Volume 43 — North Carolina Court of Appeals Reports

<p>1. Rules of Civil Procedure § 60.2— failure to find subornation of perjury — perjury not fraud upon court — no grounds for new trial</p> <p>Since the evidence would have permitted a finding that defendant father encouraged a witness to give false testimony, but the judge did not so find, G.S. 1A-1, Rule 60(b)(3) would not apply to give plaintiff a new trial; furthermore, perjured testimony is not usually recognized as a fraud upon the court within the meaning of the provision of Rule 60(b) which states that the rule “does not limit the power of a court to entertain an independent action ... to set aside a judgment for a fraud upon the court.”</p> <p>2. Rules of Civil Procedure § 60.1— motion for new trial — timeliness</p> <p>Plaintiffs motion for a new trial was made within a reasonable time pursuant to G.S. 1A-1, Rule 60(b)(6) where plaintiff made a new trial motion eight days after the jury verdict; the motion specified no particular rule but the wording made out the grounds provided by Rule 59(a)(7) and (8); while this motion was pending and less than three months after the jury verdict, plaintiff filed another motion requesting a new trial because of materially harmful perjury on the part of one of defendants’ witnesses; the motion was made within a short time of plaintiffs learning of the perjured testimony; and the fact that plaintiff did not specify the rule under which he was proceeding until eleven months later did not affect the timeliness of his motion.</p> <p>3. Rules of Civil Procedure § 7— grounds for motion —failure to state rule number not fatal</p> <p>Where there is an awareness by the trial judge of the grounds for a motion, the motion is adequately stated for the purposes of Rule 6 of the General Rules of Practice for the Superior and District Courts; failure to state the rule was not fatal in this case where the trial judge expressed his opinion that he was proceeding under G.S. 1A-1, Rule 60(b)(3) and (6) and then granted plaintiff’s motion to amend his original motion to reflect that opinion.</p> <p>4. Rules of Civil Procedure § 15— amendment of motion to allege rule number — no error</p> <p>Defendants could not complain of the amendment of plaintiff’s motion to reflect the procedural rule followed at the hearing on plaintiff’s motion for a new trial, since defendants, in their response to plaintiff’s motion, had raised the failure to state the rule number as a ground for opposition; it was in response to this that the amendment was made; and liberal amendment of pleadings is encouraged by the Rules of Civil Procedure.</p> <p>5. Rules of Civil Procedure § 60— perjury by nonparty witness — new trial granted</p> <p>The trial court did not abuse its discretion in awarding plaintiff a new trial under G.S. 1A-1, Rule 60(b)(6) where the court found that a nonparty witness for defendants committed perjury which resulted in an injustice to plaintiff.</p>

1. Divorce and Alimony 23.3 — child custody and support — issues not determined in divorce action — independent action in another county The matters of child custody and support were not brought to issue and determined in a prior divorce action in Burke County within the purview of G.S. <cross_reference>50-13.5</cross_reference> (f), and the issues of child custody and support could properly be determined in an independent action in another county, where defendant did not file answer in the divorce action and the issues of child custody and support were not presented by the pleadings, and provisions in the divorce decree relating to child custody, visitation and support merely followed in abbreviated form the provisions of a prior separation agreement. 2. Divorce and Alimony 23.3 — child custody and support — acquired jurisdiction by divorce court — waiver Under G.S. <cross_reference>50-13.5</cross_reference>, the district court in Catawba County had jurisdiction of a child custody and support action, and any prior acquired jurisdiction of the district court in Burke County because of its inclusion of custody and support provisions in a divorce decree was waived by the parties, where defendant admitted allegations in plaintiff's complaint relative to the jurisdiction of the court in Catawba County; defendant participated in several days of hearings without objecting to the court's jurisdiction; and defendant waited until 20 days after judgment against her had been signed and her appeal had been noted before making any objection to the Catawba County proceedings.

