Volume 45 — North Carolina Court of Appeals Reports

1. Criminal Law 139 — sentence to minimum and maximum terms — statements relating to parole as surplusage Where the trial court sentenced defendant to a minimum term of 20 years and a maximum term of 30 years, additional language in the judgment stating the intent of the trial judge with respect to parole of defendant was mere surplusage and not binding on the court, the Department of Correction, or the Parole Commission. 2. Criminal Law 144 — motion for appropriate relief — no authority to resentence for discretionary reasons after session ended A trial court upon a motion for appropriate relief does not have the authority to resentence a criminal defendant for discretionary reasons after expiration of the session of court in which he was originally sentenced where no error of law appears upon the face of the original judgment.

Principal and Surety 11 — automobile dealer's bond — protection of purchaser only Plaintiff wholesale automobile dealer, who sold vehicles to defendants, could not recover from defendant surety company on a bond<page_number>Page 97</page_number> obtained by defendant automobile dealers in order to meet the requirements of G.S. <cross_reference>20-288</cross_reference>(e) and to obtain a license as a motor vehicle dealer, since the bond provided recovery only to purchasers from defendants.

1. Criminal Law 7, 73.2 — entrapment — evidence of statements by informant not hearsay Since statements by a paid informant were not offered to prove the truth of the matters asserted (i.e., that the informant was addicted to heroin and that she was sick) but instead were offered to show that the statements were made, and that through them defendant was induced to commit an offense he would not otherwise have committed, the statements were not hearsay and the trial court erred in excluding them in a prosecution for possession with intent to sell and sale of heroin. 2. Constitutional Law 65 — State required to attempt to locate paid informant There was no merit to defendant's contention that the trial court erred in failing to require the State to make an affirmative effort to locate a paid informant, since, prior to arraignment and trial, the court declared the informant a material witness and ordered the State to furnish defendant with the best information available to the district attorney and local law enforcement officers as to the informant's whereabouts and it was further ordered that if an address for the informant was found, the State was to inform the court and defendant.

1. Evidence 50.2; Physicians, Surgeons, and Allied Professions 15.1 — cause of physical injury — expert testimony by nurse An expert witness is not disqualified from giving an expert opinion as to the cause of a physical injury simply because he is not a medical doctor. The trial court in this malpractice case erred in refusing to permit a nurse who was specially trained in intravenous therapy to state her opinion that burns on plaintiffs hand were caused by the improper intravenous administration of undiluted potassium chloride into the tissue of the hand where the court ruled that such testimony was inadmissible as a matter of law. 2. Evidence 50.2; Physicians, Surgeons, and Allied Professions 15.1 — cause of injury — exclusion of expert testimony — testimony not cumulative A nurse's opinion testimony that the improper intravenous administration of potassium chloride was the cause of an injury to plaintiffs hand was not properly excluded on the ground that it was cumulative where (1) the court ruled the testimony was inadmissible as a matter of law and was not exercising its discretion to limit the number of witnesses, and (2) the testimony was not cumulative since the only other evidence supporting plaintiff's theory of causation was the testimony of a medical doctor who stated that a high concentration of potassium chloride released into the tissue surrounding the site of plaintiffs intravenous treatment could have caused plaintiffs injury.

1. Municipal Corporations 22.2 — street paved by private corporation — road opened by town — ultra vires contract Even if an express contract existed between the parties whereby plaintiff agreed to grade and pave a road owned by defendant town and the town agreed to open a road as an inducement for plaintiff to build a shopping center in the town, such contract was ultra vires and void, since the contract purported to restrict the statutory discretion vested by G.S. <cross_reference>160A-296</cross_reference> in the Board of Aldermen of defendant town to determine whether a street should be opened for public benefit; even if the town's opening of the road would in fact serve the interests of the residents of the town, the governing body's agreement with plaintiff, a private party, to do so would nevertheless be void as against public policy; and plaintiff's performance of its part of the agreement in expending money<page_number>Page 250</page_number> for the paving of a street belonging to the town would not render the agreement valid, since the town could not be estopped from asserting that the agreement was ultra vires and therefore void. 2. Municipal Corporations 22.2 — street paved pursuant to illegal contract — no recovery for expenditures Since an alleged contract by plaintiff to pave a town street in exchange for the town's opening of another road was ultra vires and void, plaintiff could not recover money expended by it in paving the street and thereby executing its part of the agreement.

