Volume 47 — North Carolina Court of Appeals Reports

Jury 1.3; Rules of Civil Procedure 38 — permanent alimony — jury trial — waiver by failure to appear In addition to the waiver of right to jury trial established by G.S. <cross_reference>1A-1</cross_reference>, Rules 38 (d) and 39 (a), a party may waive his right to a jury trial by failing to appear at trial. Therefore, plaintiff waived his right to a jury trial in a hearing on permanent alimony by his failure to appear at the hearing either personally or by counsel. The decision of Heidler v. Heidler, <cross_reference>42 N.C. App. 481</cross_reference>, is overruled insofar as it is inconsistent with this opinion.

Master and Servant 108 — unemployment compensation — resignation from work — good cause attributable to employer Claimant voluntarily left work as a county social worker for good cause attributable to her employer and was thus entitled to unemployment compensation where she resigned her position because she was instructed by her supervisor to initiate custody proceedings for certain children after she had secured voluntary, revocable Board Home Agreements from the mothers to place their children in the temporary custody of others upon her assurances to the mothers that the children would be returned to the mothers upon<page_number>Page 164</page_number> request, and because she felt that the actions she was required to take violated the ethical standards of her profession.

1. Negligence 5; Sales 22 — chemical which can cause serious injury upon skin contact — dangerous instrumentality — liability of manufacturer under negligence theory A chemical which, when it comes in contact with the skin of a human being not subject to rare allergenic responses, can cause serious bodily injury, illness or death to a human being is a dangerous instrumentality or substance, and the manufacturer of the dangerous<page_number>Page 238</page_number> substance will be subject to liability under a negligence theory for damages which proximately result from the failure to provide adequate warnings as to the product's dangerous propensities which are known or which by exercise of care commensurate with the danger should be known by the manufacturer, or from the failure to provide adequate directions for the foreseeable user as to how the dangerous product should or should not be used with respect to foreseeable uses. 2. Sales 8 — implied warranty — contractual privity Plaintiff's claim for breach of implied warranty of a carburetor and metal cleaner manufactured by defendant was barred by the lack of contractual privity between the plaintiff and defendant manufacturer. 3. Sales 5.1 — label on product — insufficiency to establish express warranty The label on a can of Petisol 202, a carburetor and metal cleaner manufactured by defendant, was insufficient to create an express warranty that the product would not be harmful when exposed to the skin on the user's arms. 4. Negligence 5.2; Sales 22.1 — death from chemical product — no liability by distributors Plaintiff stated no claim for relief against defendant distributors for negligence in the death of plaintiff's intestate allegedly caused by a product distributed by defendant where plaintiff alleged that the product was manufactured and packaged by another, and plaintiff alleged no facts to show any exception to the general rule that the seller of a product manufactured by another who does not know or have reason to know that the product is or is likely to be dangerously defective has no duty to test or inspect it, especially where the product is sold in its original package as it came from the manufacturer and the seller acts as a mere marketing conduit between producer and consumer. 5. Sales 5.1; Uniform Commercial Code 10 — warranty not created through advertising Defendant NAPA did not through its advertising create either an express or implied warranty that Petisol 202 was safe for human use where the Petisol 202 in question was merely sold by a retailer who also sells NAPA approved products, and Petisol 202 was not a NAPA line and did not bear the NAPA trade name or mark. 6. Uniform Commercial Code 12 — implied warranties — employees or purchasers G.S. <cross_reference>25-2-318</cross_reference> does not contemplate extending implied warranties to employees of purchasers.