<p>APPEAL by plaintiff from Wood, Judge. Judgment entered 22 August 1978 in Superior Court, DURHAM County. Heard in the Court of Appeals 30 August 1979.</p> <p>The trial judge entered summary judgment for defendant on the grounds that plaintiff’s action is barred by the three-year statute of limitations found in G.S. 1-52(5). Plaintiff’s medical malpractice action is for damages due to the causation, negligent treatment and misdiagnosis of an infection. The pleadings, affidavits and depositions considered in a light most favorable to plaintiff reveal the following.</p> <p>On 30 March 1970, plaintiff was admitted to Watts Hospital for surgery under the care of defendant, who specializes in gynecology. Defendant performed an abdominal hysterectomy and removed plaintiff’s cervix and uterus. The surgical incision became infected and defendant treated the infection. Plaintiff was released from the hospital under defendant’s care on 7 April 1970. At that time, she was experiencing a vaginal discharge which defendant described as a routine consequence of the surgery which would disappear in three to four weeks. Defendant saw plaintiff for follow-up office examinations on 13 April and 20 April 1970.</p> <p>On 27 April 1970, plaintiff developed rectal problems unrelated to the hysterectomy which were treated by Dr. John M. Cheek, a general surgeon. He performed surgery on 9 May 1970. Plaintiff continued to have a foul, heavy vaginal discharge, abdominal pains and a low-grade fever. Because of this, Dr. Cheek requested defendant examine plaintiff. Defendant found plaintiff to be well healed. Dr. Cheek gave plaintiff a follow-up examination on 19 May and, again because of plaintiff’s pain, fever and discharge, insisted defendant reexamine plaintiff.</p> <p>Defendant saw plaintiff the next day and performed a pelvic examination. He confirmed the discharge but made no culture and diagnosed it as “trichomonas,” a bacterial infection. He prescribed a drug specifically designed to treat this type of infection. Defendant saw plaintiff again on 3 June 1970. He told her she was completely healed. When she complained about the pain, he lost patience with her and told her it was in her mind, that he would no longer see her and that any future complaints should be directed to her regular medical doctor.</p> <p>Through June and July her pain, fever and discharge worsened. She made an appointment with Dr. Cheek on 6 August 1970. Dr. Cheek made a rectal examination and found no problems. He advised plaintiff to see defendant. She related her experience of 3 June with defendant. Dr. Cheek then advised her to see another gynecologist. She then requested that he treat her and he consented. An appointment was made for 13 August. On that date, Dr. Cheek performed a pelvic examination. For the first time, plaintiff was informed that the fever, vaginal discharge and pain were the result of an infection for which he prescribed an antibiotic. He saw her a week later and noted improvement.</p> <p>Plaintiff’s rectal problems occurred in late August. Surgery for this problem was performed on 8 September 1970. At a followup examination on 15 September 1970, Dr. Cheek noticed the vaginal discharge and again advised plaintiff to seek the care of a gynecologist.</p> <p>Plaintiff arranged an appointment for 24 September 1970 with Dr. Clifford C. Byrum, a gynecologist. Dr. Byrum examined plaintiff and informed her she had not healed from defendant’s surgery of 1 April and that she was suffering from a “staph” infection. Dr. Byrum refused to treat her, on ethical grounds, considering her still a patient in defendant’s and Dr. Cheek’s postoperative care. Dr. Byrum did call Dr. Cheek and advised him of his findings. Beginning 28 September 1970, Dr. Cheek attempted unsuccessfully to treat the “staph” infection. The infection was so extensive that complete surgical removal was impossible. The infection and its consequences persisted, and Dr. Cheek turned the case over to a gynecologist and a general surgeon at Duke University Hospital. These physicians operated on plaintiff on 4 December 1970 and supervised a course of treatment that involved weekly anti-staphylococcal injections which continued through 28 February 1973.</p> <p>Plaintiff instituted this action on 10 September 1973 by issuance of a summons upon application and order extending time for filing a complaint until 30 September 1973. The complaint was filed on 28 September 1973.</p>

