Volume 44 — North Carolina Court of Appeals Reports

1. Adoption 5; Constitutional Law 26 — foreign adoption decree — full faith and credit Absent fraud in the procurement, where jurisdictional requirements were met, duly authenticated adoption decrees from Missouri were entitled to recognition by the courts of N.C. under the full faith and credit clause of the U.S. Constitution. 2. Descent and Distribution 5 — right of adopted child to inherit G.S. 48-23 gives an adopted person the right to succeed to the estate of the adoptive parent upon intestacy and to take under the will of the adoptive parent if the parent — so provides, and G.S. 48-23(3) applies to orders of adoption from other states as well as those under N.C. law. 3. Wills 48 — adopted children as descendants <block_quote> The term "descendant," as used in the will in question, included the adopted children of testatrix' nephew.</block_quote> 4. Wills 48 — adopted children as descendants — express limitation required for exclusion Absent an express limitation which specifically refers to the bloodline of the testator to the exclusion of adopted persons, the terms delineated in G.S. 48-23(3) will be deemed to include any adopted person; therefore, the adopted children of testatrix' nephew were included with those normally taking as<page_number>Page 96</page_number> "descendants" under the will, since there was no expression of an intent to exclude adopted children within the terms of the will. 5. Wills 48 — adopted children — adoption laws changed after will made There was no merit to appellants' contention that adopted children of testatrix nephew should be excluded from taking under the will because, under the laws of adoption as they existed at the time of the drafting of the will in question, the adopted children would not have been allowed to take and that application of G.S. 48-23(3) would contradict the supposed knowledge and intent of the testatrix. 6. Wills 35.2, 48 — interests given to "descendants" — contingent interest-adopted children as descendants Application of G.S. 48-23(3) to the terms of the will in the case did not unconstitutionally and artificially enlarge the class of beneficiaries entitled to take under the will, since the interests given to the "descendants" by the will were conditioned upon their surviving the income beneficiary under whom they were to take; this condition of survivorship made the remainder contingent; and the interests created by the will were therefore not unconstitutionally divested by inclusion of the adopted children.

1. Rules of Civil Procedure 7 — pleading not counterclaim — reply not required Plaintiff's failure to file a reply to defendant's purported "counterclaim" did not operate as an admission of the facts alleged therein where defendant's pleading did nothing more than raise an affirmative defense to plaintiff's cause of action to which a reply was neither required nor permitted by G.S. <cross_reference>1A-1</cross_reference>, Rule 7(a). G.S. <cross_reference>1A-1</cross_reference>, Rule 8(c) and (d). 2. Insurance 37 — action on life insurance policy — prima facie case Defendant insurer's admission in the pleadings of execution and delivery of a policy of credit life insurance, payment of premium, and death of the insured established plaintiff's prima facie case in an action on the policy, and the burden was then on defendant to prove its allegations of false and material representations justifying its refusal to pay benefits. 3. Rules of Civil Procedure 9 — action by administrator — failure to allege authority — amendment at close of evidence Plaintiff administrator's failure to make an affirmative averment in the complaint showing his capacity and authority to sue as required by G.S. <cross_reference>1A-1</cross_reference>, Rule 9(a) was cured by amendment at the close of the evidence in the trial. 4. Insurance 2; Principal and Agent 5.2 — admission of agency in interrogatories — evidence of agent's acts Where defendant insurer admitted in its answer to interrogatories that a car dealer had authority to enroll eligible debtors under a master group policy of credit life insurance, defendant cannot complain of evidence of the car dealer's role as defendant's agent in the execution of the credit life insurance policy issued to the insured. 5. Insurance 21 — prior credit life insurance coverage — irrelevancy to incontestability clause In an action to recover under a policy of credit life insurance, evidence of prior, expired policies of credit life insurance issued by defendant to the decedent were not admissible to establish that defendant had continuously covered decedent for a period exceeding two years and was therefore barred by the policy's incontestability clause from raising the defense of misrepresentation.<page_number>Page 225</page_number> 6. Insurance 18.1 — credit life insurance — misrepresentations as to medical treatment — instructions not presented by evidence In an action on a credit life insurance policy in which defendant denied liability on the ground of misrepresentations by insured concerning medical treatment within a year prior to the application, the court's instruction that twelve months may reasonably be understood "to mean approximately twelve months" was not presented by the evidence and was thus erroneous where defendant's uncontradicted evidence showed that insured received the medical treatment within six months of the date of his application, a time span which could not reasonably be equated with "approximately twelve months." Similarly, the court's instruction that a representation on an application for insurance that the applicant is in good health does not require that he be in perfect health, and that a representation that the applicant does not suffer from a particular disease is not necessarily false merely because the applicant does not have that disease was erroneous as not being presented by the evidence since the provision in question referred to whether the applicant had been treated for, or advised to have treatment for, certain listed diseases, not whether he knew the state of his own health or of his affliction with a particular disease. 7. Insurance 18.1 — credit life insurance — misrepresentation of medical treatment — instruction on materiality In an action on a credit life insurance policy, the trial court erred in instructing the jury that a misrepresentation in an application for an insurance policy will prevent recovery on the policy if it is "false and material" where the alleged misrepresentation related to medical treatment and was thus material as a matter of law.

