Volume 46 — North Carolina Court of Appeals Reports

1. Courts 9.3 — amendment of pleadings — consent judgment affected The power of a superior court to allow an amendment to pleadings may not be exercised so as to upset or destroy the efficacy of a validly entered and jurisdictionally sound consent decree. 2. Courts 9.3; Judgments 8 — consent judgment — striking defense — amendment to reassert defense improperly allowed A superior court judge erred in allowing defendant to amend its answer to reassert the defense of lack of timely notice of a claim, which plaintiff wanted defendant insurer to defend and pay, where the parties had earlier agreed to a consent judgment striking the late notice defense, since the judge contravened the rule that one superior court judge may not modify, overrule, or change the judgment of another superior court judge in the same action, and since the consent judgment was the binding contract of the parties which could not be modified without the parties' consent.

Bastards 10; Constitutional Law 20 — action to establish paternity — statute of limitations — denial of equal protection to illegitimates The three-year statute of limitations set forth in G.S. <cross_reference>49-14</cross_reference> (c)(1), which limits the time in which an action to establish the paternity of an illegitimate child must be commenced, is not substantially related to any permissible State interest and unconstitutionally discriminates against illegitimate children in violation of the Equal Protection Clause of the U.S. Constitution since it constitutes an impenetrable barrier to the right of some illegitimate children to receive support from their fathers, and no statute of limitations is provided for a support action instituted on behalf of a legitimate child.

1. Insane Persons 1 — custody order for involuntary commitment under emergency procedures A magistrate's order, when read with an officer's affidavit which was incorporated by reference therein, was sufficient to meet requirements for a custody order for involuntary commitment of respondent pursuant to the emergency procedures of G.S. 122-58.18 for violent persons. 2. Insane Persons 1 — petition for involuntary commitment — violent person — no personal observation of violent act by petitioner An officer's petition for involuntary commitment of respondent pursuant to the emergency procedures for violent persons was not required to be dismissed because the officer did not personally observe the respondent in an act of violence but relied on information gained from others. 3. Insane Persons 1.2 — involuntary commitment — imminent danger to others — sufficiency of evidence There was clear, cogent and convincing evidence before the trial court to support the court's finding that respondent was "imminently dangerous" to others and its order of involuntary commitment of respondent where the evidence tended to show that respondent appeared at the military desk at Fort Bragg, identified himself as Jesus Christ, stated that he had been sent by the Pope to procure a permit to carry a weapon, requested an automatic weapon, and insisted that he was working as an undercover agent for the Criminal Investigative Division; a doctor found a knife with a blade approximately sixteen inches long in respondent's luggage; respondent told the doctor, "You would be surprised at how many people are frightened by that knife."; it was the doctor's expert opinion that respondent could injure someone if he found them to be, in respondent's words, "dispensable"; and<page_number>Page 266</page_number> respondent testified that, if you cannot reason with an agent, "you shoot him on sight because he's dangerous" and that he would use a knife "for self-preservation once in a while."

Contracts 4.1 — employee's debt to third person — employer's agreement to deduct from paycheck — sufficiency of consideration An agreement entered into by an employer to deduct from an employee's pay and forward a sum of money to a creditor to induce performance of an obligation owed by the creditor to the employee, who is in default of his obligation to pay the creditor, is not void because of lack of consideration; therefore, the trial court erred in entering summary judgment for defendant employer where plaintiff attorney had been hired to defend defendant employee pursuant to two fee agreements; the employee had defaulted in payment but had induced his employer to agree to deduct and forward weekly payments so that plaintiff would continue to defend him; the employer would continue to receive defendant's service as an employee; and the employer failed to deduct and forward payments as agreed.

Automobiles 6.3; Sales 22.2 — defective brakes — seller's liability — insufficient evidence The trial court properly entered summary judgment for defendant in an action to recover for injuries allegedly caused by defendant's negligent installation of the brake system on a truck sold to plaintiff's employer and defendant's failure to use reasonable care in maintaining the brake system where defendant presented evidence that it had inspected the brake system but had discovered no defects and that the only reported problem with the brake system was the staying on of the anti-skid light and this had been repaired, and plaintiff failed to come forward with evidence of the prior existence of some specific defect in the brake system which was the proximate cause of plaintiff's injury.