<p>1. Rules of Civil Procedure § 56.2— summary judgment for party with burden of proof — credibility of affiant —affiant interested party</p> <p>In an action by plaintiff to recover for services rendered in installing, modifying and starting up heating systems for defendant, there was no merit to defendant’s contention that summary judgment for plaintiff was improper because the court granted summary judgment for the party with the burden of proof on the basis of that party’s affidavits, since there were only latent doubts as to the credibility of plaintiff’s affiant and those stemmed from the fact that he was a vice-president of plaintiff; defendant did not produce any affidavits contradicting the statements in plaintiff’s affidavit regarding the account in question, did not point to any specific grounds for impeachment, and did not utilize G.S. 1A-1, Rule 56(f); and the information in plaintiff’s affidavit would necessarily have to come from a witness who was familiar with the books and records of plaintiff, and thus it would be impossible to establish the facts necessary for plaintiff’s claim by a totally disinterested witness.</p> <p>2. Accounts § 1; Rules of Civil Procedure § 56.4— summary judgment — no genuine issue of material fact</p> <p>In an action by plaintiff to recover for services rendered in installing, modifying and starting up heating systems for defendant, there was no merit to defendant’s contention that summary judgment was inappropriate because genuine issues of material fact were raised, since defendant’s answer only generally denied the allegations of the complaint; the affidavit filed by defendant in opposition to plaintiff’s motion related to a prior account with plaintiff for the initial installation of the heating system in question and not to the cost of modification for which plaintiff sought payment; and the statement in defendant’s affidavit that the affiant was “informed, advised and believe” that all the charges incurred with a certain job had been paid was incompetent and was properly not considered by the court in ruling on the summary judgment motion.</p> <p>3. Accounts § 1— charge for starting up heating system — issue as to whether charge paid —summary judgment inappropriate</p> <p>In an action to recover $27 on an account for “starting up” a residential heating system, the trial court erred in entering summary judgment for plaintiff, since defendant’s affidavit stated that this charge was one normally included in the installation price and that the installation had been paid for, thus controverting the plaintiff’s allegation and raising a factual issue as to whether plaintiff was entitled to recover for that charge.</p>

<p>1. Counties § 9; Registers of Deeds § 1— operation of register of deeds office — immunity of county from suit for negligence</p> <p>The operation and maintenance of a register of deeds office in a county courthouse is a governmental function for which the county enjoys immunity from suit for negligence.</p> <p>2. Counties § 9; Registers of Deeds § 1— operation of register of deeds office-immunity of register of deeds from suit for negligence</p> <p>A register of deeds is protected from tort liability by governmental immunity to the same extent as the county when he or she undertakes the performance of his or her official governmental duties. Therefore, a register of deeds was not subject to personal liability for the death of a person who was killed in a fall down a stairway in the register of deeds office while using records kept in that office.</p>

APPEAL by defendant from Lewis, Judge. Judgment entered 22 September 1978 in Superior Court, ALAMANCE County. Heard in the Court of Appeals on 28 August 1979. Defendant was tried on a bill of indictment proper in form for the second degree murder of William Samuel Abner. Upon his plea of not guilty, the State offered evidence which tended to show that, on the night of 13 June 1974, defendant intentionally shot Abner in the back as Abner walked away from defendant.

<p>APPEAL by defendants from Davis, Judge. Judgment entered 28 August 1978 in District Court, WILKES County. Heard in the Court of Appeals 27 August 1979.</p> <p>Plaintiff seeks a declaratory judgment determining the rights of the parties to certain real property in Wilkes County. Plaintiff alleges the property was conveyed by Myrtle Steele Mitchell, widow, to Ivey Steele on 2 January 1945, the deed being recorded in Book 218, page 623, Office of the Register of Deeds, Wilkes County. Ivey was then married to Carrie Steele. On 23 January 1957, Myrtle Steele Mitchell conveyed the property to Ivey Steele and wife, Carrie Steele, deed being recorded in Book 393, page 395, Wilkes County Registry. Ivey died intestate prior to the commencement of this action and was survived by his wife, Carrie Steele, three children, Evelyn Steele Taylor, Charles R. Steele, Raymond Steele, and the lineal issue of Ivey Steele, Jr. Evelyn Steele Taylor and Charles R. Steele have conveyed any interest they had in the property to plaintiff.</p> <p>Ivey Steele, Jr., who predeceased his father, died intestate, survived by his wife, Lois Steele, and four children: Floyd Steele (who has conveyed to plaintiff any interest he had in the property), Glenda Pierce, Jean Miles, and Bruce Steele.</p> <p>Plaintiff contends Carrie Steele acquired complete title to the property by right of survivorship under the deed to Ivey Steele and wife, Carrie Steele, recorded in Book 393, page 395. Carrie Steele conveyed the property to plaintiff after the death of Ivey Steele, but the record does not contain this deed or the date of its recordation.</p> <p>Defendants answered, denying plaintiff’s title to the property, and alleging that Myrtle Steele Mitchell had no interest in the property to convey when she executed the second deed in 1957. There had been no reconveyance to her after the 1945 deed. Defendants admit that at the death of Ivey Steele, Carrie Steele owned a one-third undivided interest in the property and that each of Ivey Steele’s children owned a one-sixth interest.</p> <p>Both plaintiff and defendants filed motions for summary judgment. Plaintiff introduced affidavits tending to show that Carrie Steele and her husband intended to hold the property as tenants by the entirety and that when it was discovered in 1957 that Carrie’s name was not on the deed, her husband, Ivey Steele, arranged for a lawyer to prepare another deed and got Myrtle Steele Mitchell to execute it. Myrtle Steele Mitchell’s affidavit states Carrie’s name was left off the deed by mistake and the second deed was executed at the instance of Ivey Steele in an effort to correct it.</p> <p>Defendants moved to amend their answer to allege the defense of the three years statute of limitations. N.C. Gen. Stat. 1-52(9). The record does not disclose any ruling by the trial court on this motion.</p> <p>The court denied defendants’ motion for summary judgment and granted plaintiff’s motion for summary judgment, adjudicating plaintiff the sole owner of the property.</p>