1. Master and Servant 35.2 — shooting by security guard — application of respondeat superior — jury question In an action to recover from defendant corporation for the wrongful death of plaintiff's intestate which occurred when an armed security guard employed by defendant was leaving his duty station at the end of his shift, the trial court erred in determining that there was no genuine issue of material fact relating to the doctrine of respondeat superior and in entering summary judgment for defendant corporation, since the jury could find that defendant security guard engaged in "horseplay" in that, thinking his gun was empty, he pointed it at plaintiff's intestate and intentionally pulled the trigger after she<page_number>Page 261</page_number> grabbed and held his sleeve, thereby deviating from the scope of his employment and absolving defendant corporation from liability under the doctrine of respondeat superior; or on the other hand the jury could find that the security guard was not engaged in horseplay but negligently failed to remove all cartridges from the gun and, thinking it was empty, negligently handled the gun causing it to discharge and strike plaintiff's intestate, thus raising a question for the jury as to whether the security guard was acting within the course and scope of his employment. 2. Corporations 15 — shooting by security guard — president of corporation insulated by corporate entity In an action to recover for the wrongful death of plaintiff's intestate who was shot by the security guard employed by defendant corporation, the trial court properly entered summary judgment for the major stockholder and president of defendant corporation, since there was no showing that he was acting in his individual capacity and he was consequently insulated by the corporate entity through which he was doing business. 3. Negligence 30.3 — shooting death — failure to warn of bullet — no foreseeability In an action to recover for the wrongful death of plaintiff's intestate who was shot by a security guard at her place of employment, the trial court properly granted summary judgment for defendant security guard whose shift preceded that of defendant who shot deceased, since the first security guard was under no duty to warn that he had placed an extra bullet in the gun when he transferred the gun to the second guard, who had full knowledge that it was loaded, and even if the first guard were negligent in failing to warn of the extra bullet, his negligence would not be actionable because it was not foreseeable that the second guard would either engage in horseplay or fail to check all the cylinders while unloading the gun.

1. Burglary and Unlawful Breakings 4; Larceny 6.1 — value of property taken overstated — harmless error In a prosecution for breaking and entering and felonious larceny, any error in the admission of testimony that the value of the items stolen was $1070, based on replacement cost, was harmless since the larceny in this case was a felony without regard to the value of the property taken.<page_number>Page 298</page_number> 2. Burglary and Unlawful Breakings 5.9 — judgment arrested on larceny conviction — felonious breaking or entering conviction unaffected The trial court's arrest of judgment on defendant's conviction of felonious larceny had no effect on defendant's conviction for felonious breaking or entering, since a conviction of breaking or entering under G.S. <cross_reference>14-54</cross_reference>(a) did not require that a felony or larceny actually be committed in the building broken into but only that defendant have an intent at the time of breaking or entering to commit the larceny. 3. Attorneys at Law 7.2 — indigent defendant — judgment for counsel fees — insufficient notice and hearing The trial court erred in entering a judgment against the indigent defendant for attorney's fees without notice or an opportunity to be heard, and a statement printed on the "Affidavit of Indigency" which defendant was required to complete before counsel was appointed for him did not constitute sufficient notice.

1. Rules of Civil Procedure 55.1 — default judgment entered by clerk — no method of computing damages — clerk without authority The clerk of court had no power to enter a default judgment in a breach of contract action since nothing in the complaint made it possible to compute the amount of damages to which plaintiff was entitled by reason of the breach. 2. Rules of Civil Procedure 55.1 — setting aside default — wrong test applied by court The trial court erred in denying defendant's motion to set aside entry of default on the ground that defendant failed to show excusable neglect, since all that defendant was required to show in order to have entry of default set aside was good cause.

1. Contempt of Court 3.1 — civil contempt — failure to take job in order to make payments A person may be guilty of civil contempt, even if he does not have the money to make court ordered payments, if he could take a job which would enable him to make those payments and he fails to do so. 2. Contempt of Court 6.3 — civil contempt — ability to comply with order — finding required In order for a person to be held in civil contempt, the person to whom the contempt order is directed must be able to comply with the order or be able to take reasonable measures that would enable him to comply, and the trial court must find that the defendant has the ability to comply.

