Volume 41 — North Carolina Court of Appeals Reports

1. Wills 67 — ademption defined An ademption is the extinguishment of a testamentary gift, and it generally occurs whenever the subject matter of a specific devise or bequest is not found in the estate of the testator at the time of his death. 2. Wills 67 — ademption — rule of law — intent of testator The principle of ademption is a rule of law which operates without regard to the testator's intent. However, the principle of ademption does not apply when the testator intends that the beneficiary of a<page_number>Page 16</page_number> specific gift shall have other property in the event the property which is the subject matter of the specific testamentary gift no longer remains in his estate in specie at the time of his death and specifically says so according to established rules of law; in such cases, the beneficiary is enabled to claim the substitute or contingent gift as a separate specific testamentary gift by the testator. 3. Wills 67 — ademption — incompetency of testatrix — sale of subject matter of gifts by trustees The principle of ademption did not apply when the testatrix became incompetent and remained incompetent until her death and the subject matter of specific testamentary gifts was sold by her trustees during her incompetency. In such case, the beneficiaries of the specific gifts are not limited to the proceeds of the sales of the subject matter which are traceable into her estate but are entitled to the entire proceeds of the sales of such gifts unless it is necessary to abate all of testatrix's testamentary gifts. 4. Wills 58.1 — gift of stock — incompetent testatrix — purchase of additional stock by trustees — amount of stock to be received by beneficiary Where testatrix bequeathed all of her stock in a certain oil company to her sister, shares of stock in the oil company purchased by testatrix's trustees after she became mentally incompetent did not pass to her sister under terms of the will, since the testatrix did not intend for her trustees to be able to increase one of her testamentary gifts at the expense of another by using funds in the estate to purchase property of the same description as other property which formed the subject matter of a specific testamentary gift. 5. Wills 52 — residuary clause — life estate — lapsed gifts Where testatrix's will left the residue of her estate to her husband for his lifetime or until he remarried and left specific items of property to named beneficiaries upon the husband's death or remarriage, gifts which lapsed by reason of the deaths of the beneficiaries prior to the death of the testatrix passed to testatrix's husband under the residuary clause and by intestate succession after his death or remarriage. 6. Wills 61.6 — husband's dissent from will — absence of right to dissent when will written or when testatrix became incompetent The fact that the husband of the testatrix had no right to dissent at the time testatrix's will was written or at the time she became mentally incompetent did not bar his right to dissent given him by G.S. <cross_reference>30-1</cross_reference>. 7. Wills 61.6 — husband's dissent from will — effect of husband's subsequent death The valid exercise of a right to dissent by testatrix's husband did not terminate upon his death but passed to his estate.

1. Evidence 11 — action to recover rental value of land — Dead Man's Statute In an action by the executor of testatrix to recover the reasonable rental value of farmland for the year prior to testatrix' death, an affidavit by defendant who had rented and cultivated the land concerning the amount of land involved and the agreed rental price was inadmissible because of the Dead Man's Statute, G.S. <cross_reference>8-51</cross_reference>; however, the trial court erred in excluding an affidavit by defendant's son concerning the rental contract since the son was not a party to the action or a person interested in the event of the action, nor was he testifying in his own behalf or that of a party succeeding to his interest, nor was he testifying as to a personal transaction or communication between himself and the deceased. 2. Executors and Administrators 8 — action to recover rental value of land — summary judgment improper In an action by plaintiff executor to recover the reasonable rental value of testatrix' farmland which was rented and cultivated by defendant, the son of testatrix, the trial court erred in granting<page_number>Page 40</page_number> partial summary judgment for plaintiff where interrogatories to and answers of defendant, to which plaintiff made no objection, raised genuine issues of material fact as to whether there was an express contract for the rental of the farm at $30 per acre and as to whether the estate of testatrix' husband was liable to plaintiff for any rent money received by the husband from defendant son.