APPEAL by defendant from McLelland, Judge. Judgments entered 11 October 1978 in Superior Court, ALAMANCE County. Heard in the Court of Appeals 22 August 1979. Defendant was tried upon charges of assault with intent to commit rape and felonious breaking or entering. The jury found defendant guilty of the assault charge and of non-felonious breaking or entering. Judgments of imprisonment were entered and defendant appealed.

<p>Physicians, Surgeons, and Allied Professions § 11; Libel § 11— psychiatrist’s report in judicial proceeding — absolute privilege — no malpractice or libel</p> <p>Where defendant psychiatrist interviewed plaintiff, his estranged wife, and the couple’s daughter for the purpose of rendering a report to the court as to the custody of the daughter, defendant conducted his interviews and made his report as a witness in the due course of a judicial proceeding; therefore, his report was absolutely privileged and could not be made the basis of a cause of action for either medical malpractice or libel.</p>

<p>APPEAL by plaintiff from Kivett, Judge. Orders entered 21 August and 23 August 1978 in Superior Court, GUILFORD County. Heard in the Court of Appeals 22 August 1979.</p> <p>Plaintiff initiated an action against defendant insurer (Universal) on 21 November 1977. Plaintiff also named as defendants the Commissioner of Insurance and the Commissioner of Motor Vehicles for the state of North Carolina, but neither is involved in this appeal. The thrust of plaintiff’s complaint was that in renewing plaintiff’s insurance policy for the period of 12 September 1977 to 12 September 1978 Universal showed a “callous, wilful, wanton, and reckless indifference, and total disregard for plaintiffs rights and well-being.” Plaintiff specifically alleged that Universal totally ignored his efforts to find out why the premium for a policy covering his Yamaha motorcycle had increased by $68; that Universal attempted to harass, embarrass and punish plaintiff for questioning the rate increase, by sending to N.C. Department of Motor Vehicles a “Notice of Termination of Liability Insurance” (FS-4), knowing said notice to be wholly false and untrue; and that Universal issued a false insurance policy to plaintiff since it contained a statement of waiver of Uninsured Motorist Coverage which Universal knew to be false. Plaintiff demanded compensatory damages of $4,000 and punitive damages of $40,000. Letters exchanged between plaintiff and Universal were attached as exhibits.</p> <p>Universal answered the complaint, denying plaintiff’s allegations and specifically alleging that an inadvertent clerical error was responsible for the FS-4 notice being sent and that it endeavored to explain to plaintiff the reasons for the change in premium. Plaintiff submitted a request for admissions and written interrogatories to Universal; Universal then took plaintiff’s deposition. Plaintiff filed a motion for leave to amend his complaint, after which both parties moved for summary judgment. Universal submitted an affidavit by its regional sales manager to support its motion; plaintiff submitted his own affidavit. The court, after hearing arguments on the motions for summary judgment and leave to amend, denied plaintiff’s motions, granted Universal’s motion, and dismissed the case. Plaintiff appeals from these orders.</p>