1. Limitation of Actions 4.3 — breach of contract — accrual of cause of action — action not barred by statute of limitations Plaintiff's action to recover for breach of contract was not barred by the three year statute of limitations, though the action was brought more than three years after the consent judgment embodying the contract was signed since, at the time the consent judgment was signed, no breach of contract had yet occurred, and whether the breach occurred at the time construction of a dam and pipe by defendant on plaintiff's property was completed in October 1975 or early 1976, or at the time the overall highway construction project was completed in July 1977, plaintiff's action filed in February 1978 was brought within the applicable three year period. 2. Contracts 26 — construction of dam and pipe system — problems with system — repairs — admissibility of evidence In an action to recover for breach of contract to construct a dam and pipe system to carry water from the dam to plaintiff's mill, the trial court erred in permitting plaintiff's expert witness to testify that the system would never deliver enough water to the mill to turn the water wheel because the size of pipe used was too small, since such testimony directly contradicted the parties' contract which unambiguously specified that pipe 30 inches in diameter should be installed; the court did not err in permitting the witness to testify that the dam as constructed by defendant needed to be raised and that the cost would be $4000 to $5000, since such testimony was relevant not only to the issue of breach of contract but also to the issue of what would be required to conform the system to the contract and the cost thereof; the trial court erred in permitting the witness to testify concerning the necessity for a "filtering system and flow straightening system" at the entrance to the pipe at the dam, since such testimony was irrelevant to the issues and actually contradicted the express terms of the contract which contemplated a filtering system consisting only of a grate that would prevent foreign objects over three inches in diameter from entering the pipeline; and the trial court erred in permitting the witness to testify that a sweeping radius pipe was necessary to replace the open raceway area between the 30 inch pipe installed by defendant and the old 30 inch pipe running towards the mill under the old highway, since the agreement was ambiguous as to whether the parties intended that a pipeline be constructed the entire distance from the new dam to the mill, and it was for the jury to determine whether the contract so required. 3. Contracts 27.2 — construction of dam and pipe system — breach of contract — sufficiency of evidence In an action to recover for breach of contract, the trial court did<page_number>Page 262</page_number> not err in denying defendant's motion for directed verdict since ample evidence was presented from which the jury could infer that the dam and pipe system as constructed did not substantially conform to the terms of the agreement contained in the consent judgment in that the exit end of the new pipeline was higher than the level of the dam and a slide gate to the dam which was broken during construction was never properly repaired.

1. Homicide 12 — indictment for second degree murder — allegation of malice aforethought not required There was no merit to defendant's contention that the bill of indictment for murder in the second degree should be quashed because it did not contain the word "aforethought" modifying malice, since malice aforethought is required to prove murder in the first degree but is not an element of murder the second degree. 2. Indictment and Warrant 1 — indictment unaffected by charge at preliminary hearing There was no merit to defendant's contention that the State should be estopped from prosecuting him on the charge of second degree murder because the district court judge failed to find probable cause on the murder charge and bound defendant over for trial only on a charge of manslaughter, since the actions of a grand jury are not limited by the charges presented or determined at a probable cause hearing in the district court. 3. Homicide 21.7 — second degree murder — sufficiency of evidence Evidence was sufficient for the jury in a prosecution for second degree murder where it tended to show that defendant was living with deceased's wife in a motel room; upon seeing deceased's truck hit his jeep, defendant took a loaded .12-gauge shotgun and went out of the motel before deceased had gotten out of his vehicle; deceased had only a tire tool, eighteen inches long, in his possession; these events happened in the daytime; defendant shot deceased while he was behind a vehicle some 22 feet away; and there was no evidence deceased was assaulting or threatening to assault defendant in any way. 4. Homicide 3 — tire tool — no deadly weapon as matter of law The trial court in a second degree murder case properly refused to instruct the jury that a tire tool found in deceased's possession was a deadly weapon as a matter of law. 5. Homicide 28.3, 28.4 — second degree murder — deceased as aggressor — defense of habitation — no instructions required The trial court in a second degree murder case was not required to instruct the jury as a matter of law that deceased was the aggressor under the facts of this case, nor was there any evidence to require a specific instruction that defendant could defend his habitation, a motel room, in order to prevent a forcible entry. 6. Criminal Law 102.1 — State's jury argument — no prejudice to defendant Defendant was not prejudiced by jury arguments of counsel for the<page_number>Page 281</page_number> State since defendant failed to object to some of the arguments at the time they were made; defendant's objections to several of the arguments were sustained and any prejudice to defendant was therefore removed; and the cumulative effect of the contested parts of counsel's arguments was not sufficiently prejudicial to require a new trial.

1. Embezzlement 5 — references to defendant as "employee" — no invasion of province of jury In a prosecution for embezzlement in which defendant contended that he was an independent contractor, testimony referring to defendant as an "employee" of the State's witnesses did not invade the province of the jury since the embezzlement statute, G.S. <cross_reference>14-90</cross_reference>, requires the establishment of an agency relationship; the question which determined the nature of the relationship between the defendant and the State's witnesses was the ownership of the money in question at the time it came into the hands of defendant; and the reference to defendant as an employee therefore did not infringe upon the jury's responsibility of determining whether defendant was an independent contractor. 2. Embezzlement 6 — sufficiency of State's evidence The State's evidence was sufficient for the jury in a prosecution for embezzlement where it tended to show that defendant was to procure contracts with retail businesses for promotional services to be rendered by a firm owned by the State's witnesses; defendant was to receive money for such contracts, deliver the money to one State's witness, and receive a commission on the price, or, as later agreed upon, keep any money over a set price; and defendant did receive such money which he did not deliver to the State's witness. 3. Criminal Law 102 — permitting only one jury argument by defendant — no violation of statute The purpose of G.S. <cross_reference>84-14</cross_reference> was not to enlarge the number of addresses to the jury but was to limit the number of counsel and the time allowed a defendant's counsel in addressing the jury. Therefore, the trial court did not violate the statute in permitting a defendant who introduced evidence to present only one jury argument.