Criminal Law 122.2 — jury' failure to reach verdict — instructions improper Where the jury foreman advised the court that in his opinion the jury could not reach a decision, the trial court erred in instructing the jurors that, if they did not agree upon a verdict, another jury might be called upon to try the case, that the State and defendant had a tremendous amount of time and money invested in the case, and that retrial involved a duplication of all the time and expense. G.S. <cross_reference>15A-1235</cross_reference>.

1. Evidence 18 — experimental evidence — circumstances not shown to be substantially similar In an action to recover for injuries suffered by plaintiff when his motorcycle struck defendant's unlighted boxcar at a grade crossing at night, the trial court properly excluded evidence of an experiment conducted by plaintiff's witness relating to the visibility of a train at the crossing at night where there was no evidence that the experiment was conducted under the same atmospheric conditions as existed at the time of the accident and no evidence as to the speed the witness was traveling when he conducted the experiment.<page_number>Page 296</page_number> 2. Evidence 34.1, 35 — statements by defendant's employee — res gestae mission against interest A statement by defendant railroad's brakeman that he ran as hard as he could but did not get there in time to stop plaintiff, made several minutes after plaintiff's motorcycle struck defendant's train at a grade crossing, was not admissible as part of the res gestae or as a declaration against the interest of defendant. 3. Railroads 5.8 — grade crossing accident — contributory negligence of motorcyclist In an action to recover for injuries suffered by plaintiff when his motorcycle struck defendant railroad's unlighted boxcar at a grade crossing at night, plaintiff's evidence disclosed that he was contributorily negligent as a matter of law in failing to see the boxcar where it showed that the weather was clean and dry; there were no obstructions to block plaintiff's view; he was familiar with the location of the crossing; and the motorcycle headlights revealed an object 250 feet ahead of plaintiff, but he did not see the boxcar until he was 30 to 35 feet from it.

1. Constitutional Law 50 — five years between offenses and indictments — no denial of speedy trial Defendant in an embezzlement prosecution was not denied his right to a speedy trial by the lapse of five years from the time of the alleged offenses to the time indictments were handed down where the evidence tended to show that the length of the delay because of defendant's own assurances that he would repay was not a period of five years but really little more than a year; defendant's own promise of repayment along with a heavy SBI caseload and the complicated nature of this case caused the delay; defendant's own assurances constituted a waiver of most of the time span when an indictment could have been brought; and no prejudice from the delay was shown by defendant. 2. Embezzlement 1 — elements of offense Embezzlement in violation of G.S. <cross_reference>14-90</cross_reference> is made up of four elements: (1) defendant must be the agent of the prosecutor; (2) by terms of his employment, office or other fiduciary relationship he was free to receive the property of his principal; (3) he received the property in the course of his employment, office or other fiduciary relationship; and (4) knowing it was not his own, he converted it to his own use or fraudulently misapplied it. 3. Embezzlement 6 — defendant as fiduciary Defendant in an embezzlement case was in a fiduciary relationship where he was a promoter of a limited partnership in which the prosecutors invested; behind a corporate front, he was in charge of investing the money in real property; he received and deposited their money in the account of a corporation of which he was secretary-treasurer and which he had designated to be general partner for the limited partnership; and the money was not invested as promised and was not returned to those who invested it. 4. Embezzlement 6.1 — fiduciary — definition in instructions proper The trial court in a prosecution for embezzlement in violation of G.S. <cross_reference>14-90</cross_reference> properly defined a fiduciary as "a person having a duty created by his undertaking to act primarily for another's benefit."<page_number>Page 302</page_number>