<p>APPEAL by defendant from Cantrell, Judge. Judgment entered 6 October 1978 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 28 August 1979.</p> <p>Plaintiff alleges that the parties are divorced, and that defendant has failed to make payments due under their separation agreement. Defendant admits that he has paid $900 less than the agreement requires, but he seeks credit of one-fourth of the agreed-upon child support payments due to the fact that one of the children has been living with him rather than with the plaintiff. Defendant admits the genuineness of the separation agreement, which provides for monthly payments of $265 to the plaintiff and $450 child support.</p> <p>Plaintiff moved for summary judgment. In opposition to the motion defendant filed his affidavit, stating that it was the intent of the parties that he make payments to plaintiff only until she was able to support herself, which she is now able to do. In addition, he indicated that the parties’ oldest son Mike had come to live with him at plaintiff’s request, and that he had been able to support Mike only by reducing the total child support payments to plaintiff. Recently a second son had come to live with him, and his daughter had expressed a desire to do so as well.</p> <p>Plaintiff’s motion for summary judgment was granted and defendant appeals.</p>

APPEAL by defendants from Braswell, Judge. Judgment entered 30 May 1978 in Superior Court, CUMBERLAND County. Heard in the Court of Appeals 21 August 1979. In December 1974, Manchester Woodyards, Inc. (Manchester) was guarantor on a note for the purchase price of certain equipment owned by one Edward Reddick. Defendant R. D. Morgan as agent for Manchester obtained fire insurance on the equipment.

APPEAL by plaintiff from Grant, Judge. Judgment entered 16 June 1978 in District Court, CUMBERLAND County. Heard in the Court of Appeals 21 August 1979. On 3 November 1978, plaintiff husband instituted this action against defendant wife seeking an absolute divorce. Defendant filed an answer and counterclaim. Before trial it was stipulated that defendant was a dependent spouse and entitled to alimony.

<p>APPEAL by plaintiff from Fountain, Judge. Judgment entered 16 October 1978 in Superior Court, BUNCOMBE County. Heard in the Court of Appeals 23 August 1979.</p> <p>This is a civil action which involves the interpretation of a deed. Charles Cauble, by deed recorded 10 November 1948, made a conveyance to Scott Boone. The granting clause said:</p> <p>“[P]arty of the first part ... do give, grant, bargain, sell, convey and confirm unto the said party of the second part, his heirs and assigns forever, all the following described real estate: Right of way. A certain piece, parcel or lot of land, situate, lying and being in Fair view Township, Buncombe and bounded and more particularly described as follows:</p> <p>BEGINNING at at [sic] stake at the Charlotte Highway and runs N 50-1/2 E 23.6 poles with the Charles E. Cauble line to a stake; thence N 25-1/2 E 20 feet with the Cauble line; and 12 feet in width to be allowed as right of way to the highway.”</p> <p>Boone subsequently conveyed the twelve-foot strip and a larger parcel of land to George W. Crawford and wife, Geneva Crawford, and in 1968, George Crawford conveyed both parcels to Geneva Crawford.</p> <p>Thereafter, Charles Cauble made other conveyances of the same right-of-way to all the defendants except Steve Wilson and his wife, Beulah Wilson.</p> <p>Several issues were raised by the pleadings. The parties stipulated that the determination of all issues would be continued except the question of what interest was conveyed by the deed recorded 10 November 1948, which issue was tried on an agreed statement of facts.</p> <p>Upon the agreed statement of facts, the superior court concluded as a matter of law that plaintiff was the owner of an easement of right-of-way in the property described in the deed to Boone. From this judgment, plaintiff has appealed.</p>