Municipal Corporations 30.9 — spot zoning The rezoning of an 11.42 acre tract from a residential classification to a light industrial classification constituted spot zoning where the surrounding area was zoned residential, and no reasonable basis for the spot zoning existed because a substantial portion of the tract was too low for residential development or because two roads bordered portions of the tract.

1. Master and Servant 74 — workers' compensation — disfigurement — post mortem award to dependents The dependents of a deceased employee who suffered a serious bodily disfigurement due to an accident covered by the Workers' Compensation Act but who died due to an unrelated cause are entitled to a post mortem award for serious bodily disfigurement based on the best possible medical estimate as to the probable residual disability that would have remained had the employee lived to complete his healing period, notwithstanding the employee had not filed a workers' compensation claim for disfigurement before he died. 2. Master and Servant 74 — workers' compensation — disfigurement — post mortem award — necessary findings A proceeding to recover an award for serious bodily disfigurement suffered by an employee in a compensable accident before his death from an unrelated cause is remanded for findings as to (1) the state of the employee's recovery at the time of his death; (2) the best possible medical estimate of the probable residual disability which would have remained had the employee lived; and (3) a determination of the effect such disability would have had upon the employee's capacity to earn a living.<page_number>Page 435</page_number>

1. Master and Servant 10 — employment contract — duration not specified — contract terminable at will In an action to recover on an employment contract which plaintiff alleged was to be for a period of three years, plaintiff's complaint was insufficient to state a claim for relief where the time specified in the parties' agreement did not set out a definite term of employment but merely set out a formula for crediting the override account, and the contract was therefore for an indefinite period, and was terminable at the will of either party. 2. Rules of Civil Procedure 41 — motion to dismiss — hearing not conducted as summary judgment hearing There was no merit to plaintiff's contention that the trial court treated defendant's motion to dismiss under G.S. <cross_reference>1A-1</cross_reference>, Rule 12 (b)(6) as a hearing on a motion for summary judgment without giving plaintiff proper notice or a reasonable opportunity to present pertinent evidence, since the trial judge, by asking plaintiff if he desired to present additional evidence or amend his complaint, was doing nothing more than offering plaintiff an opportunity to correct a defective complaint; and there was no matter in the record outside of the pleading which the trial court was considering at that time. 3. Rules of Civil Procedure 56.1 — notice of summary judgment hearing waived There was no merit to defendant's contention that he was entitled to 10 days' notice of a hearing on a motion to dismiss pursuant to Rule 12 (b)(6) because it was conducted as a hearing on a motion for summary judgment, since plaintiff attended the hearing, made no motion to continue, freely participated in the hearing, and thereby waived any procedural notice required. 4. Rules of Civil Procedure 41 — dismissal with prejudice — no abuse of discretion The trial court did not abuse its discretion in dismissing plaintiff's action with prejudice where the court gave plaintiff an opportunity to amend his complaint or to offer evidence, and plaintiff declined.<page_number>Page 441</page_number>

1. Indictment and Warrant 17.2, 17.3 — variance as to time and place of offense There was no fatal variance between an indictment charging defendant with felonious possession of a stolen trailer in Duplin County on 21 January 1979 and evidence showing defendant possessed the trailer in Columbus County on 18 February 1979 since (1) defendant presented alibi defenses relating to 21 January and 18 February and therefore did not rely on the date charged in the indictment; (2) defendant was not misled by the allegation of possession in Duplin County because the allegation of place was not descriptive of the offense of felonious possession of stolen property; and (3) the allegation of the county where the offense occurred was essentially one of venue, and the allegation of venue became conclusive under G.S. <cross_reference>15A-135</cross_reference> when defendant failed to make a timely motion to dismiss for improper venue. 2. Receiving Stolen Goods 6 — possession of stolen goods — date of possession — erroneous instruction — alibi Where there was evidence tending to show that defendant possessed a stolen trailer on 18 February 1979 but no evidence that he possessed the trailer on 21 January, the date alleged in the indictment, the trial court erred in submitting the question of defendant's guilt of felonious possession on the date charged in the indictment rather than the date shown by the evidence, since the instruction permitted the jury to convict defendant of possession on a date about which there was no evidence and deprived defendant of the benefit of his alibi because it allowed the jurors to convict even if they believed defendant's alibi for the date on which the State's evidence shows possession occurred.<page_number>Page 447</page_number>

