service call; if defendants were concerned that the evidence might be understood by the jury to relate to a matter not in issue, defendants could have requested a limiting instruction; and the court properly instructed the jury, as requested by defendants, that the plaintiff's only cause of action arose from the alleged negligent conduct of defendant's employee who made the service call. 3. Death 7.4 — wrongful death — deceased's earning capacity — expert testimony — statistical computation not given The trial court in a wrongful death action did not err in permitting testimony of an expert economist concerning the expected income of intestate, since, other than the statistical basis for the expert's calculations, the facts relating to the deceased's earning capacity which could be found by the jury were properly included in the hypothetical question put to the expert, and the failure to elaborate the expert's computations step by step went to the weight to be given his testimony, not to its admissibility.<page_number>Page 631</page_number> 4. Appeal and Error 30.3 — unresponsive answer — motion to strike required — exception to denial required on appeal Where there is a voluntary statement by a witness not called for in the question, the only way to take advantage of the error is to move to strike the testimony and to except to the denial of that motion on appeal. 5. Evidence 55 — expert in electrical engineering — personal observation — opinion admissible In a wrongful death action where the evidence tended to show that deceased was electrocuted when he came into contact with uninsulated wires while changing the air filter in his air conditioning unit, the trial court did not err in allowing a professor of electrical engineering from N.C. State University to testify, over objection, that it would not be necessary, for safety reasons, to cut off the power to the unit if the capacitor had been shielded properly or placed in a more remote location, since the witness had personally inspected the air conditioning unit in question and was qualified by opportunity, training and experience to give such an opinion. 6. Death 3.6; Negligence 13.1 — wrongful death action — electrocution — no contributory negligence as matter of law In a wrongful death action where the evidence tended to show that deceased was electrocuted when he came into contact with uninsulated wires while changing the air filter in his air conditioning unit, evidence was insufficient to show that decedent was contributorily negligent as a matter of law where the evidence did not show that deceased knew or in the exercise of reasonable care should have known of the dangerous condition of the capacitor, nor did it show that he failed to exercise due care to avoid contact with the starter coil when he attempted to change filters. 7. Limitation of Actions 3.1, 4.3 — installation of air conditioning unit — wrongful death action seven years later barred — no revival Trial court properly granted summary judgment for defendants on plaintiff's claim for wrongful death based on negligent installation of an air conditioning unit and breach of warranty arising upon that installation, since plaintiff's action, instituted on 15 August 1972 and based on the installation which occurred on 20 July 1965, was barred by the three year statute of limitations of G.S. <cross_reference>1-52</cross_reference> and could not be revived by G.S. <cross_reference>1-15</cross_reference> (b), which became effective three years after plaintiff's action was already barred.

1. Criminal Law 22, 91 — right not to be tried same week as arraignment — waiver Defendant waived his right under G.S. <cross_reference>15A-943</cross_reference> (b) not to be tried in the week in which he was arraigned where he failed to move for a continuance under the statute but moved for a continuance only on the ground that a subpoena had been issued but not served on an essential defense witness. 2. Criminal Law 91.7 — unavailability of witness — denial of continuance The trial court did not err in the denial of defendants' motion for a continuance for an indefinite time because of the unavailability of an essential defense witness where the motion was not supported by an affidavit showing what defendants expected to prove by the witness or how the absence of the testimony would be prejudicial to them, and an inquiry by the court showed that no one present knew the whereabouts of the witness or had seen him in six months. 3. Criminal Law 7.1 — no entrapment as matter of law The evidence did not show entrapment as a matter of law by an undercover officer in this prosecution for possession of marijuana with intent to sell and sale of marijuana. 4. Criminal Law 126.2 — acceptance of verdict after correction The trial court properly accepted a verdict of guilty of possession of marijuana with intent to sell where the jury foreman first stated that the jury found defendant guilty of possession of more than one ounce of marijuana, the foreman then corrected the verdict to guilty of possession of marijuana with intent to sell, and the corrected verdict was confirmed by a poll of the jury.<page_number>Page 673</page_number>

1. Husband and Wife 1 — wife's services in business gratuitous — no ownership interest in business by wife Plaintiff wife's claim that her bookkeeping, supervision of employees and running of errands in defendant husband's land clearing business entitled her to an ownership interest in the business when funds derived from the business and placed in joint bank accounts were used to capitalize the business is without merit, since plaintiff failed to overcome the presumption that her services were rendered gratuitously, and since there was no showing that defendant intended to make a gift to his wife of the funds derived from his business which he placed in the joint accounts. 2. Trusts 14.2 — fiduciary relationship between husband and wife — use of funds to capitalize business — no constructive trust on stock for wife The trial court erred in imposing a constructive trust on the stock of a business which had been capitalized with funds derived from the business and placed in joint bank accounts of plaintiff wife and defendant husband, even though plaintiff had contributed her services to the building up of the business and even though a fiduciary relationship existed between the parties, since there was no evidence that defendant failed to disclose any material fact with respect to use of the funds to capitalize and there was no showing of any wrongdoing on defendant's part.

1. Adoption 2.2 — abandonment — father in prison — insufficiency of evidence In an adoption proceeding where petitioners alleged that the child's natural parents had abandoned him, evidence of respondent, the child's natural father, tending to show that he was not aware that the child had been placed in the custody of the Department of Social Services, that he was unable to locate his son, and that as a result of his imprisonment he was unable to make any payments to support the child was inconsistent with a willful intent to abandon his son. 2. Adoption 2.2 — abandonment alleged — evidence of unfitness not considered Petitioners' contention in an adoption proceeding that the fact that respondent, the child's natural father, had committed the crime against nature, was found guilty and was incarcerated evinced a willful intent to forego any responsibility to the child was without merit, since evidence of respondent's commission of the crime might be relevant or determinative on the issue of whether a parent forfeited parental rights because of unfitness, but in this<page_number>Page 725</page_number> proceeding the pleadings presented only the issue of abandonment and that single issue was presented to the jury.

1. Rules of Civil Procedure 7 — failure of motion to state rule number — waiver of right to challenge Where defendant failed to challenge plaintiff's motion to set aside an order of dismissal on the ground that the motion failed to specify the number of the rule under which plaintiff was proceeding as required by Rule 6 of the General Rules of Practice for Superior and District Courts Supplemental to the Rules of Civil Procedure, the trial court should have treated plaintiff's motion as one filed pursuant to G.S. <cross_reference>1A-1</cross_reference>, Rule 60 (b). 2. Rules of Civil Procedure 60 — motion to set aside order — court's erroneous belief as to authority A superior court judge has the authority to grant relief under a Rule 60 (b) motion without offending the rule that precludes one superior court judge from reviewing the decision of another, and plaintiff is entitled to a proper hearing on a Rule 60 (b) motion to set aside an order of dismissal where the court denied the motion because he erroneously believed that he lacked the power to grant it.