<p>APPEAL by defendant from Thornburg, Judge. Judgment entered 19 September 1978 in Superior Court, HAYWOOD County. Heard in the Court of Appeals 30 August 1979.</p> <p>The facts are stipulated by the parties: Plaintiff contracted with Norman’s Mechanical Contractors, Inc. (Contractor) for Contractor to perform plumbing work in the Central Elementary School. Plaintiff required a performance bond, and one was executed by Contractor and defendant. Included in the plumbing work performed by Contractor were certain repairs and alterations to a water cooler and the lines leading to it. In performing this work, Contractor installed a defective pressure reducing valve. As a direct result of the installation of the defective valve, the supply tube to the water cooler blew out of a valve fitting, causing water damage to a newly-constructed wooden gym floor. The cost of repairing the defective pressure valve and the supply line was approximately $500, which was paid by defendant. The cost of repairing the water-damaged wood floor was $4,546. Defendant denied that the terms of the bond required it to pay for these repairs. Contractor’s general liability policy, in effect while the work was in progress, had been cancelled some ten months prior to the blow out. Plaintiff was advised of this cancellation nine days subsequent to the blow out. Prior to the blow out, Contractor was adjudicated a bankrupt.</p> <p>The trial court held that defendant must pay for the repairs to the damaged wood floor. Defendant appeals.</p>

<p>APPEAL by defendant from Bulwinkle, Judge. Order entered 19 July 1978 in District Court, GASTON County. Heard in the Court of Appeals 21 August 1979.</p> <p>The parties were divorced in Florida in 1965, and alimony of $600 per month was awarded to plaintiff. In November 1977 plaintiff brought suit against defendant in the Superior Court of Gaston County to enforce an alimony and child support arrearage judgment given by a Florida court. Defendant counterclaimed for a modification of the amount of prospective alimony, as permitted by G.S. 5046.9(c).</p> <p>Subsequently, defendant moved to transfer the action to District Court, pursuant to G.S. 7A-244. The court found that the plaintiff’s action did not come within G.S. 7A-244 (actions for annulment, divorce, alimony, child support, and child custody), but that defendant’s counterclaim did. Accordingly, the counterclaim was severed and heard in the District Court. The trial court found a change in circumstances sufficient to justify the reduction of alimony to $300 per month, but conditioned the reduction upon defendant’s payment of his alimony arrearages. From this judgment defendant appeals.</p>

<p>Prostitution § 2— being in public place to solicit act of prostitution — city ordinance-insufficiency of warrants</p> <p>Warrants were insufficient to charge defendants with violation of a city ordinance making it unlawful for any person to be in a public place for the purpose of soliciting or procuring another to commit an act of prostitution where they faded to allege where the purported offenses occurred or whether they were committed in places which were public places, and failed to describe conduct proscribed by the ordinance.</p>

1. Wills 22.1; Evidence 11.6 — caveat proceeding — testimony by preparer of will — mental capacity Testimony by the attorney who prepared the paper writing in question in a caveat proceeding regarding transactions and communications with the deceased was properly admitted for the reasons that (1) he was not an "interested witness" within the meaning of G.S. <cross_reference>8-51</cross_reference> and (2) his testimony was not hearsay because it was offered to show the basis of his opinion that testator had the mental capacity to execute a will. 2. Wills 19 — question raised by caveator — further explanation by witness proper In a caveat proceeding where caveators first raised a question concerning a "no visitors" sign on deceased's hospital door and where a witness was allowed, without objection, to testify on cross-examination that the sign was put there at the deceased's request, the trial court did not err in permitting the witness to explain how she reached this opinion. 3. Wills 19; Evidence 11.3 — caveat proceeding — testimony about deceased's conduct — independent knowledge of witness The trial court in a caveat proceeding did not err in allowing a woman who lived with deceased and had his children but who was not his wife to testify that deceased gave "accurate" responses to questions at the social security office regarding the preparation of an affidavit legitimating the witness's children, since the witness stated that the responses were accurate according to her personal knowledge, and G.S. <cross_reference>8-51</cross_reference> does not prevent a witness from testifying as to the acts and conduct of deceased where the witness is merely an observer and is testifying to facts based upon independent knowledge. 4. Wills 23 — caveat proceeding — failure to give limiting instruction — no request No prejudicial error was committed by the trial court in a caveat proceeding in failing to give a limiting instruction with respect to testimony of witnesses who testified that, in their opinion, deceased had testamentary capacity, since no request for such instruction was made. 5. Wills 23 — caveat proceeding — evidence of transactions and communications with deceased — limiting instruction proper The trial court in a caveat proceeding did not err in giving a limiting instruction which provided that testimony by the heirs of deceased concerning personal transactions and communications with deceased should be considered only for the purpose of showing the basis of their opinions with respect to deceased's mental capacity, and such instruction did not allow the jury to give unlimited consideration to the testimony of the attorney who prepared the will<page_number>Page 124</page_number> or to that of the designated executrix under the will, nor could the jury take the instruction to mean that the rule did not apply to the witness who lived with deceased and bore his children, but was not married to him. 6. Wills 23 — mental condition of testator — no evidence of undue influence — limiting instruction proper The trial court's instructions limiting certain testimony of caveator's witnesses regarding conversations with the deceased to the issue of mental capacity were proper, since such testimony concerned deceased's mental condition only; there was no independent evidence of undue influence; and the court's use of the expression "mental capacity" properly precluded the jury from considering the testimony on the issue of undue influence. 7. Wills 13 — caveat proceeding — propounders entitled to open and close jury argument The trial court in a caveat proceeding did not err in allowing propounders to open and close the arguments to the jury.