1. Contracts 14.2 — contract between attorney and client — plaintiff as third party beneficiary — insufficiency of complaint Where plaintiff lessor alleged that it suffered damages when it leased equipment to a third party on the basis of incorrect representations made by defendant attorney to third party lessee concerning the existence of a lien on a piece of property used as collateral by third party lessee for the execution of the leasing agreement with plaintiff, plaintiff's complaint was insufficient to state a claim based on the third party beneficiary contract doctrine, since plaintiff's complaint did not allege the existence of a contract between two other persons which was valid and enforceable and which was entered into for plaintiff's direct, and not incidental, benefit. 2. Contracts 15 — professional's contract with client — third person not in privity — negligence action — factors to be considered A third person not in privity of contract with a professional person may recover for negligence in the professional person's performance of his employment contract with his client, and whether a person has placed himself in such a relation with a third person so that the law will impose upon him an obligation, sounding in tort and not in contract, to act in such a way that the third person will not be injured calls for the balancing of the following factors: (1) the extent to which the transaction was intended to affect the third person, (2) the foreseeability of harm to him, (3) the degree of certainty that he suffered injury, (4) the closeness of the connection between the defendant's conduct and the injury, (5) the moral blame attached to such conduct, and (6) the policy of preventing future harm. 3. Attorneys at Law 5.1; Contracts 15 — negligence of attorney — liability to third person — sufficiency of complaint Plaintiff's complaint was sufficient to state a cause of action against defendants based in tort where plaintiff alleged that it had<page_number>Page 401</page_number> entered into the lease agreement for certain equipment with a third party; the lease agreement was subject to a condition that title opinions be furnished as to the status of the titles of the properties which were to secure the leasing agreement; defendant law firm through the individual defendant sent plaintiff a letter concerning the title of the subject property; subsequently, a deed of trust constituting a prior lien on the property in favor of a bank was discovered; and as a result of the prior undisclosed lien, plaintiff's equity position in the secured property was impaired. 4. Rules of Civil Procedure 56 — allowance of motion to dismiss complaint — summary judgment motion moot When a court decides to dismiss an action pursuant to G.S. <cross_reference>1A-1</cross_reference>, Rule 12(b)(6), any pending motion for summary judgment against the claimant may be treated as moot and therefore need not be decided.

1. Receiving Stolen Goods 5.1 — receiving stolen televisions — defendant's knowledge that goods stolen — sufficiency of evidence Evidence that defendant knew television sets were stolen at the time he received them was sufficient to be submitted to the jury where it tended to show that defendant purchased from an individual two color televisions and two stereos still in their sealed boxes, stamped with the name of a firm from which such equipment had been stolen; defendant paid about half as much as the equipment was worth; on two subsequent occasions defendant made other similar purchases; and five or six months after the purchases in question, defendant told an SBI agent that he knew the items he had purchased were stolen. 2. Receiving Stolen Goods 1 — absolute knowledge that goods stolen not required There was no merit to defendant's contention that the State was required to show that he had absolute knowledge that television sets which he received were stolen, since the statute under which defendant was charged provided that a person would be guilty of receiving stolen goods if he received them "knowing or having reasonable grounds to believe" that they were stolen. G.S. <cross_reference>14-71</cross_reference>. 3. Constitutional Law 50 — Speedy Trial Act inapplicable The Speedy Trial Act, which applied to defendants arrested or indicted after 1 October 1978, was inapplicable to defendant's case since he was indicted on 30 May and arrested on 31 May 1978. 4. Receiving Stolen Goods 4; Criminal Law 81 — televisions stolen — evidence of value not prejudicial — best evidence rule inapplicable In a prosecution for receiving stolen property, defendant was not prejudiced by the trial court's error in allowing an SBI agent to give his opinion of the value of the stolen goods allegedly received; furthermore, the "best evidence rule" did not require that the State introduce the stolen goods into evidence, since that rule applied to writings introduced into evidence to prove their contents. 5. Criminal Law 86.5 — specific act of defendant — question proper for impeachment Defendant who was accused of receiving stolen property could properly be asked for impeachment purposes if he had conspired to break into a named house to steal guns. 6. Criminal Law 87 — witness's name not on list — defendant not prejudiced by testimony Defendant was not prejudiced where the trial court permitted a witness, whose name was not on the list of potential witnesses for the<page_number>Page 418</page_number> State given to defendant before voir dire of the jury, to testify, since the court inquired whether any of the jurors were acquainted with the witness; none responded that they were; and defendant did not ask for a recess to secure witnesses to counteract the surprise witness's testimony.