Fraud 12.1 — fraud in procurement of deed — statute of limitations pled — summary judgment proper Defendants were entitled to summary judgment in plaintiff's action for damages or a decree voiding a deed she had executed where plaintiff alleged that she was induced by fraud to sign a warranty deed and that defendants conspired to obtain her property for less than its true value; defendants answered that the transaction in which plaintiff conveyed her property to one defendant occurred more than five years before filing of the complaint; and plaintiff made no reply alleging that she first discovered facts about the transaction which would constitute fraud within the three years prior to the filing of the action.

Appeal and Error 6.2 — application for special use permit — remand for hearing de novo — nonappealable order An order remanding the case to the Wilmington City Council for a hearing de novo upon petitioners' application for a special use permit was a nonappealable interlocutory order.

1. Administrative Law 4; Highways and Cartways 1; State 1 — government action — environmental impact It is the policy of this State and the Federal Government that environmental impacts be considered before major governmental actions involving the expenditure of public funds are taken; nonetheless, once these environmental factors are properly taken into consideration, pursuant to prescribed procedures, governmental agencies may effect the completion of a proposed project notwithstanding the fact that adverse environmental consequences may occur. 2. Administrative Law 8 — review of agency decision — environmental consequences A court may review the manner in which an agency decision has been made to ensure that environmental consequences have been considered in the manner prescribed by law. 3. Administrative Law 5; Highways and Cartways 1 — location of highway — decision of State Board of Transportation — plaintiffs as aggrieved parties Plaintiffs were all "aggrieved" by a decision of the State Board of Transportation on the location of an interstate highway within the meaning of G.S. 150A-43 where the individual plaintiffs are property owners within the proposed corridor of the highway, the members of plaintiff nonprofit corporation are citizens and taxpayers who live in<page_number>Page 351</page_number> or near the proposed corridor, and plaintiff county's tax base and planning jurisdiction will be affected by the proposed highway. Furthermore, the individual plaintiffs as taxpayers are "aggrieved" persons under G.S. 150A-43. 4. Administrative Law 5; Highways and Cartways 1 — failure of agency to prepare environmental impact statement — procedural injury — aggrieved party The "procedural injury" implicit in the failure of an agency to prepare an environmental impact statement is itself a sufficient "injury in fact" to support standing as an "aggrieved party" under G.S. 150A-43 as long as such injury is alleged by a plaintiff having sufficient geographical nexus to the site of the challenged project that he may be expected to suffer whatever environmental consequences the project may have. 5. Administrative Law 5; Constitutional Law 7.1 — unconstitutional delegation of legislative power — no judicial review of agency decision Plaintiffs cannot obtain judicial review under G.S. 150A-43 of their claim that G.S. <cross_reference>143B-350</cross_reference> (f)(8) unconstitutionally delegates legislative power to the State Board of Transportation since the claim involves no agency "decision," but such claim may be heard pursuant to Art. IV, 1 of the N.C. Constitution. 6. Administrative Law 5; Highways and Cartways 1 — denial of hearing to plaintiffs — final agency decision — judicial review A decision by the State Board of Transportation to deny plaintiffs a hearing before the Board concerning the location of an interstate highway was a "final" decision within the meaning of G.S. 150A-43 since the decision affected a right which plaintiffs had pursuant to the Board's own administrative regulations. 7. Administrative Law 5; Highways and Cartways 1 — federal-aid highway — adequacy of environmental impact statement — judicial review — necessity for federal location approval Appellants cannot obtain judicial review under G.S. 150A-43 of a claim pertaining to the inadequacy of the environmental impact statement for a proposed federal-aid highway under either federal statutes or the N.C. Environmental Protection Act unless they show that the State Department of Transportation has requested and received location approval for the highway from the Federal Highway Administration. 8. Administrative Law 5; Highways and Cartways 1 — location of interstate highway — N.C. Environmental Protection Act involved — contested case The decision of the State Board of Transportation as to the location of an interstate highway constitutes a "contested case" within the meaning of G.S. 150A-43 where the North Carolina Environmental Protection Act is involved. 9. Administrative Law 5; Highways and Cartways 1 — right to petition State Board of Transportation — exhaustion of administrative remedies — substantial compliance Appellants complied with the substance of the right of petition to the State Board of Transportation through the county commissioners given by G.S. <cross_reference>136-62</cross_reference> concerning the location of a highway when they<page_number>Page 352</page_number> joined with Orange County to present their grievances to the Board and subsequently to bring this lawsuit. 