1. Rules of Civil Procedure 56 — motion for summary judgment rather than default judgment In an action in which defendant failed to file an answer, plaintiff could properly move for summary judgment under Rule 56 rather than for judgment by default under Rule 55. 2. Bastards 10 — summary judgment adjudicating paternity and ordering support payments in an action to establish paternity under G.S. <cross_reference>49-14</cross_reference> and to obtain child support pursuant to G.S. <cross_reference>110-128</cross_reference> et seq., the trial court properly entered summary judgment for plaintiff adjudicating defendant to be the father of plaintiff's illegitimate child and ordering defendant to pay $80.00 per month for support of the child where defendant did not file an answer to the complaint and thus admitted allegations that he is the father of the child, that he is a responsible parent within the meaning of G.S. <cross_reference>110-139</cross_reference>, and that he is able-bodied and capable of supporting a minor child; defendant did not file any materials in opposition to plaintiff's motion; plaintiff submitted an affidavit of defendant's employer that defendant's disposable income was $130.00 per week; and plaintiff submitted an affidavit from the Mecklenburg County Department of Social Services that plaintiff is receiving $80.00 per month under the Aid to Families with Dependent Children program for support of the child and that this amount is based upon the Department's evaluation of the child's needs.<page_number>Page 135</page_number> 3. Jury 1.3 — waiver of jury trial Defendant waived his right to a jury trial on the issue of damages, the only issue left unadmitted by his failure to file answer, by failing to file a timely demand for a jury trial. 4. Rules of Civil Procedure 60.1 — motion for relief from judgment — authority of trial court to hear while appeal pending The trial court may consider a Rule 60 (b) motion for relief from a judgment while an appeal from the judgment is pending for the limited purpose of indicating, by a proper entry in the record, how it would be inclined to rule on the motion were the appeal not pending. At the time the motion is made in the lower court the movant should notify the appellate court so that it many delay consideration of the appeal until the trial court has considered the Rule 60 (b) motion. If the trial court indicates that it is inclined to rule in favor of the motion, the movant should move that the appellate court remand to the trial court for judgment on the motion. An indication by the trial court that it would deny the motion would be binding on that court and the movant could then request appellate court review of the lower court's action.

1. Divorce and Alimony 5 — defense of recrimination no longer available The defense of recrimination cannot be asserted in actions for absolute divorce based on separation of the parties instituted after 31 July 1977 even if alleged acts of adultery by plaintiff occurred after the separation of the parties.<page_number>Page 297</page_number> 2. Divorce and Alimony 5 — fraud in procurement of separation agreement — recrimination Defendant's allegations that plaintiff procured a separation agreement from her by fraudulently misrepresenting that he had not been seeing another woman during their marriage did not state a counterclaim for alimony or child custody or support, which may be asserted in an action for absolute divorce, but fell within the doctrine of recrimination, which may not be asserted in such an action. 3. Husband and Wife 24; Parent and Child 4.1 — alienation of affections of child — no right of action One parent may not recover from the other parent for alienating the affections of their child.

Appeal and Error 6.2 — denial of summary judgment — no immediate appeal Ordinarily, the denial of a motion for summary judgment is not immediately appealable because it affects no substantial right, the movant being allowed to preserve his exception to the denial of the motion for consideration on appeal from the final judgment.