1. Insurance 18 — life insurance — avoidance of policy for misrepresentations An insurer's duty under an insurance contract may be avoided by a showing that the insured made representations in his application which were material and false, and a representation in a life insurance application is deemed material if the knowledge or ignorance of it would naturally influence the judgment of the insurer in making the contract and accepting the risk. 2. Insurance 18 — life insurance — avoidance of policy for misrepresentations — burden of proof After plaintiff has made a prima facie case for recovery upon a life insurance policy, the burden of proof is upon the insurer to establish the misrepresentations relied on by it to avoid that policy. 3. Insurance 19.1 — life insurance — failure to list driving under influence charge — knowledge of agent imputed to insurer Where, in an application for a double indemnity life insurance policy which was completed for the insured by defendant insurer's agent, only a charge of speeding 60 in a 45 mph zone was listed in answer to a question as to whether insured had been charged with any motor vehicle moving violations or had had his license revoked within the past three years, but insured discussed with the agent the possibility that a charge against him for driving under the influence might have occurred within the past three years and was told by the agent that he should not worry about whether the charge was within three years because insurer would obtain a copy of insured's driving record and would notify insured if there was a problem, the agent had notice of insured's conviction within the past three years for driving under the influence which further inquiry would have revealed, and such notice was imputed to defendant insurer and precluded defendant from avoiding the policy on the ground that such conviction was not listed in the application, notwithstanding the application contained a provision that knowledge of an agent did not constitute knowledge of the insurer.

Uniform Commercial Code 43 — sale of secured property — subsequent new loan agreement — future advance — summary judgment improper In an action to determine whether plaintiff lender was entitled to possession of personal property, used to secure a loan, which was subsequently sold to a third party, the trial court erred in granting summary judgment for plaintiff where a genuine issue of fact existed as to whether plaintiff and defendant borrower intended their loan transaction of June 1977 to renew, enlarge or extinguish the note executed in April 1976 by borrower which was secured by the property in question, since the nature of the second loan determined whether it was a future advance within the meaning of G.S. <cross_reference>25-9-307</cross_reference>(3) and thus whether defendant purchaser from defendant borrower took the property in question free from plaintiff lender's security interest.

1. Rules of Civil Procedure 13 — actions arising out of landlord and tenant relationship — no compulsory counterclaim Plaintiff's claim for summary ejectment was not a compulsory counterclaim in defendant's prior action for breach of a lease agreement, breach of covenants of fitness and habitability and of the duty of repair, violations of the unfair trade practices statute, and conspiracy to deprive defendant of her civil rights, although both actions arose out of the same landlord and tenant relationship, since the nature of the actions and the remedies sought were too divergent. G.S. <cross_reference>1A-1</cross_reference>, Rule 13(a). 2. Ejectment 1 — summary ejectment procedures — constitutionality The summary ejectment procedures set out in G.S. <cross_reference>42-26</cross_reference>(1) and G.S. <cross_reference>42-32</cross_reference> are not unconstitutional because the statutes provide no defense<page_number>Page 491</page_number> to a residential tenant of commercially owned property who holds over after being given notice that the term has expired or that the owner desires possession. 3. Ejectment 1; Constitutional Law 4 — constitutionality of summary ejectment statutes — equal protection — absence of standing Defendant had no standing to attack the summary ejectment statutes, G.S. <cross_reference>42-26</cross_reference>(1) and G.S. <cross_reference>42-32</cross_reference>, on the ground that they discriminate against lower and lower middle income persons who are economically compelled to rent where she failed to show that she was a member of the allegedly injured classes.

1. Homicide 21.7 — abused child — second degree murder — sufficiency of evidence Evidence in a second degree murder prosecution was sufficient for the jury to find that the victim died from other than natural causes and to find that defendant was culpably negligent and such negligence was the cause of the victim's death where the evidence tended to show that the victim was defendant's five-year-old daughter; the child's death resulted from suffocation caused by a blood clot from a wound in her mouth; the child suffered from the "battered child syndrome"; and the child was in defendant's care at all times. 2. Parent and Child 2.2 — child abuse — sufficiency of evidence Evidence was sufficient for the jury in a prosecution for child abuse where the evidence tended to show that defendant was the mother of the child in question and the child was less than 16; a physician testified that the child suffered from "battered child syndrome"; and the doctor based his opinion on the totality of evidence regarding the child's injuries. G.S. <cross_reference>14-318.2</cross_reference>(a). 3. Parent and Child 2.1 — neglect of child — sufficiency of evidence Evidence was sufficient for the jury in a prosecution for child neglect where it tended to show that defendant was the mother of the child in question who was less than 16; the child had numerous broken bones which had not been treated and a staph infection in the knees, lungs and scalp; and defendant admitted that she was not aware of any broken bones or infection and did not seek medical treatment for any of the child's injuries. G.S. <cross_reference>14-316.1</cross_reference>.<page_number>Page 575</page_number> 4. Homicide 23.1 — jury instructions — second degree murder and involuntary manslaughter — culpable negligence There was no merit to defendant's contention that there must be different definitions of culpable negligence for involuntary manslaughter and second degree murder, and the trial judge made it clear that culpable negligence evidencing malice must be found before there could be a conviction for second degree murder. 5. Parent and Child 2.2; Homicide 5 — second degree murder — abuse and neglect of child not lesser offenses Charges of child abuse and child neglect were not merged into the charge of second degree murder, since second degree murder does not require that the victim be under 16 years of age or that the injury be inflicted by the child's custodian, as do the offenses of child abuse and neglect, and since the abuse and neglect occurred over many months and there were many separate acts of abuse and neglect which by themselves were not the proximate cause of the child's death. 6. Criminal Law 53 — medical expert testimony Where a doctor had been qualified as a medical expert and had conducted the autopsy on the homicide victim, he could testify directly as to his opinion without first stating that his opinion was satisfactory to himself or based upon a reasonable degree of medical certainty.