1. Divorce and Alimony 24; Parent and Child 7 — support of child — duties of father and mother Under G.S. <cross_reference>50-13.4</cross_reference>(b), the father has the primary duty to provide support for his minor children, but the mother may also have a duty of contribution upon proof of proper circumstances.<page_number>Page 328</page_number> 2. Divorce and Alimony 24 — child support — payment by mother to father The trial court did not err in determining that plaintiff father is entitled to an award of $180.00 per month from defendant mother for the partial support of their children where plaintiff father was given custody of the children and the evidence supported the court's findings that plaintiff father is in need of financial assistance from defendant mother for the partial support of the children and that she is regularly employed and capable of providing it. 3. Divorce and Alimony 24.2 — child support — effect of separation agreement A provision in a contract between parents relating to support of their children is only presumptively just and reasonable and is subject to change by the court upon a showing of need.

Rules of Civil Procedure 4, 15 — service of process on corporation defective — amendment of complaint to substitute defendant improper Complaint and summons directed to defendant named as "MICHIGAN TOOL COMPANY, A Division of Ex-Cell-O Corporation" was not service on the entity Ex-Cell-O Corporation, even if the complaint and summons reached the hands of someone obligated to receive service in behalf of Ex-Cell-O, since Ex-Cell-O was not a named party defendant; and plaintiff could not amend his complaint, claiming that the words, MICHIGAN TOOL COMPANY, A Division Of, were a misnomer or mere surplusage since such amendment would, in effect, substitute a party defendant that had never been properly served.

1. Appeal and Error 16 — abandonment of appeal — jurisdiction of trial court Defendant's notice of appeal from the trial court's order which vacated an earlier order did not divest the trial court of jurisdiction to enter further orders in the cause, since defendant's failure to perfect his appeal by the time judgment was entered almost three months later constituted an abandonment which reinvested the court with jurisdiction to render further orders in the cause. 2. Appeal and Error 6.2 — interlocutory order affecting substantial right — appealability An order granting plaintiff's claim for $4225 in alimony and child support arrearages and granting full faith and credit to a New York decree imposing a continuing support obligation affected a substantial right of defendant and was reviewable by virtue of G.S. <cross_reference>1-277</cross_reference> and G.S. <cross_reference>7A-27</cross_reference>(d), even though the trial court's order did not determine all the issues raised in the action. 3. Divorce and Alimony 21.8, 26.1 — foreign decree — defect in authentication waived In an action to enforce a New York decree awarding child support and alimony to plaintiff, defendant waived any defect in authentication of the foreign judgment where plaintiff attached a copy of it to her complaint, and defendant, in his answer, admitted that the attached order was filed in the New York action. 4. Divorce and Alimony 21.8, 26.1 — foreign alimony and child support order — defendant given notice and opportunity to be heard There was no merit to defendant's contention that a New York court issued an alimony and child support decree without giving him notice and an opportunity to be heard on the matter, thereby depriving him of his constitutional right to procedural due process, since defendant was personally served with process, filed pleadings and supporting documents in the New York court, and was given a reasonable opportunity to be heard. 5. Divorce and Alimony 21.8, 26.1 — foreign alimony and child support order — defendant in contempt — no full faith and credit The portion of a New York alimony and child support decree which adjudged defendant in contempt and ordered his incarceration was properly denied full faith and credit recognition by the N.C. district court. 6. Divorce and Alimony 21.8 — foreign alimony order — constitutionality of alimony statute — question improperly raised In an action to enforce a New York decree awarding child support and alimony to plaintiff, defendant could not properly raise a question as to the constitutionality of the New York statute providing for awards of<page_number>Page 382</page_number> alimony and counsel fees, since the question was not raised in any of the pleadings or other papers filed in the New York action, nor was there any ruling by the New York appellate courts on the issue. 7. Divorce and Alimony 21.8, 26.1 — alimony and child support — foreign decree — full faith and credit — determination without evidentiary hearing In an action to recover arrearages due under an alimony and child support decree entered in New York, the trial court did not err in denying defendant's oral motion for evidentiary hearings, since the court had before it the pleadings of the N.C. and N.Y. courts and memoranda of law submitted by both parties; the issue of full faith and credit enforcement of the N.Y. judgment for arrearages presented no question of fact; and the court acted properly in resolving that issue as a matter of law.