Judgments 21 — amendment of consent judgment — legal consequence different from what contemplated The fact that the legal consequence of a consent judgment for alimony was different than what the parties contemplated is not a sufficient reason to amend the consent judgment without the agreement of both parties.

Constitutional Law 40; Parent and Child 1 — proceeding to terminate parental rights — appointment of counsel for indigent not required The appointment of counsel to represent an indigent respondent in a proceeding to terminate respondent's parental rights is not constitutionally required.

1. Criminal Law 15.1 — motion for change of venue — community ill will The trial court did not err in the denial of defendant's motion for a change of venue of his involuntary manslaughter trial where defendant presented nothing more than an allegation of general ill will in the community against him because of the incident in question.<page_number>Page 601</page_number> 2. Criminal Law 92.1 — involuntary manslaughter — refusal to sever trials of automobile driver and owner The trial court in an involuntary manslaughter prosecution did not err in refusing to sever defendant automobile owner's trial from that of the codefendant driver on the ground that he would be prevented from using the driver's testimony at a joint trial because additional evidence admissible against the driver in such a joint trial would cause a feeling of ill will toward the driver, since the State would have the right to draw out the same facts on cross-examination in a separate trial that defendant contends would prejudice him in a joint trial. 3. Automobiles 110 — death by motor vehicle — intoxicated driver — responsibility of owner When a death results from the operation of a motor vehicle by an intoxicated person not the owner of that vehicle, the owner who is present in the vehicle and who knowingly permits the intoxicated driver to operate the vehicle is as guilty as the intoxicated driver. 4. Automobiles 113.1 — involuntary manslaughter — intoxicated driver — owner's guilt as aider and abettor The trial court properly submitted an issue of defendant automobile owner's guilt of involuntary manslaughter as an aider and abettor where the evidence tended to show that defendant's automobile, while driven by the codefendant, struck a patrol car which was sitting on the shoulder of the road and then struck and killed two young men who were standing beside the patrol car; defendant had stopped the automobile in order to allow the codefendant to drive and was riding in the back seat at the time of the accident; defendant knew the codefendant had had at least two drinks of vodka and one beer; and a test administered to the codefendant driver more than an hour after the accident showed him to have a blood alcohol content of .17.

1. Automobiles 59.1 — entering highway — stalled vehicle — speeding oncoming vehicle — sufficiency of evidence of negligence In an action to recover for injuries sustained in an automobile accident, evidence that plaintiff's truck was stalled in an intersection for 8 to 10 seconds before it was hit by defendant's van, testimony that the gearshift lever of plaintiff's truck was in park immediately after the accident, and testimony that defendant was speeding was competent evidence of actionable negligence, and the trial court did not err in denying a directed verdict for defendant. 2. Automobiles 89.1 — intersection accident — last clear chance — sufficiency of evidence Evidence was sufficient to submit an issue of last clear chance to the jury where it tended to show that defendant's van was some 1500 feet away when plaintiff's truck began to cross the intersection; there were no obstructions to defendant's view of the truck; plaintiff was stalled in<page_number>Page 685</page_number> defendant's lane for 8 to 10 seconds before the collision; and there was no traffic coming toward defendant in the other lane. 3. Automobiles 90.15 — last clear chance — instructions adequate The trial court's omission of the phrase "from which he could not remove himself by the exercise of reasonable care" in the reiteration of the elements of the doctrine of last clear chance, after a correct and complete enumeration of the elements initially, was not sufficiently prejudicial to require a new trial.

Contempt of Court 3.1 — motion denied by trial court — action immediately brought in S.C. — indirect contempt The trial court properly determined that the individual defendant was in contempt of court when the court had denied defendant's motion that the receiver of defendant corporation be required to notify attorneys in S.C. that the individual defendant was the owner of commissions on the sale of real estate which had been listed by defendant corporation, and the individual defendant immediately went outside the jurisdiction of the N.C. courts and brought an action in the S.C. courts against the S.C. attorneys claiming the commissions, thereby interfering with and failing to cooperate fully with the receiver in the performance of his duties as required by the court's earlier consent judgment.<page_number>Page 722</page_number>