1. Master and Servant 111.1 — unemployment compensation — failure to apply law to "other facts in evidence" — erroneous reversal of decision The superior court erred in reversing a decision of the Employment Security Commission on the ground that the Commission did not properly apply the law to the facts found by the Commission "and other facts in evidence" since the reviewing court may not consider the evidence for the purpose of finding the facts for itself, and if the findings made by the Commission, even though supported by competent evidence in the record, are insufficient to enable the court to determine the rights of the parties upon the matters in controversy, the proceeding should be remanded to the end that the Commission make proper findings. 2. Master and Servant 108 — unemployment compensation insurance — racial discrimination by employer — necessity for findings Had claimant left her job because of racial discrimination practiced against her by her employer, she would have had good cause attributable to her employer and so would not have been disqualified for unemployment compensation benefits. Claimant's evidence was sufficient to raise a factual issue which the Employment Security Commission was required to resolve where it tended to show that claimant had been employed in the merchandise records section of a department store for three years; she had worked under five different supervisors; she was the only black in the section; and she felt that she had been discriminated against because of her race in not being promoted to supervisor and not being given more pay.

Wills 16 — orphanage not taking under will — no standing to file caveat The trial court properly dismissed a caveat by an orphanage on the ground that caveator had no standing pursuant to G.S. <cross_reference>31-32</cross_reference> to file a caveat, since the orphanage was not entitled to take under the will or codicil of testator, and the orphanage did not have some pecuniary or beneficial interest in the estate that was detrimentally affected by the will.

1. Landlord and Tenant 6.1 — leased spaces in trailer park — facilities and services furnished under lease — credibility of witnesses in issue — directed verdict improper In an action to recover damages for breach of agreements under which defendants leased spaces in a trailer park to plaintiffs', the trial court erred in directing verdict for plaintiffs since issues of credibility were raised where the evidence tended to show that some of the plaintiffs had previously had written leases; other plaintiffs had never had written leases but had moved into and remained at the park only under oral agreements that they pay monthly rental; none of the plaintiffs relied upon a written lease agreement; to establish the nature and extent of defendants' agreements to furnish facilities and services in exchange for the payment of monthly rental, plaintiffs presented evidence of newspaper advertisements, rules and regulations promulgated by defendants, and oral representations made by park managers and employees; and to establish defendants' breach of agreements, plaintiffs presented their own testimony and that of other witnesses. 2. Trusts 19 — mobile home parts retained by defendants — insufficiency of evidence of constructive fraud In an action to recover for mobile home wheels, tires, and axles which defendants allegedly wrongfully sold or converted to their use, the trial court erred in imposing a constructive trust and in directing verdict that defendants had breached the trust, since evidence presented by defendants, if believed, would tend to show that the contested tires, wheels, and axles were never included in the original sales of mobile homes to plaintiffs; evidence presented by plaintiffs, if believed, would tend to establish either that the defendants had failed to deliver the contested items as agreed at the time of the original sales of the mobile homes or that, although delivered at that time, they were later retained by defendants and stored in another area of the trailer park; and therefore no constructive trust arose on this evidence. 3. Unfair Competition 1 — unfair or deceptive trade practice — rental of mobile home spaces — trade or commerce Rental of spaces in a mobile home park is trade or commerce within the meaning of G.S. <cross_reference>75-1.1</cross_reference>.<page_number>Page 531</page_number> 4. Unfair Competition 1 — single course of conduct — breach of contract — unfair and deceptive trade practice — damages for both improper Where the same course of conduct gives rise to a traditionally recognized cause of action, as, for example, an action for breach of contract, and as well gives rise to a cause of action for violation of G.S. <cross_reference>75-1.1</cross_reference>, damages may be recovered either for the breach of contract or for violation of G.S. <cross_reference>75-1.1</cross_reference>, but not for both. 5. Unfair Competition 1 — furnishing services in trailer park — no bad faith — no unfair or deceptive trade practice — treble damages inappropriate Absent a finding of some bad faith, the jury's answer as to whether defendant, without the intent or ability to perform, led plaintiffs to believe that he would provide certain facilities in a trailer park would not support a violation of G.S. <cross_reference>75-1.1</cross_reference> and an award of treble damages under G.S. <cross_reference>75-16</cross_reference>. 6. Unfair Competition 1 — treble damages sought by private party — good faith relevant Although good faith may be irrelevant where injunctive relief is sought by the Attorney General under G.S. <cross_reference>75-14</cross_reference>, it should be relevant where a private party seeks treble damages under G.S. <cross_reference>75-16</cross_reference>.