1. Criminal Law 92.1 — two defendants — same crimes — consolidation proper Charges against two defendants were properly joined for trial under G.S. <cross_reference>15A-926</cross_reference> (b) where each defendant was charged with thefts which apparently occurred in the same general area and during the same time span; the goods were all discovered in one defendant's vehicle in which the other defendant was also riding on the afternoon of the thefts; the defendants were seen together earlier in the afternoon of the same day at all three of the stores which were subsequently discovered to have been victims of shoplifting; and evidence admitted against one defendant was admissible against the other defendant and their defenses were not antagonistic. 2. Searches and Seizures 18 — warrantless search of vehicle — consent given by owner — probable cause A warrantless search of one defendant's vehicle was constitutional where defendant, as the registered owner and person in control of the vehicle, consented to the search, and where the officer conducting the search had probable cause to believe that the vehicle contained stolen merchandise. 3. Larceny 9 — felonious larceny — value of property not stated in verdict Where all of the evidence tended to show that merchandise stolen by defendants was valued at over $200, the jury was not required by G.S. <cross_reference>15A-1237</cross_reference> (a) to state in their verdict the value of the stolen property. 4. Larceny 7.8 — merchandise taken from stores — sufficiency of evidence Evidence was sufficient to be submitted to the jury in a prosecution for felonious larceny where it tended to show that defendants were observed together in stores from which it was subsequently discovered that goods worth more than $200 had been taken and the stolen merchandise was found later that same day in the car of one defendant, who was driving, and in which the second defendant was a passenger.<page_number>Page 96</page_number>

Evidence 32.2 — written contract granting exclusive right to sell realty — parol evidence varying terms of contract Where a written contract gave plaintiff broker the exclusive right to sell certain real estate for defendants, the parol evidence rule rendered inadmissible evidence offered by defendants that the parties had agreed just before or simultaneously with the written contract that another broker also had the right to sell the property and that the broker who made the sale would receive the commission.

1. Burglary and Unlawful Breakings 4 — usual practice of locking doors — relevancy of evidence — no prejudice In view of the uncontradicted evidence in a felonious breaking or entering case that defendant entered the victim's dwelling without permission, the admission of evidence as to the "usual practice" of the victim with regard to locking his home at night, even if not relevant, was certainly not prejudicial to defendant. 2. Criminal Law 73.2, 85 — defendant's nickname — no hearsay — no improper character evidence In a prosecution for felonious breaking or entering, testimony by a victim that he knew defendant by the nickname, Spook, was not inadmissible because it was hearsay or because it tended to impeach defendant's character when his character was not at issue, since the name a person is called is a fact, not hearsay, and since the testimony was relevant to show the witness's acquaintance and familiarity with defendant and was therefore not inadmissible even if it did incidentally reflect upon character.<page_number>Page 172</page_number>

Searches and Seizures 23 — warrant to search house — sufficiency of affidavit to show probable cause An affidavit contained a sufficient recital of facts and underlying circumstances to constitute probable cause for issuance of a search warrant where the affidavit specifically described the residence to be searched, specified the reason for the search was to find marijuana and evidence of manufacturing marijuana, and stated that officers believed such evidence might be found because patches of marijuana were growing across the road from the described premises; a path led from the patches to the house; footprints went from the patches to the house; there were no other residences any nearer to the patches than one-quarter mile; the price tag on a box of plant food found in one patch indicated that it was purchased at the Marine Corps Exchange; and a check with the local deputy revealed that military personnel lived in the premises in question and that they were the only military personnel in the area.

Negligence 57.6 — fall on theater floor — negligence in failing to clean — question of material fact In an action to recover for injuries received by plaintiff in a fall in defendant's movie theater, the trial court erred in granting summary judgment in favor of defendant on the issue of whether defendant was negligent in failing adequately to clean the theater and in thereby creating an unsafe condition which proximately caused plaintiff's injury where plaintiff presented evidence on the motion for summary judgment that she fell when she slipped on popcorn and soft drink which had been<page_number>Page 263</page_number> spilled on the theater floor, and defendant presented evidence that it cleaned its theater once a day and had cleaned it on the evening prior to plaintiff's injury, and that its cleaning procedures met the standard practice for movie theaters.

1. Appeal and Error 48.2 — objection to evidence — similar evidence admitted without objection — objection waived Defendants waived their objection to evidence by a State Trooper where they subsequently offered similar evidence themselves. 2. Evidence 44 — physical pain — nonexpert opinion evidence A nonexpert witness may testify as to pain suffered by another, based upon his personal observation. 3. Automobiles 53.2 — passing in intersection — collision — no directed verdict In an action to recover for injuries sustained when the pickup truck in which plaintiff and third-party defendant were riding collided with a tractor-trailer driven by one defendant, the trial court properly denied<page_number>Page 268</page_number> defendants' motions for directed verdict where the evidence tended to show that defendant was negligent in operating his truck by attempting to pass at an intersection, that this negligence was a proximate cause of the injuries sustained, and that the driver of the pickup was not contributorily negligent as a matter of law. 4. Automobiles 90.9 — instructions — parties' contentions — double yellow line — stopping at stop sign In an action to recover for injuries sustained in an automobile accident, instructions by the trial court were proper with respect to defendants' contentions, the purpose of a double yellow line, and evidence as to whether the third-party defendant driver failed to stop at a stop sign. 5. Evidence 3.4 — permanent scarring — judicial notice of mortuary tables Permanent scarring is sufficient evidence to permit judicial notice of mortuary tables.