10. Administrative Law 5; Highways and Cartways 1 — location and environmental impact of highway — failure to appeal to hearing officer — administrative regulations not readily available — judicial review Appellants' failure to exhaust their administrative remedy of appeal to a hearing officer appointed by the Governor did not bar judicial review of a decision of the State Board of Transportation concerning the location and environmental impact of a proposed highway since the administrative remedy prescribed by environmental regulations is inadequate because (1) the administrative regulations have not been published as required by G.S. 150A-63; (2) over 18,000 pages of regulations exist; (3) anyone seeking the regulations would have to sift through the files of regulations in the Attorney General's Office in Raleigh; (4) the regulations which have been officially codified are not indexed by the corresponding statutory reference; and (5) even the most skilled attorney would at best have only a random chance of discovering the existence or absence of the regulations for which he is looking. 11. Highways and Cartways 9; State 4.3 — sovereign immunity — action against State Board of Transportation The doctrine of sovereign immunity did not bar plaintiff's action against the State Board of Transportation alleging that the Board made a decision as to the location of the route for an interstate highway in an unlawful manner since the doctrine of sovereign immunity does not bar an action (1) when public officers invade or threaten to invade the personal or property rights of a citizen in disregard of law or (2) when plaintiffs assert their status as taxpayers to prevent the expenditure of money unauthorized by statute or in disregard of law. 12. Constitutional Law 7.1; Highways and Cartways 1 — authority of Department and Board of Transportation to plan highways — no unlawful delegation of legislative authority The delegation of the authority to the N.C. Department of Transportation and the Board of Transportation to plan and construct an interstate highway did not constitute an unlawful delegation of legislative authority to an administrative body which was unrestrained by legislative standards or sufficient procedural safeguards or political accountability in violation of Art. I, 6 and Art. II, 1 of the N.C. Constitution. 13. Highways and Cartways 9 — action to enjoin Department and Board of Transportation — denial of hearing — federal and Board regulations — claim for relief Plaintiffs stated claims under federal regulations to enjoin the Department of Transportation and Board of Transportation from taking further action on plans for an interstate highway without observing the statutory and constitutional rights of plaintiffs based on (1) denial of a right to be heard by the Board or other hearing officer in the area affected by the highway construction project and (2) inadequate public notice of the highway corridor meetings held by the Board of<page_number>Page 353</page_number> Transportation and the Department of Transportation. Furthermore, plaintiffs stated a claim for injunctive relief based on failure of the Board to grant them a hearing in violation of the Board's regulation in effect at the time plaintiffs sought to be heard which stated that "any person having business with the Board of Transportation shall be heard by the Board." 14. Highways and Cartways 9 — location of federal-aid highway — no final environmental impact statement — no claim for injunctive relief against Board of Transportation Plaintiffs' contention that a final environmental impact statement had not been prepared prior to a decision by the Board of Transportation as to the location of a proposed federal-aid highway stated no claim for injunctive relief against the Board since federal regulations require that the state highway agency select a highway corridor based on the draft environmental impact statement, and a final statement is not required until federal location approval has been obtained. 15. Highways and Cartways 9 — inadequacy of environmental impact statement — claim for injunctive relief against Board of Transportation The appellate court cannot say as a matter of law that plaintiffs have failed to state a claim for injunctive relief against the State Board of Transportation concerning its decision as to the location of an interstate highway based on plaintiffs' allegation that the environmental impact statement relied on by the Board was materially misleading in that it presented two alternative routes which were not real alternatives since they were going to be built regardless of the route selected for the interstate highway. 16. Injunctions 3; Mandamus 3.1; Public Officers 8 — public officers — in personam orders requiring performance of ministerial duties The courts of this State have the power, pursuant to Art. IV, 1 of the N.C. Constitution, to issue in personam orders requiring public officials to act in compliance with their ministerial or nondiscretionary public duties, and it makes no practical difference whether such orders are called writs of mandamus or preliminary injunctions. 17. Highways and Cartways 9; Injunctions 3 — State Board of Transportation — hearing, notice, environmental impact statement — mandatory injunction While the duty to decide where a highway corridor will be located is a discretionary duty for which no mandatory injunction will lie against the Secretary of Transportation, the Manager of the Planning and Research Branch of the Department of Transportation, the Administrator of the Division of Highways, and members of the Board of Transportation in their individual capacities, the duties of such officials to hear the plaintiffs, to provide notice, and to provide an environmental impact statement are ministerial duties which can be enforced by a mandatory injunction.