1. Criminal Law 92.3 — failure to join charges — no error The trial court did not err in denying defendant's motion to dismiss for failure to join related offenses where the indictments in the present case were returned against defendant after two mistrials had been entered, and there could have been no joinder of offenses because, when the first offenses were tried, there was no other offense to join with the first.<page_number>Page 555</page_number> 2. Criminal Law 92.3 — motion to dismiss for failure to join offenses — offense as indictment As used in G.S. <cross_reference>15A-926</cross_reference> (c)(2), which requires the granting of a defendant's motion to dismiss a charge of a joinable offense when he has been tried for one offense and has made a timely motion to dismiss, the word "offense" may be construed to mean "indictment." 3. Criminal Law 34.5 — defendant's guilt of other offenses — admissibility to show identity In a prosecution for sale and delivery of heroin, the trial court did not err in admitting into evidence testimony concerning charges of misconduct by defendant several days after the crime with which he was charged, since such evidence was admissible to prove the identity of defendant. 4. Conspiracy 6 — conspiracy to sell and deliver heroin — sufficiency of evidence In a prosecution for conspiracy to sell and deliver heroin, evidence was sufficient to be submitted to the jury where it tended to show that two undercover narcotics agents met defendant at his address and went with him in a car to another house; there defendant met with a person and briefly conversed with him; and that person handed defendant a small package of heroin which defendant then sold to one of the agents. 5. Criminal Law 86.4 — cross-examination of defendant — other offenses — impeachment Defendant who was charged with narcotics offenses could properly be asked if he filed income tax returns for a given year, since a defendant may be cross-examined for impeachment purposes as to other criminal or degrading conduct; moreover, defendant had already answered the question once in the absence of an objection by his counsel, thereby curing any possible error in its admission. 6. Criminal Law 113.1 — court's recapitulation of evidence — no error Defendant was not prejudiced by the trial court's recapitulation of the evidence that after defendant met with another person and had a brief conversation with him, the other person handed defendant a small tinfoil package and defendant in turn handed the package to an undercover narcotics agent, since defendant's counsel did not call to the court's attention any error; the evidence did show that defendant was handed a tinfoil package which he then handed to the agent; and the court cautioned the jury to take the evidence as they recalled it and not as he summarized it for them. 7. Criminal Law 122.2 — failure of jury to reach verdict — instructions not prejudicial When the jury informed the court that it was divided ten to two, the court's response that the jury could continue to deliberate that night, could return to deliberate the next day, and had two more days in which deliberations could take place did not coerce the jury into reaching a decision particularly in light of the court's instruction the following morning that the jury should reach a unanimous verdict<page_number>Page 556</page_number> if possible without surrendering their conscientious convictions; furthermore, the court's instruction that a disagreement meant "that if this case is not brought to a verdict as I previously instructed you that another judge and another jury in another week will try this case again" was not erroneous since an isolated mention of the necessity to retry the case does not warrant a new trial unless the charge as a whole is coercive. 8. Criminal Law 122.1 — jury's request to have testimony read again — refusal not abuse of discretion The trial judge did not abuse his discretion in refusing to allow the jurors to have certain testimony read back to them after deliberations had begun, since the judge explained that the witness whose testimony was requested by the jury was one of a number of witnesses, and the court did not want to give special emphasis to any particular witness.

Automobiles 62.2, 83.4 — striking of pedestrian — negligence and contributory negligence In an action to recover for injuries received by plaintiff highway construction worker when he was struck by defendant's automobile while crossing the highway at a point beyond an intersection, plaintiff's evidence was sufficient to be submitted to the jury on issues of defendant's negligence in (1) failing to drive on the right side of the road in violation of G.S. <cross_reference>20-146</cross_reference> (a); (2) failing to decrease his speed to avoid colliding with a person on the highway in violation of G.S. <cross_reference>20-141</cross_reference> (m); (3) operating his automobile at an unreasonable speed under the conditions then and there existing in violation of G.S. <cross_reference>20-141</cross_reference>; (4) failing to reduce his speed as he entered an intersection in violation of G.S. <cross_reference>20-141</cross_reference>; (5) failing to warn plaintiff by sounding his horn in violation of G.S. <cross_reference>20-174</cross_reference> (e); and (6) failing to keep a proper lookout and to keep his automobile under proper control. Furthermore, plaintiff's evidence failed to show his contributory negligence as a matter of law but presented issues as to whether plaintiff was contributorily negligent in failing to yield the right-of-way and in stepping into the path of defendant's automobile.