1. Insurance 121 — fire insurance — increasing hazard by intentionally setting fire — sufficiency of evidence Defendant insurer's evidence was sufficient to support a jury finding that plaintiffs were not entitled to recover on a fire insurance policy because they increased the hazard insured against by intentionally burning the insured property where it tended to show that the individual plaintiff was alone at the insured premises when the fire occurred; plaintiffs were faced with financial difficulties; five areas in the insured premises were points of origin of the fire; classic flammable liquid patterns were found at those five points; and the fire was not accidental.<page_number>Page 626</page_number> 2. Evidence 22.2 — fire insurance — intentional burning — absence of criminal charges against plaintiff — inadmissibility In an action on a fire insurance policy in which defendant insurer's evidence tended to show that the individual plaintiff intentionally burned the insured premises, the trial court properly refused to permit plaintiffs to elicit testimony from an S.B.I. agent who testified as an expert in fire investigation that no criminal charges had been filed against the individual plaintiff, since only a criminal conviction based on a plea of guilty would be admissible on the question of liability in a civil action. 3. Insurance 121 — fire insurance — insured's increase of hazard — instructions In an action on a fire insurance policy, the trial court adequately instructed the jury on defendant insurer's defense that the hazard insured against was increased by means within the control or knowledge of plaintiff insureds.

Physicians, Surgeons and Allied Profession 11.1 — veterinarian — method of treating horse — expert's opinion testimony — familiarity with standard of care In an action to recover damages for the death of plaintiff's horse as a result of the allegedly negligent method of treatment following castration surgery performed by defendant, the trial court erred in excluding testimony by plaintiff's witness, a veterinarian qualified as an expert with a "horse specialty," that the procedures employed by defendant were contrary to acceptable medical practice standards in Wake County, since the medical procedure involved was not complicated or rare but an operation routinely performed on riding and show horses; the witness's method of performing the operation would be the same whether he performed it in his prior place of practice or in Wake County; and the fact that the witness did not actually begin practicing in Wake County until two months after the treatment in question should not have required exclusion of his testimony but was merely a factor for the jury to consider in deciding what weight it would give his testimony.

1. Appeal and Error 6.3 — interlocutory ruling — appeal premature Defendant's appeal on the ground that the trial court lacked jurisdiction over him to enter a temporary custody order was subject to dismissal, since the court's order denying defendant's motion to dismiss on that ground was an interlocutory ruling, and since defendant's appeal was not from an "adverse ruling" as to jurisdiction "over the person or property" of defendant. G.S. <cross_reference>1-277</cross_reference>(b). 2. Divorce and Alimony 23.5 — temporary custody — children in N.C. — subject matter jurisdiction in trial court There was no merit to defendant's contention that the trial court lacked subject matter jurisdiction to enter its temporary order placing custody of the parties' children with the Department of Social Services and ordering it to place them with plaintiff pending a hearing on the merits, since the children were present in N.C. when the action was commenced and the temporary custody order was entered and the court obviously had personal jurisdiction over plaintiff. G.S. <cross_reference>50-13.5</cross_reference>(c)(2).

Limitation of Actions 16.1, 18.1 — assault and battery — statute of limitations not pled — claim improperly labeled — action barred Plaintiff's claim was barred by the one year statute of limitations for actions based on assault and battery, though the statute of limitations was never pled in answer and though plaintiff's complaint sought recovery for the intentional infliction of mental distress to which a three year statute of limitations would apply, since the unpled affirmative defense of the statute of limitations could be heard for the first time on motion for summary judgment where both parties were aware of the defense, and since the action was in fact based on assault and battery, and plaintiff's label of intentional infliction of mental distress would not apply to invoke the longer period of limitation. G.S. <cross_reference>1-54</cross_reference>(3).<page_number>Page 697</page_number>