1. Insurance 127 — provision against other insurance — no ambiguity There was no merit to plaintiffs' contention that the "other insurance" forfeiture provisions in an insurance policy covering their farm dwelling were void for ambiguity, since the language of the policy was plain and clear and prohibited the policyholder from obtaining other insurance on the dwelling only; other provisions would permit the policyholder to take out insurance on other property covered by the policy if a written endorsement to that effect was added; and such other insurance, approved by endorsement, would be subject to the pro-rata liability provision of the policy. 2. Insurance 128 — other insurance provision — no waiver There was no merit to plaintiffs' argument that acceptance of premiums by defendant with knowledge of the existence of other insurance constituted a waiver of the "other insurance" forfeiture clause, since defendant's agent who sold plaintiffs the insurance informed them of the "other insurance" provision and its consequences; there were no facts or circumstances from which knowledge of plaintiffs' continued maintenance of another insurance policy could be imputed to defendant; and defendant's agent had no duty to investigate to determine whether plaintiffs had in fact cancelled their other insurance policy. 3. Husband and Wife 3.1 — husband's release of insurer — husband as wife's agent Plaintiffs' contention that payment by defendant insurer to the male plaintiff pursuant to the contents and living expense provisions of the insurance policy did not discharge defendant's obligation to the female<page_number>Page 442</page_number> plaintiff under the policy was without merit since the evidence tended to show that, in signing the proof of loss and release forms and in accepting defendant's check, the male plaintiff was acting as agent for his wife, the female plaintiff, and that she ratified his acts in accepting the use of the funds.

Injunctions 2; Eminent Domain 1 — injunction not available to prohibit condemnation Plaintiff landowners could not invoke the aid of a court of equity to enjoin a county from condemning their land for a public purpose pursuant to G.S. Ch. 160A, Art. 11 where plaintiffs have an adequate remedy at law since they may appeal the condemnation proceeding pursuant to G.S. 160A-255 and may raise on such appeal all issues which they have raised in their action for an injunction.

1. Fraudulent Conveyances 3.4 — consideration — pre existing debt — insufficiency of evidence In an action to have set aside as fraudulent deeds from defendant son and his wife to defendant father and mother, evidence was sufficient to support the trial court's finding that the conveyances were voluntary, that is, without consideration, and that there was no valid, existing debt which was paid by the transfers of property, where such evidence tended to show that no money passed from father to son at the time of the conveyances; the father could not recall how much money, if any, his son owed him at the time of the transfers; the first time the father ever attempted to determine the amount owed him by his son was in response to interrogatories served upon him by plaintiff; the son never signed a promissory note to reflect the monies owed to his father; the son's wife never owed the father any amount; the father never demanded any payment of the amount allegedly owed from his son; and no writing reflecting a $15,000 loan from father to son was ever produced at trial, though the father stated in his deposition that he had found such a writing. 2. Fraudulent Conveyances 3.4 — grantee's assumption of liens — grantee's inability to pay — insufficient consideration In an action to have set aside as fraudulent deeds from defendant son and his wife to defendant father and mother, evidence was sufficient to support the trial court's finding that the conveyances were not supported by consideration, though the son argued that the father assumed the liens upon the property when it was conveyed to him, and the assumption of a mortgage by a grantee generally constitutes consideration for the conveyance of property from an insolvent grantor, since the evidence tended to show that the father was unable to pay the debts assumed and that the son was in fact the one actually making payments on the property in question. 3. Fraudulent Conveyances 3.4 — fraudulent intent — sufficiency of evidence In an action to have set aside as fraudulent deeds from defendant son and wife to defendant father and mother, evidence was sufficient to support the trial court's finding that the transfers were made with fraudulent intent where such evidence tended to show that the transfers were made at a time when the son owed plaintiff a $60,000 debt; the transfers were made while a suit by plaintiff to recover the debt was pending; the son continued to live in the home on one of the pieces of property after its transfer to the father; the son was unable to show that he retained property sufficient to pay the debt to plaintiff on which he certainly knew he was potentially liable; and the father concurred in the son's fraudulent intent in that he knew of his son's financial difficulties.<page_number>Page 521</page_number> 4. Fraudulent Conveyances 3.4 — consideration — retention of other property to pay debts — no fraudulent conveyance In an action to have set aside as fraudulent a deed from defendant son and his wife to defendant father and mother, evidence was sufficient to support the trial court's conclusion that there was sufficient consideration to support the transfer and that defendant son and his wife did not divest themselves of all their property at that time where such evidence tended to show that the father and son were jointly obligated on a note secured by the property in question; the son had made some of the mortgage payments out of the rental proceeds from the property; during a period in 1974 six checks written by the son in payment of that obligation were returned for lack of sufficient funds; the mortgagee notified the father that the property would be foreclosed unless full payment of the amount in arrears was made immediately; the father paid the amount in arrears; thereafter the property was transferred to the father and mother in December 1974; the father made all payments thereafter; at the time of the transfer defendant son and his wife owned other property sufficient to pay other debts; and there was no evidence that, as of the date of the transfer, a default had occurred with respect to defendants' obligation to plaintiff.