Death 4 — wrongful death — action barred by statute of limitations Plaintiff's claim for wrongful death was barred by the six month limitation of G.S. <cross_reference>28A-19-3</cross_reference> (b)(2), since plaintiff's claim arose on 23 October 1976, the date of intestate's death, but plaintiff did not present his claim until some 15 months later.

Usury 4 — forfeiture of interest for usury — statute of limitations The two-year statute of limitations on the forfeiture of all interest for usury, G.S. <cross_reference>1-53</cross_reference> (3), begins to run at the time an agreement or charge for usurious interest is first made. Therefore,<page_number>Page 647</page_number> plaintiff's action for the forfeiture of all interest on a promissory note was barred by the statute of limitations where the note was signed on 7 June 1976 and the action was instituted on 21 August 1979.

1. Carriers 19.2 — sexual assault on bus passenger — action against carrier — type of area surrounding station In an action against a bus company to recover damages allegedly resulting from defendant's negligent failure to protect plaintiff passenger from sexual assault in the women's restroom of defendant's bus station, testimony that defendant's station was located in a high crime area, that bums, prostitutes, and their pimps frequented the bus station, that fights from area night clubs frequently spilled into the streets, that drug arrests were common in the neighborhood, and that some of these very same characters were loiterers-in-residence at defendant's bus station was competent to show defendant's knowledge of the need for insuring adequate protection of passengers going to, going from, and waiting in the bus station.<page_number>Page 681</page_number> 2. Carriers 19.2 — sexual assault on bus passenger — action against carrier — instruction on absence of denial that plaintiff sustained injury — harmless error In an action against a bus company to recover damages allegedly resulting from defendant's negligent failure to protect plaintiff passenger from sexual assault in the women's restroom of defendant's bus station, the trial court erred in instructing the jury that defendant did not deny that the plaintiff was a victim of a criminal assault at its Raleigh terminal "or that she sustained injury or damage" where defendant did not stipulate or admit that plaintiff sustained injury or damage from the assault. However, defendant was not prejudiced by such error where (1) the jury could not have been misled by the misstatement; (2) the trial court thereafter instructed that it was for the jury to determine whether plaintiff sustained injury or damage; and (3) the trial court summarized the contentions of both parties as to the issue of injury and damage. 3. Trial 32.2 — instruction to ignore previous charge on negligence issue There is no merit in defendant's contention that the trial court erred in instructing the jury to ignore its original instructions on the first issue of negligence because the jury could have disregarded the previously given instructions on the nature of the lawsuit, proximate cause, and the burden of proof. 4. Appeal and Error 50.2; Negligence 40 — instructions on proximate cause — use of "probable cause" The trial court's lapsus linguae in using the term "probable cause" instead of "proximate cause" in one instance in the charge was not prejudicial error. 5. Evidence 48; Damages 3.4 — permanency of psychological effects of sexual assault — testimony by clinical psychologist A clinical psychologist was not prohibited by the statute precluding the practice of medicine without a license, G.S. <cross_reference>90-18</cross_reference>, from testifying as to the permanency of psychological effects on plaintiff resulting from a sexual assault. Furthermore, the psychologist's testimony was not too speculative for admission, although she used the word "guess" in stating her opinion, where her opinion was not a mere guess but was a statement of probability. 6. Damages 3.4; Evidence 48 — expert testimony by psychologist — sufficient contact with plaintiff to provide basis for opinion A clinical psychologist's contact with plaintiff was not so minimal as to provide an insufficient basis for her opinion testimony as to the permanency of psychological effects on plaintiff from a sexual assault where the psychologist first saw plaintiff on 7 July 1976 approximately one month after the assault; subsequent meetings were held on 15 July 1976, 4 October 1976, 1 January 1979 and 2 February 1979; at the time of these meetings, plaintiff was suffering from severe mental damage and, in keeping with psychological practices in such cases, was being seen only upon request; and the trial court did not find that the psychologist's examinations of plaintiff were solely for trial purposes and not for treatment.<page_number>Page 682</page_number> 7. Carriers 19.2; Damages 3.4 — psychological and physical effects from sexual assault — compensable injury In an action against a bus company to recover damages allegedly resulting from defendant's negligent failure to protect plaintiff passenger from sexual assault in the women's restroom of defendant's bus station, plaintiff suffered a compensable injury where her evidence tended to show that, since the sexual assault on her, she has had difficulty sleeping, has had nightmares, has awakened at night afraid that some other person was in the room threatening to harm her, and has been unable to participate in or enjoy the sexual pleasures which she had previously experienced, since plaintiff has suffered a physical impact resulting in mental distress or emotional disturbance. 