1. Evidence 22.1 — trial of defendant's counterclaim — admissibility of record of plaintiff's claim In a trial on defendant's counterclaim for specific performance of a contract, the trial court did not err in permitting defendant to introduce into evidence the entire record from an earlier trial of plaintiffs' claim for reformation of the contract where the complaint and counterclaim were filed in the same lawsuit and constituted two parts of the same action, and the claims for reformation and specific performance were severed for trial. 2. Contracts 16.1; Pensions 1 — pension provisions — time of funding — amount, frequency, duration of payments — definiteness of agreement Pension benefit provisions of the contract of defendant professional basketball player was not too indefinite as to the time of funding to be specifically enforced where it is clear that the pension plan was to be funded at least by the time defendant ceased playing for the Carolina Cougars. Nor were the pension provisions too ambiguous as to amount, frequency and duration of retirement benefits to be specifically enforced where the only term contested by plaintiff — the amount of the monthly payment — has been conclusively determined by the courts of this State in plaintiffs' action for reformation, and the contract provisions show that, upon reaching age 55, defendant will be entitled to receive each month for the rest of his life the sum of $600 multiplied by the number of years he played professional basketball. 3. Specific Performance 1 — portion of contract unenforceable — specific performance of other portions Specific performance of a portion of a contract may be granted even where certain other portions are impossible to perform and cannot be enforced. 4. Pensions 1; Specific Performance 3 — pension provisions of contract — inadequacy of remedy at law Defendant's remedy at law was inadequate so that he was entitled to specific performance of the pension provisions of his contract as a professional basketball player where defendant would have to wait until he was 45 years old if he wished to exercise the early retirement provision of the contract or otherwise until he was 55 years old; if plaintiffs failed to comply with the provisions, defendant would be put in a position of continually going to court as the pension payments became due; and plaintiffs may not be financially solvent, in existence or able to fund the pension when defendant reaches the age of 45.<page_number>Page 415</page_number> 5. Pensions 1; Specific Performance 2 — pension provisions of contract — alleged misunderstanding of terms by plaintiffs There is no merit in plaintiffs' contention that specific performance of the pension provisions of the contract of a professional basketball player should not be granted because plaintiffs did not understand that the pension provisions might mean what the superior court decreed they mean where the contract was negotiated, prepared and examined by businessmen experienced in the area of player contracts and professional basketball franchises, and the courts have conclusively and finally determined that both parties executed the contract in accord with their intentions. 6. Pensions 1; Specific Performance 1 — specific performance of pension provisions — sufficiency of complaint Defendant's counterclaim was sufficient to state a claim for specific performance of the pension provisions of his contract as a professional basketball player. 7. Evidence 13; Courts 9 — ruling on attorney-client privilege — no authority by another judge to set aside A superior court judge could not set aside the ruling of another superior court judge in the same action that documents from the file of defendant's former lawyer were protected from disclosure by the attorney-client privilege. 8. Pensions 1; Contracts 20.1 — pension provision — impossibility of performance The trial court did not err in ruling that a contract provision requiring plaintiffs to provide defendant basketball player with "life insurance in an amount equal to one hundred (100) times the cash value of the pension described above from the date he ceases to play professional basketball until the date that he commences drawing retirement" was impossible to perform and could not be specifically enforced since the cash value would range from approximately $360,000 when defendant ceased playing basketball to approximately $910,000 at the time defendant became eligible to draw retirement, and it is commercially impossible to insure an individual for an amount ranging from $36 million to $91 million (100 times the cash value). Furthermore, the trial court had no authority to modify the contract so that plaintiffs would be liable to provide life insurance at 100 times the amount of the monthly pension benefit. 9. Attorneys at Law 7.1 — attorney fees — provision in contract — applicability to actions involving third parties Provision of a basketball player's contract in which plaintiffs agreed to indemnify the player for claims resulting from the player's execution of the contract and to pay all legal expenses in connection with such claims applied only to actions involving third parties and not to actions between the parties to the contract.