1. Searches and Seizures 13- defendant's briefcase voluntarily handed over by friend — no search and seizure Where defendant entrusted his briefcase to a friend for safekeeping and the friend, upon request of law enforcement officers, delivered the briefcase to them, there was no search and seizure of the briefcase within the contemplation of the Fourth Amendment, and the trial court therefore did not err in denying defendant's motion to suppress the briefcase.<page_number>Page 548</page_number> 2. Criminal Law 43.1; Rape 10 — photographs of defendant in sexual activity — admissibility in rape case In a prosecution for first degree rape of a female child under the age of twelve years, defendant being a male person above the age of sixteen years, the trial court did not err in admitting into evidence photographs taken from defendant's briefcase which depicted defendant and a young female person, who was at one time defendant's fiance, engaging in a variety of sexual activities and photographs of the female in a variety of poses while in a state of complete undress, since defendant showed the photographs to the prosecutrix shortly after one instance of sexual abuse on a certain day and immediately prior to another instance on that same day; the showing of the photographs was closely related to and a part of the entire transaction with the prosecutrix which was charged under the indictment for first degree rape; the photographs were probative, competent and substantive evidence of defendant's aminus and state of mind at the time the acts charged were committed; and the photographs were admissible to corroborate the testimony of the prosecutrix and her sister. 3. Criminal Law 86.5; Rape 10 — photographs of defendant in sexual activity — cross-examination proper In a prosecution for rape of a female child under twelve, defendant being a male over sixteen, where the State introduced into evidence photographs of defendant and a young female person engaging in a variety of sexual activities, the trial court did not err in allowing the State to cross-examine defendant with reference to the content of the photographs and defendant's relations with the person depicted therein, since the State could show whether defendant, in showing the pictures to the minor prosecutrix, intended to arouse or gratify sexual desire within the contemplation of G.S. <cross_reference>14-202.1</cross_reference>(a)(1); the State could properly impeach defendant by asking questions concerning prior degrading conduct; and, inasmuch as the female in the photographs was young, the information elicited by this line of cross-examination was relevant and probative as to defendant's proclivities towards this type of conduct. 4. Criminal Law 34.7; Rape 10 — sexual acts committed on prosecutrix' sister — evidence admissible to show aminus In a prosecution of defendant who was over sixteen for the rape of a female under 12, the trial court did not err in allowing testimony concerning sexual acts committed by defendant upon the sister of the prosecutrix over a period beginning two years before acts complained of by the prosecutrix and continuing to the general time of the acts for which defendant was being tried, since such testimony was admissible to show the aminus and purpose of defendant. 5. Criminal Law 86.5 — prior degrading acts — cross-examination of defendant proper In a prosecution for rape, the trial court did not err in permitting cross-examination of defendant concerning a bag of what appeared to be pubic hair which was seized from defendant's briefcase since defendant could properly be impeached by evidence of prior degrading acts.<page_number>Page 549</page_number> 6. Rape 10 — erotic book in defendant's briefcase — admission harmless error Though the trial court in a first degree rape case should have excluded from evidence three erotic books seized from defendant's briefcase, admission of the books was not so prejudicial as to require a new trial.