8. Damages 3.5, 17.5 — lost wages and reduced earning capacity — unemployed plaintiff In an action to recover for damages allegedly resulting from defendant bus company's negligent failure to protect plaintiff passenger from sexual assault in the women's restroom of defendant's station, the trial court did not err in instructing the jury on loss of wages and reduced capacity to earn because plaintiff was unemployed before the incident. 9. Carriers 19.2 — sexual assault on bus passenger — liability of carrier — standard of care The trial court's instruction that a common carrier must exercise the highest degree of care in foreseeing the imminence of a criminal assault on its passengers will not be held erroneous where such instruction is in accord with the rule stated in one line of prior N.C. cases, although another line of cases states that a carrier is only required to exercise ordinary or due care in foreseeing the imminence of a criminal assault on its passengers, since it is for the Supreme Court to determine which rule of law will govern when there is a conflict of rules. 10. Carriers 19.2; Evidence 42 — sexual assault on bus passenger — action against carrier — characterizations of persons observed around bus station — shorthand statements of fact — relevancy to show notice A witness's testimony that over a period of time he observed bums, winos and panhandlers hanging around a bus station and disturbing people was competent as a shorthand statement of fact and was relevant to show notice and knowledge by the bus company of the imminence of a sexual assault on a passenger in its station. 11. Carriers 19.2; Evidence 48 — expert in security — adequacy of carrier's security measures In an action to recover for damages allegedly resulting from defendant bus company's negligent failure to protect plaintiff passenger from sexual assault in the women's restroom of defendant's station, opinion testimony by an expert witness in the field of law enforcement and security as to the adequacy of defendant's security measures on the date of the sexual assault did not invade the province of the jury and was properly admitted.<page_number>Page 683</page_number> 12. Carriers 19.2 — sexual assault on bus passenger — action against carrier — evidence of need and availability of security guards and devices In an action to recover damages allegedly resulting from defendant bus company's negligent failure to protect plaintiff passenger from sexual assault in the women's restroom of defendant's station, testimony that an officer had talked to defendant's agents about the need for and the availability of security guards was competent to prove notice to and knowledge of the need for adequate security measures by defendant, and testimony concerning the availability of security devices was relevant to the issue of negligence. 13. Witnesses 5.2 — cross-examination of plaintiff — subsequent evidence of good character Plaintiff could properly present evidence of her good character after her credibility had been impeached by defendant's cross-examination of her. 14. Carriers 19.2 — sexual assault on bus passenger — negligence by bus company — sufficiency of evidence Plaintiff's evidence was sufficient for the jury on the issue of defendant bus company's negligence in failing to protect plaintiff passenger from sexual assault in defendant's station where it tended to show that plaintiff arrived at defendant's station by bus at 3:00 a.m.; while waiting in the women's restroom for her cousin to pick her up, she was forcibly compelled at knife point and against her will to submit to the sexual advances of a loiterer in the station; the assailant had bothered female passengers on other occasions as they waited in the bus terminal and had pulled a gun on defendant's employee when he sought to intervene on one occasion; the employee had run the assailant out of the station about fifty times prior to the assault on plaintiff; the assailant had also been asked to leave the station on other occasions by defendant's district manager and by its terminal manager; the entrance to the women's restroom was not observable by any of defendant's employees although technological means were available to permit such observations; pimps, prostitutes, transvestites, bums, winos and loiterers were allowed to linger in the bus station where they frequently pestered defendant's passengers and were out of view of defendant's employees; fights, narcotics arrests and criminal activities abounded in the neighborhood, and persons committing the crimes were free to enter and to leave the bus station at their discretion; a police officer had talked with defendant's agents about the need for and availability of security guards, but defendant had not instituted such measures; defendant's national security director had not issued any directive pertaining to securing the bus station, and defendant's local agents had in many instances failed to report incidents such as assaults in the bus station; since the assault plaintiff has difficulty sleeping, has nightmares, is unable to interact with people, takes valium to calm her nerves, and is unable to enjoy a normal sex life or affectionate embraces from male suitors; and plaintiff will suffer permanent psychological effects from the assault. However, such evidence was insufficient for submission to the jury of issues of willful and wanton negligence and punitive damages.<page_number>Page 684</page_number>