1. Insurance 96.1 — notice of accident to insurer — reasonable time — prejudice to insurer In deciding whether an insured has complied with a notice provision in an insurance policy requiring notice to the insurer "as soon as practicable," the finder of facts must determine whether notice was given within a reasonable time considering all the facts and circumstances of the particular case, and, if not, whether the insurer has suffered prejudice from the insured's delay in giving notice. 2. Insurance 96.1 — notice of accident to insurer — prejudice to insurer — factors to be considered In determining whether an insurer has been prejudiced by an insured's failure to give timely notice of an accident, the inquiry is whether the delay has frustrated the purpose of the notice provision to afford the insurer an opportunity to conduct an adequate and timely investigation, and among the factors to be considered are the availability of witnesses to the accident, the ability to discover other information regarding the conditions of the locale where the accident occurred, any physical changes in the location of the accident during the period of the delay, the existence of official reports concerning the occurrence, the preparation and preservation of demonstrative and illustrative evidence such as the vehicles involved in the occurrence or photographs and diagrams of the scene, and the ability of experts to reconstruct the scene and the occurrence. 3. Insurance 96.1 — automobile liability insurance — notice of accident to insurer — delay unjustified — failure to find insurer not prejudiced Evidence that plaintiff insurer was not notified of defendant insured's possible involvement in a collision of 6 April 1978 until 3 May 1978 and evidence of the circumstances of the case was sufficient to support the trial court's determination that defendant's delay was unjustified, but the trial court erred in failing to consider whether plaintiff was prejudiced by such delay where there was ample evidence that plaintiff had identified and obtained statements from all witnesses; plaintiff had available to it voluminous photographs of the scene which showed one of the vehicles still burning and the roadway after the accident; the accident report prepared by the investigating officer was accessible and newspaper accounts of the accident were obtainable; and statements obtained by plaintiff from witnesses were substantially the same as statements the witnesses had given the investigating officer shortly after the collision and plaintiff was therefore not prejudiced because it was unable to contact witnesses immediately after the accident when everything was fresh in their minds.<page_number>Page 428</page_number>

1. Divorce and Alimony 25.10 — modification of custody order sought — no showing of changed circumstances Evidence was sufficient to support the trial court's findings that the parties' children who resided with plaintiff were healthy, above average in school, properly cared for, and happy in their environment, and that defendant had failed to show any substantial change of circumstances warranting modification of an earlier order giving custody to plaintiff. 2. Divorce and Alimony 24.8 — child support increased — insufficiency of findings The trial court erred in increasing the amount of child support defendant was required to pay without first making findings as to actual past expenditures for the children, present reasonable needs of the children, and present expenses of plaintiff and defendant. 3. Divorce and Alimony 27 — child support order vacated — order awarding attorney fee also vacated Because the order increasing child support payments is being vacated, the order awarding plaintiff attorney's fees must also be vacated, and the question of attorney's fees must be reconsidered only when and if the issue of whether plaintiff is entitled to an award of increased child support is determined in her favor. 4. Divorce and Alimony 25.3 — child custody — children's statements to third persons — exclusion as hearsay — children not permitted to testify The trial court in a child custody proceeding properly excluded as hearsay statements allegedly made by the children to third parties, and the court did not abuse its discretion in refusing to place the children on the witness stand to testify as to where they wanted to live and why.

Constitutional Law 24.7; Process 9.1 — goods delivered outside N.C. — nonresident defendants — insufficient minimum contacts for in personam jurisdiction The courts of this State had jurisdiction under G.S. <cross_reference>1-75.4</cross_reference> (5)(d) of an action to recover the purchase price of goods shipped by plaintiff from North Carolina to defendants in South Carolina. However, the nonresident defendants had insufficient minimum contacts with this State so that the assumption of in personam jurisdiction over defendants by the courts of this State would violate due process where defendants dealt with plaintiff on only one other occasion prior to the transaction in question; the purchase in issue involved only<page_number>Page 528</page_number> $2,700; defendants have not been within North Carolina for at least two years; the order was solicited by plaintiff and accepted by defendants in South Carolina; payment by check for the goods was made to the driver of plaintiff's delivery truck and payment on the check was stopped through a bank in North Carolina; defendants have never done business in or engaged in solicitation or mail order sales within North Carolina; and defendants have not taken any action to avail themselves of the benefits and protection of the laws of North Carolina.