1. Contracts 18.1 — claim for extra costs — waiver of written notice Defendant contractor waived any rights it had under a subcontract to written notice of the subcontractor's claim for extra costs incurred for the storage of building materials in an off-site bonded warehouse by its agreement with the subcontractor for the off-site storage. 2. Contract 18.1 — recovery for extra costs In a subcontractor's action against a contractor to recover extra costs incurred in the performance of the subcontract, the evidence supported the trial court's findings that plaintiff subcontractor was entitled to recover extra costs for the storage of building materials in a dry warehouse off the project site and for additional work caused by a change in the plans and specifications for the corner ridges of the building being constructed. 3. Contract 18.2 — denial of recovery for extra costs — sufficiency of supporting evidence In a subcontractor's action against a contractor to recover extra costs for glass curtain wall work in a building constructed by the contractor, the evidence supported the trial court's determination that plaintiff subcontractor was not entitled to recover extra costs incurred to realign support steel for the curtain wall which it alleged defendant installed with improper tolerance because (1) incompatibility of tolerances of the support steel and the glass curtain wall resulted from the project design rather than from defendant's failure to follow contract specifications, and (2) defendant contractor issued no written order for the extra work as required by the terms of the subcontract.

1. Criminal Law 162.5 — objections to testimony sustained — failure to give limiting instructions Defendant was not prejudiced when the court sustained his objections to testimony without giving limiting instructions where defendant made no request for limiting instructions. 2. Criminal Law 71 — observations concerning bloodstains — shorthand statement of fact An officer's observations that certain bloodstains appeared to have been wiped up and that a towel appeared to have been saturated with blood were admissible as shorthand statements of fact. 3. Homicide 15.5 — lay testimony as to "stab wound" — harmless error The trial court's erroneous admission of an officer's testimony that there was a "stab wound" in the center of deceased's chest was not prejudicial where an expert medical witness testified that deceased died as a result of bleeding from a stab wound to the chest and heart. 4. Homicide 15.2 — absence of immediate medical attention — relevancy to show malice A medical expert's opinion testimony in a second degree murder case that deceased's life might have been saved if she had received immediate medical attention after she was stabbed was relevant on the issue of malice.<page_number>Page 293</page_number> 5. Constitutional Law 30; Bills of Discovery 6 — testimony not disclosed to defendant — absence of motions for discovery, continuance or recess The trial court did not err in admitting the testimony of prosecution witnesses which had not been disclosed to defendant where the record does not reveal any motions or orders for discovery, and defendant made no request for a continuance or recess to prepare for cross-examination. G.S. <cross_reference>15A-910</cross_reference> (3).

1. Fraud 12 — credibility of defendant — fraudulent intent — issues of fact — summary judgment improper In an action to recover damages suffered by plaintiff because of defendants' allegedly fraudulent scheme to secure money from plaintiff and others, the trial court erred in entering summary judgment for defendants Henderson Belk and Henderson Belk Enterprises since the materials offered in support of and in opposition to the summary judgment motion presented a material issue of fact with respect to defendant Henderson Belk's credibility, and since summary judgment is generally inappropriate where fraudulent intent must be proved, as intent is a state of mind generally within the exclusive knowledge of the party accused and, by necessity, must be proved by circumstantial evidence. 2. Fraud 9 — specific allegations in complaint — sufficiency Plaintiff's complaint contained abundant allegations of specific facts along with general allegations of defendants' state of mind sufficient to state a cause of action for fraud. G.S. <cross_reference>1A-1</cross_reference>, Rule 9 (b). 3. Judgments 36.2, 37.3 — collateral estoppel — issues not same — res judicata — parties not same There was no merit to defendants' contention that adjudication of this cause of action for fraud was precluded by the dismissal of a related action in the U.S. District Court, since the doctrine of collateral estoppel was inapplicable, as the earlier dismissal for failure to prosecute did not purport to determine the existence or non-existence of fraud, and since res judicata was not applicable to preclude the action, as the parties were not the same in the earlier action as in the present action.