1. Searches and Seizures 12 — defendant sitting in automobile — investigatory stop or seizure In a prosecution for possession of marijuana, felonious breaking and entering a motor vehicle, and larceny of a pocketbook, there was no merit to defendant's contention that his initial detention by a police officer as he sat in his car in a church parking lot constituted a "forcible stop" or "seizure" of his person which violated his reasonable expectation of privacy, since the evidence tended to show that the officer received a call between 7:00 and 8:00 p.m. requesting him to investigate a "suspicious person" on the church premises; as he arrived he was directed by churchgoers toward defendant who was alone in an automobile parked in the corner of the lot; and the totality of the circumstances afforded the officer the basis of authority to approach defendant's automobile and direct defendant to roll down his window for the limited purpose of investigating a report that a suspicious person was on the premises. 2. Searches and Seizures 11 — marijuana odor in automobile — warrantless search of vehicle — probable cause An officer's warrantless search of defendant's automobile was based on probable cause and was therefore proper where the officer, trained in the identification of marijuana by its odor, detected the distinct odor of marijuana emanating from defendant's automobile, and it was reasonable for the officer to assume that the odor originated from defendant's vehicle and that the vehicle contained marijuana. 3. Arrest and Bail 3.4 — possession of controlled substance — warrantless arrest — probable cause Where an officer conducted a proper warrantless search of defendant's vehicle and found cigarette butts and a "roach clip" which apparently contained marijuana, the officer had probable cause to believe that defendant had committed the offense of possession of a controlled substance, and his warrantless arrest was therefore lawful.<page_number>Page 732</page_number> 4. Searches and Seizures 37 — pocketbook on rear seat of car — warrantless search incident to arrest for marijuana possession Search of a pocketbook found on the rear seat of defendant's automobile subsequent to defendant's warrantless arrest for possession of marijuana was improper, since the pocketbook was obviously a repository for personal items, and a warrantless search thereof was in violation of the Fourth Amendment prohibition against unreasonable searches and seizures.

1. Master and Servant 68 — worker's compensation — occupational disease — proof of causation One element of a claimant's right to compensation for an occupational disease under G.S. <cross_reference>97-53</cross_reference> (13) and G.S. <cross_reference>97-52</cross_reference> is proof of causation. 2. Master and Servant 68 — worker's compensation — occupational disease — necessary findings Where the Industrial Commission awards compensation for disablement due to an occupational disease encompassed by G.S. <cross_reference>97-53</cross_reference> (13) the opinion and award must contain explicit findings as to the characteristics, symptoms and manifestations of the disease from which the plaintiff suffers, as well as a conclusion of law as to whether the disease falls within the statutory provision; however, such findings should not be necessary upon the Commission's finding that the disease, whatever its manifestations and whatever its symptoms, was not due to causes or conditions characteristic of the particular employment in which the employee was engaged. 3. Master and Servant 68 — worker's compensation — finding that exposure to cotton dust not cause of disease — denial of claim A finding by the Industrial Commission that plaintiff textile worker's chronic obstructive pulmonary disease was not due to her exposure to cotton dust and lint in her employment with defendant employer provided a sufficient basis for the Commission's denial of compensation to plaintiff for an occupational disease. 4. Master and Servant 68 — worker's compensation — finding that exposure to cotton dust not cause of disease — sufficiency of evidence A finding by the Industrial Commission that plaintiff's chronic pulmonary disease "is not due to her exposure to cotton dust and lint in her employment with defendant employer" was supported by the evidence where plaintiff's expert witness testified that, although plaintiff had been employed in an area of cotton manufacturing in which the incidence of employment related chronic lung disease is highest, plaintiff did not exhibit the usual history of onset and progression symptoms classical for this problem, and where plaintiff's expert, in explaining his opinion testimony that plaintiff's respiratory disease "could or might have been caused by her occupational exposure," stated that his opinion referred to "possibility" rather than "probability." 5. Master and Servant 68 — workers' compensation — pulmonary problems — findings as to effect of weather The evidence supported a finding by the Industrial Commission that<page_number>Page 745</page_number> plaintiff's pulmonary problems were worse in the fall and winter months and that cold weather adversely affected those problems.