Criminal Law 84; Searches and Seizures 3 — civilian trial of Army officer — seized evidence — participation by military authorities — Posse Comitatus Act A violation of the Posse Comitatus Act, <cross_reference>18 U.S.C. § 1385</cross_reference>, does not require the exclusion of evidence thereby obtained from a civilian criminal trial. Furthermore, there was no violation of the Posse Comitatus Act where such part as an Army Criminal Investigation Division agent and other Army personnel played in connection with a civilian investigation of the illegal drug activities of defendant, an officer in the U.S. Army, was at all times passive, and there was no use of "any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws" as prohibited by the Act.

1. Trial 3.2 — continuance — absent defendant — motion properly denied Defendants failed to show sufficient grounds to require granting of their motion for continuance where the motion was unsupported by affidavit; defendants contended in their oral motion that one defendant was unavailable for an evidentiary hearing due to a previous commitment related to his profession; and, though argued in the brief that only the absent defendant could testify to circumstances surrounding a check in question, there was no evidence to this effect in the record. 2. Rules of Civil Procedure 43 — hearing on motion for relief from judgment — evidence limited to oral testimony Defendants failed to show that the trial judge abused his discretion in directing that an evidentiary hearing on defendants' motion for relief from default judgment should be heard wholly on oral testimony. G.S. <cross_reference>1A-1</cross_reference>, Rule 43 (e).<page_number>Page 552</page_number> 3. Rules of Civil Procedure 55.1; Appearance 1.1 — negotiation of continuance as appearance — setting aside default judgment proper In an action to recover for breach of contract for the construction of a mobile home park, defendant made an appearance when he negotiated continuance of the action in order to gain time to comply with the contract; therefore, the trial court's action in voiding the prior default judgment entered by the clerk was proper both on the ground that defendant had appeared and on the ground that plaintiff's claim was not for a sum certain or for a sum which could by computation be made certain. 4. Rules of Civil Procedure 55.1 — entry of default — refusal to set aside — no abuse of discretion In an action to recover for breach of a contract to construct a mobile home park, the trial court did not abuse his discretion in failing to set aside entry of default where defendant presented no evidence of the activity of an attorney on their behalf and no evidence of an accord and satisfaction, both of which they had cited in support of good cause; contrary to an accord and satisfaction, the trial court found that a check was given to plaintiffs on 7 July 1977 as the quid pro quo for plaintiff's agreement to continue the cause until the next term of court; and although this agreement may have been good cause for defendant's default from the time of the agreement until the next term of court, no evidence was presented showing good cause from the expiration of that agreement to the entry of default on 8 November 1978. 5. Rules of Civil Procedure 55.1 — motion to set aside default — jurisdiction of court to enter default judgment When defendants made a motion to set aside the clerk's entry of default and default judgment, the trial court was not limited to a review of the action of the clerk, but was vested with jurisdiction to hear and determine all matters in controversy and render such judgment or order within the limits provided by law, including default judgment, and that principle would apply even though the order by the clerk was a nullity. 6. Rules of Civil Procedure 55 — default judgment — waiver of notice requirement Where defendants, an appearing party, have brought the matter in controversy before the trial court as a result of their motion to set aside the clerk's order entering default, and there has been a full inquiry, defendants have in effect waived the notice requirement of G.S. <cross_reference>1A-1</cross_reference>, Rule 55 (b)(2) and are not entitled to further notice prior to entry of default judgment.

1. Rules of Civil Procedure 56 — amendment of case number on motion for summary judgment The trial court did not err in permitting plaintiff to amend her motion for summary judgment by correcting the file number shown in the<page_number>Page 559</page_number> caption thereof where plaintiff had used the file number of a prior case between the parties, at the time the motion was served the present case was the only case pending between the parties, and the notice attached to the motion and the contents of the motion clearly indicated that the motion was directed to the present case. 2. Judgments 37.3 — amounts owed under separation agreement — earlier judgment res judicata as to defenses In an action to recover alimony owed under a separation agreement, defendant's defenses that the separation agreement was invalid because of duress on the part of plaintiff and because of a material breach by the plaintiff were barred under the doctrine of res judicata by a consent judgment entered in an earlier action between the same parties to recover an amount then due under the same separation agreement. However, the earlier consent judgment was not res judicata as to alleged breaches of the agreement by plaintiff which arose subsequent to the consent judgment and could not have been brought forward in the first suit.