1. Rules of Civil Procedure 41.1 — dismissal other than by plaintiff's notice — dismissal without prejudice — "second dismissal" rule inapplicable Though two dismissals of plaintiff's actions based on the same claim were obtained at plaintiff's instance, neither was effected by the plaintiff filing a notice of dismissal as authorized by G.S. <cross_reference>1A-1</cross_reference>, Rule 41 (a)(1)(i), and both were therefore without prejudice so that plaintiff was not prevented by the "second dismissal" rule from bringing a third action on the same claim. 2. Rules of Civil Procedure 41.1; Limitation of Actions 12.1 — voluntary dismissal — action commenced within one year — statute of limitations tolled Plaintiff's action instituted on 9 December 1977 to recover for personal injuries sustained on 8 August 1968 was not barred by the three year statute of limitations where plaintiff brought her first action<page_number>Page 480</page_number> within three years of her injuries, brought her second action within one year of dismissal of her first action, and brought her third action within one year of dismissal of her second action.

1. Adoption 2.2 — abandonment of child — child's health — admissibility of evidence In a proceeding for declaration of abandonment, the trial court did not err in concerning his health, since testimony that the child was in need of medical attention and respondent failed to provide funds or otherwise show concern about his condition tended to be some evidence of willful abandonment. 2. Adoption 2.2 — petition for declaration of abandonment filed — money sent to child — evidence irrelevant In a proceeding for declaration of abandonment, the trial court did not err in excluding evidence of funds sent by respondent to the child's mother after the filing of the petition for a declaration of abandonment, since any funds sent after the filing would be irrelevant to the issue of whether the child had been abandoned as alleged in the petition. 3. Adoption 2.2 — abandonment of child — jury instruction In a proceeding for declaration of abandonment, the trial court's instruction which included a statement that the abandonment must be purposely and deliberately done and which also included a recapitulation of respondent's evidence which showed that he did not have sufficient income to provide child support was proper; furthermore, the court was not required to instruct that the jury, if unsure of the answer to the issue, should consider the best interests of the child and should resolve a conflict of interest between the child and an adult in favor of the child. 4. Adoption 2.2 — abandonment of child — sufficiency of evidence Evidence was sufficient to be submitted to the jury in a proceeding for declaration of abandonment where it tended to show that respondent did not write, call or inquire about his son from March 1976 until June 1977; respondent knew his former wife was planning to remarry and he could have contacted the court to obtain her new address; the wife notified respondent's parents as to her address in December 1976 but did not hear from respondent until June 1977; and respondent failed to provide support for the child during the six months prior to the institution of this action.

1. Parent and Child 10 — complaint under Uniform Reciprocal Enforcement of Support Act — earnings and employer of defendant A complaint under the Uniform Reciprocal Enforcement of Support Act was not deficient because of its failure to state the name of defendant's employer or the amount of his earnings. 2. Parent and Child 10 — complaint under Uniform Reciprocal Enforcement of Support Act — change in circumstances not necessary A complaint for child support under the Uniform Reciprocal Enforcement of Support Act need not allege a substantial change in circumstances since the legislature intended that its enactment of G.S. 52A-21 would provide authority to the courts of this State to apply the Uniform Reciprocal Enforcement of Support Act so as to provide for the support of a minor child independent of and without regard for any other support judgments or whether there had been a change in the circumstances of either the child or its parents. 3. Parent and Child 10 — Uniform Reciprocal Enforcement of Support Act — complaint as evidence The trial court's findings of fact in an action brought under the Uniform Reciprocal Enforcement of Support Act were supported by competent evidence where the complaint was introduced into evidence and each of the court's findings was supported by allegations of fact set forth in the complaint. G.S. 52A-19.<page_number>Page 519</page_number> 4. Parent and Child 7 — duty of father to support child Where the trial court found that defendant was the father of the child for whom support was sought, the court properly concluded that defendant owed a duty of support to the child. 5. Parent and Child 7 — earnings of $1700 — child support of $200 A finding by the trial court that defendant has an income of $1700 per month is sufficient to support the court's conclusion that he has sufficient earning capacity to enable him to support his minor child in an amount of $200 per month although the court also found that defendant has expenses of $1710 per month, since defendant may not avoid his duty to support his minor child simply by spending all of the money he earns but must share his earnings with his minor child to the end that each may have a reasonable amount for support, with the minor child's reasonable needs for food, clothing and shelter taking priority.

1. Criminal Law 102 — prosecutor's comment to judge — no prospective jurors present — no prejudice to defendant There was no merit to defendant's contention that he was deprived of due process by the prosecutor's remark to the trial court that defendant's voluntary manslaughter case was back for retrial after having started out as a first degree murder case, since there was no evidence that any prospective jurors were present or heard the remarks. 2. Criminal Law 114 — jury instructions — witness's credibility — no expression of opinion The trial court did not express an opinion as to the credibility of a witness when he instructed the jury that the evidence tended to show that a prior statement of the witness was inconsistent, and the judge's slight inaccuracy in stating that the evidence tended to show that the<page_number>Page 553</page_number> statement was made at an earlier trial instead of to a police officer should have been called to his attention at the time. 3. Criminal Law 138.6 — sentencing hearing — no continuance Defendant was not entitled to a continuance of his sentencing hearing for the purpose of preparing a record of his "background and standing" since commission of the crime three and one-half years earlier. 4. Criminal Law 138 — severity of sentence — no punishment for appeal That a judgment not recommending defendant for work release was entered after defendant gave notice of his intent to appeal was not sufficient, standing alone, to show that it was entered to punish defendant for exercising that right.