Insurance 67.2 — death by accident — insured killed while struggling over gun In an action to recover under an insurance policy providing coverage for the death of the insured by accident, the evidence on motion for summary judgment presented an issue of material fact as to whether insured's death was caused by accident or whether it was instead a foreseeable result of his own conduct where it tended to show that insured struck his estranged wife and pointed a gun at her during an argument; insured and his wife struggled over the gun; the wife picked up the gun when it fell to the floor; the gun went off when insured lurched toward his wife, killing insured; and insured had pointed a gun at his wife on previous occasions but his wife did not struggle or resist on any of those occasions.

1. Mortgages and Deeds of Trusts 19.1 — default in payment on note — acceleration of debt — no notice of default required Language in a note and deed of trust by which respondent mortgagor obligated itself provided that there was a right of acceleration and foreclosure upon the failure of the mortgagor to pay principal, interest, taxes, charges and assessments within thirty days from the date due without regard to notice, but there was no such right upon the failure of the mortgagor to comply with the provisions requiring it to maintain insurance or to comply with the other covenants and agreements between the parties unless written notice was given and thirty days had elapsed since the giving of the notice; therefore, the<page_number>Page 655</page_number> mortgagee had no duty to give written notice to the mortgagor of default in the payment of the annual installments of principal and interest, and the mortgagee's acceleration of the debt and the trustee's commencement of foreclosure proceedings after the mortgagor's failure to pay the amount due on its annual installment within thirty days of its due date were fully authorized under the parties' agreement. 2. Mortgages and Deeds of Trust 19.1, 25 — acceleration of debt — good faith irrelevant — exercise of power of sale upon default in payments proper There was no merit to mortgagor's contention that, pursuant to G.S. 25-1-208, mortgagee's lack of good faith in its decision to accelerate the debt precluded it from exercising the power of sale contained in the deed of trust since the statute relied upon by mortgagor imposes a good faith requirement upon the exercise of a secured creditor's option to accelerate "at will" or "when he deems himself insecure," but the right of acceleration upon which mortgagee's rights depended in the present case was conditioned upon the occurrence of an event within the complete control of the debtor, i.e., compliance with the terms and conditions contained in the note and deed of trust. 3. Mortgages and Deeds of Trust 25; Jury 1 — foreclosure under power of sale — no right to jury trial No trial by jury is required in hearings conducted under G.S. <cross_reference>45-21.16</cross_reference>, since that statute was intended by the legislature to meet minimum due process requirements, not to engraft upon the procedure for foreclosure under a power of sale all the requirements of a formal civil action; the statute refers to appeal "to the judge of the . . . court having jurisdiction"; and the right to trial by jury applies only to cases in which the prerogative existed at common law or was granted by statute at the time the N.C. Constitution was adopted, and forclosure by power of sale does not fall into that category.

1. Negligence 5; Sales 23 — exploding flashcube — no strict liability The doctrine of strict liability does not apply in an action to recover for injuries from an exploding flashcube since the doctrine applies only in cases involving dangerous instrumentalities, and a flashcube is not a dangerous instrumentality. 2. Negligence 31; Sales 22.2 — exploding flashcube — failure to show negligence by seller — res ipsa loquitur inapplicable In an action to recover for injuries resulting from the explosion of a flashcube sold to plaintiff by defendant, plaintiff failed to show negligence on defendant's part where she offered no evidence of similar occurrences, and the doctrine of res ipsa loquitur was inapplicable since defendant did not have exclusive control and management over the flashcube. 3. Sales 5.1 — no express warranty of flashcube A cautionary warning on a package of flashcubes about damaged bulbs shattering or causing static electricity and directions on how to get a replacement when a bulb failed to flash did not constitute an express warranty of the flashcube.<page_number>Page 688</page_number> 4. Sales 6.1; Uniform Commercial Code 12 — exploding flashcube — breach of warranty of merchantability In an action to recover for injuries resulting from the explosion of a flashcube sold to plaintiff in defendant's store, plaintiff's evidence was sufficient for the jury on the issue of defendant's breach of implied warranty of merchantability where it tended to show that plaintiff purchased the flashcube in a sealed package and placed it in her purse where it remained for about nine days before use; at the time of use one flashcube with four flashes contained in the same package was used without incident; the flashcube which exploded was then placed on the camera and exploded when used the first time; the flashcube did not appear defective or abnormal at any time from when purchased to when used; nothing occurred between the purchase and use to indicate that plaintiff mishandled, damaged or altered the flashcube; and the camera was used with flashcubes without problems both before and after the explosion. G.S. <cross_reference>25-2-314</cross_reference> (2).