Landlord and Tenant 18 — rental of bus station — strike by bus company employees — refusal of tenant to pay rent during strike — lease properly terminated — landlord's recovery of rent proper Where plaintiff leased a bus station from defendant but refused to pay rent during the four months that defendant suspended operations because of a labor dispute with its employees, the trial court properly granted summary judgment for defendant on plaintiff's claim for damages due to defendant's alleged breach of the lease agreement and properly granted summary judgment for defendant on its counterclaim for rental payments allegedly due and owing, since the lease made no provision for rights and obligations in the event of a strike; the fluctuation of traffic levels through the station would be a normal business risk which plaintiff would assume in undertaking to run his enterprise; and in the absence of any wrongful act on defendant's part in bringing on the strike and causing the reduction of traffic through the bus station, plaintiff's failure to pay the required rentals was not excusable under the lease agreement, particularly since plaintiff continued to operate the station to accommodate the traffic other than from defendant which normally passed through the station as well.

1. Negligence 56 — fall of store customer — subsequent repairs — no consideration on summary judgment motion In an action to recover for injuries sustained by plaintiff when she tripped and fell over a metal strip that formed the edging for electrically operated doors of defendant's store, the admission by defendant in answer to an interrogatory that repairs had been made after the incident would not have been admissible at trial and therefore could not properly be considered on a hearing on a motion for summary judgment. 2. Negligence 56 — fall of store customer — statement by bag boy — no consideration on summary judgment motion In an action to recover for injuries sustained by plaintiff when she tripped over a metal strip and fell at the entrance of defendant's grocery store, a statement by defendant's bag boy that the bolt binding the metal strip to the cement had been stripped, had been sitting loose in the hole and was not tight and that plaintiff herself had not pulled up the bolt would not have been admissible at trial since it did not relate to an act then being done by the bag boy within the scope of his employment, and therefore could not properly be considered at a hearing on a motion for summary judgment. 3. Negligence 57.10 — metal strip at store entrance — fall by customer — summary judgment for defendant improper In an action to recover for injuries sustained by plaintiff when she tripped over a metal strip at the entrance to defendant's store, a genuine issue of material fact was raised by virtue of plaintiff's statement in her deposition filed in response to defendant's summary judgment motion that plaintiff was tripped by a loose metal strip near the door and that she would not have fallen but for the loose strip, and defendant failed to produce evidence that the unsafe condition was not caused by its failure to exercise reasonable care.

1. Narcotics 1.3 — manufacture of controlled substance — intent to distribute In prosecutions under G.S. <cross_reference>90-87</cross_reference> (15) for manufacturing a controlled substance in which the production, propagation, conversion or processing of the controlled substance is involved, the intent of defendant either to distribute the controlled substance or to consume it personally is irrelevant and does not form an element of the offense. However, in those cases in which the activity constituting manufacture is preparation or compounding, the State has the burden of proving that defendant intended to distribute the controlled substance, but in proving such intent the State may rely upon ordinary circumstantial evidence such as the amount of the controlled substance possessed, the nature of its packaging, labeling and storage, and the activities of defendant with reference to the controlled substance. Statements in State v. Baxter, <cross_reference>21 N.C. App. 81</cross_reference> and State v. Whitted, <cross_reference>21 N.C. App. 649</cross_reference>, that G.S. <cross_reference>90-87</cross_reference> (15) defines manufacturing in such a way that it can only mean manufacture with intent to distribute are no longer authoritative. 2. Narcotics 3 — marijuana seeds — presumption of capability to germinate The State is entitled to assume that marijuana seeds are capable of germination until it is shown otherwise, and defendant has the burden of showing that marijuana seeds found in his or her possession have been sterilized or rendered incapable of germination by some process so as to come within the exception contained in G.S. <cross_reference>90-87</cross_reference> (16). 3. Narcotics 4.5 — instructions — misstatement of contention — harmless error In this prosecution for manufacturing marijuana, the trial judge's statement that the State contended that marijuana seeds were packaged and labeled by defendant when there was no evidence to support such statement was harmless error in light of the overwhelming evidence of defendant's guilt of the crime charged.