1. Accounts 2 — account stated — extent of agreement in question The trial court erred in entering summary judgment for plaintiff in an action to recover the amount allegedly owed by defendant for the purchase of petroleum products where there was a material question of fact as to whether a meeting between the parties resulted in an account stated as to the totality of the transaction between the parties or only as to the balance of plaintiff's ledger sheets. 2. Accord and Satisfaction 1; Compromise and Settlement 5 — disputed account — cashier's check tendered — acceptance In an action to recover on an account, plaintiff's retention of a cashier's check tendered by defendant, though the check was not deposited, was sufficient acceptance of a lesser amount than plaintiff claimed was due it to result in an accord and satisfaction or compromise and settlement, and if the jury found that the account between the parties was unliquidated or that it was liquidated but there was new consideration for the acceptance of the check, plaintiff was barred from further recovery.

1. Deeds 11.1 — parol evidence contradicting terms of deed — exclusion proper The trial court did not err in refusing to allow parol evidence to contradict or modify the terms of a deed or create a reservation of the property by parol where the evidence tended to show that the deed in question was prepared by plaintiffs' attorney in whom they testified they had complete trust; plaintiffs signed the deed without reading it; it must be assumed that plaintiffs signed the instrument they intended to sign; and there was no evidence of mental incapacity, mutual mistake of the parties, undue influence, or fraud. 2. Deeds 8, 16.2 — land conveyed for construction of health center — consideration — condition subsequent Provision in a deed from plaintiff physician and his wife to defendant county that defendant would begin construction of a public health center on the land within one year or the land would revert to plaintiffs was sufficient to state consideration and to create a condition subsequent. 3. Reformation of Instruments 7 — reverter clause omitted from deed — no mutual mistake — reformation properly denied The trial court did not err in refusing to reform a deed by which plaintiffs conveyed property to defendant for the purpose of constructing a public health center on the basis of mistake, where plaintiffs claimed that the deed should have included a clause which would provide for reverter if defendant ceased to use the land for a public health center, but defendant contended the deed stated exactly what it meant for it to state, and there was therefore no mutual mistake.

Divorce and Alimony 16.10 — alimony order voided by resumption of marital relationship An order requiring defendant to pay alimony to plaintiff was voided when the parties resumed the marital relationship.<page_number>Page 820</page_number>

1. Insurance 135.1 — fire insurance — fire caused by church member — insurer not subrogated to rights of repairer or mortgagee Plaintiff insurer was not entitled to recover from defendant, a church member whose purported negligence caused the fire in question, on the ground that plaintiff was the subrogee of the company which repaired the fire damage and the mortgagee, since the repair company had no rights against defendant to which plaintiff might be subrogated, and since the mortgagee had rights against defendant, but plaintiff was not entitled to be subrogated to those rights.<page_number>Page 827</page_number> 2. Insurance 136.1; Religious Societies and Corporations 3.2 — fire insurance — fire caused by church member — no right of church to sue member — no right of insurer to sue member An unincorporated church may not sue one of its members for damages caused by the member's tortious conduct; therefore, because a church could not sue defendant, one of its members, whose purported negligence caused the fire in question, plaintiff insurer, as subrogee of its insured, the church, had no right to recover from defendant the amount paid the church under its fire insurance policy.

Negligence 57.11 — customer tripping over fallen sign — absence of negligence — contributory negligence In an action to recover for injuries sustained by plaintiff when she tripped over a fallen sign at defendant's restaurant, plaintiff's forecast of evidence on motion for summary judgment failed to show negligence on the part of defendant and disclosed that plaintiff was contributorily negligent as a matter of law where it showed that the front door of the restaurant was held open by a sign on a tripod; while in the restaurant plaintiff told her husband that the sign had blown down but did not tell any of defendant's employees; none of the employees knew the sign had fallen; plaintiff left the restaurant 10 minutes later but forgot about the fallen sign and tripped over it and fell; and the day was clear and the sign was not concealed in any way.

Venue 5.1 — action involving real property — county where land located as proper venue In an action by plaintiff lessees to have the court declare that they held a leasehold interest in a space in a trailer park, defendant was entitled to a change of venue as a matter of right to the county where the property in question was located. G.S. <cross_reference>1-76</cross_reference>.