Volume 51 — North Carolina Court of Appeals Reports

1. Criminal Law 91 — speedy trial not denied Defendant was not entitled to have his motion for a speedy trial granted where defendant was indicted on 27 August 1979; a new indictment for the same offenses was issued 7 January 1980; defendant filed a "motion for speedy trial dismissal" on 8 February 1980; defendant's trial commenced 10 April 1980; defendant had pled not guilty at his arraignment on the 27 August 1979 indictment and had not been brought to trial for the offenses charged so that the new indictment on 7 January 1980 was issued before entry of a plea of guilty or commencement of a trial; the original indictment was therefore superseded by the subsequent indictment charging defendant with the same offenses; and thus when defendant's dismissal motion was heard on 11 February 1980 and when his trial commenced on 10 April 1980, the 120 day limit imposed for commencement of trial by G.S. <cross_reference>15A-701</cross_reference>(a1)(1) had not expired. 2. Constitutional Law 50 — speedy trial — no denial of constitutional right The trial court did not err in failing to dismiss charges against defendant for failure to grant him a speedy trial in violation of his constitutional rights since defendant's trial commenced 30 days from the date of his indictment, even if the time was calculated from the original indictment against defendant, only 226 days elapsed from the date of indictment to the date trial commenced; defendant neither alleged nor offered evidence tending to prove that significant periods of delay were caused by neglect or willfulness on the part of the State; defendant failed to assert his constitutional right to a speedy trial until the day before his trial commenced; and defendant failed to demonstrate prejudice resulting from the delay. 3. Criminal Law 34 — other offenses — evidence improperly admitted The trial court erred in admitting over defendant's objection evidence relating to his commission of other distinct, independent, or separate offenses, since the incriminating evidence against defendant consisted entirely of the testimony of three witnesses who admittedly participated with defendant in the offenses alleged; each witness<page_number>Page 27</page_number> testified to his extensive criminal record and admittedly testified against defendant for the purpose of minimizing his own period of incarceration; and the effect of the improperly admitted evidence was to diminish defendant's credibility with the jury.

1. Searches and Seizures 39 — search of person on premises searched under warrant The search of defendant's person after the search of a private residence pursuant to a warrant was authorized by G.S. <cross_reference>15A-256</cross_reference> where an SBI agent received reliable information that two men, a black male and a white male, had 100 grams of hashish for sale at a particular private residence; a purchase of the 100 grams was arranged for a certain evening; officers went to the residence that evening with a search warrant; a search of the residence pursuant to the warrant turned up approximately 98 grams of hashish, but none of the hashish found was in<page_number>Page 91</page_number> a form which would indicate it was ready for sale; and officers decided that defendant, who was at the residence when officers first went there, should be searched for hashish since the object of the search, ready-to-sell hashish, had not been discovered and could be concealed upon defendant's person. 2. Searches and Seizures 10 — probable cause "particularized" to defendant Officers had sufficient probable cause "particularized" to defendant to search defendant's person after executing a warrant to search a private residence where an SBI agent had received reliable information that two men, a black male and a white male, had 100 grams of hashish for sale at the residence and that a sale was to take place on a certain evening; officers went to the residence that evening with a search warrant to search the premises, but the search failed to turn up any hashish that was ready for sale; and officers had reason to believe that defendant, a white male who was at the residence when officers first went there, might have the ready-to-sell hashish on his person since they knew it was supposed to be at the residence at that time and it could easily be concealed upon the person of anyone present at the residence.

1. Indictment and Warrant 12.2 — amendment of warrant In a trial de novo in the superior court upon a warrant alleging death by vehicle, the trial court did not err in allowing the State to amend the warrant at the close of the State's evidence by striking an allegation of "following too closely" and adding an allegation of "failure to reduce speed to avoid an accident, a violation of G.S. <cross_reference>20-141</cross_reference>(m)," since the nature of the offense with which defendant was charged, death by vehicle, was not changed by the amendment. G.S. <cross_reference>15A-922</cross_reference> (f). 2. Automobiles 113.1 — death by vehicle — sufficiency of evidence The State's evidence was sufficient for the jury in a prosecution for death by vehicle while failing to reduce speed to avoid an accident where it tended to show two vehicles were stopped in an intersection in defendant's lane of travel waiting to make a left turn at the bottom of a long sloping hill; signs warning of the intersection were located 300 feet from the intersection near the crest of the hill; visibility was unimpaired and vehicles coming over the crest of the hill had ample opportunity to see vehicles in the intersection waiting to turn and ample opportunity to stop behind such vehicles; the vehicle in which the deceased was riding came over the crest of the hill and was slowing down in anticipation of having to stop; a sand truck driven by defendant then came over the crest of the hill and struck the right rear of the vehicle in which deceased was riding, forcing it into the lane of oncoming traffic and precipitating the collision in which deceased was killed; and defendant's truck left tire impressions up to the point of impact of approximately 187 feet in length. 3. Criminal Law 146.4 — constitutional questions not raised in trial court An appellate court cannot consider questions as to the constitutionality of a statute which have not been raised or considered in the trial court.<page_number>Page 114</page_number>

1. Appeal and Error 68.2 — dismissal of negligence claim — law of the case The dismissal at the first trial of plaintiffs' claims for personal injuries and damages to their car based on negligence became the law of the case and binding upon the court at the second trial where plaintiffs did not bring forward or argue an assignment of error based upon the dismissal of their negligence claims in their appeal from the first trial, and the appellate court held that such assignment of error was abandoned by plaintiffs. 2. Automobiles 6.5 — sale of automobile — incorrect odometer reading — action for damages — sufficiency of evidence Plaintiffs' evidence was sufficient for the jury in an action to recover damages pursuant to the Vehicle Mileage Act, G.S. <cross_reference>20-340</cross_reference> et seq., where it was sufficient to support findings by the jury that defendant dealer sold an automobile to the plaintiffs and furnished them, at the time of the sale, an odometer mileage statement which showed the automobile had been driven 1.4 miles, defendant knew the car had been driven more than 1.4 miles, and defendant failed to make a statement that the mileage was unknown. Furthermore, the prima facie rule established by the 1979 amendment to G.S. <cross_reference>20-343</cross_reference> applied to plaintiffs' case, although the sale of the automobile occurred in 1976, and plaintiffs' evidence was sufficient to present to the jury the question whether defendant violated G.S. <cross_reference>20-343</cross_reference>.

1. Homicide 21.9 — shooting of wife — sufficiency of evidence of involuntary manslaughter There was sufficient evidence of defendant's wantonness, recklessness, or other misconduct amounting to culpable negligence to support a verdict of involuntary manslaughter where such evidence tended to show that defendant sat on a couch in his living room while he oiled and cleaned his gun; his wife was seated to his right on the same couch; after cleaning the gun, defendant loaded it with 14 rounds of ammunition and pointed it out the front of the house, which was to his right; he noted that the bolt was stuck in the rear position, and he attempted to get the bolt to go forward by slamming it; the gun fired; defendant looked to see if the bullet had gone out the front of the house and observed that his wife had been shot; and defendant then called the operator to ask for police assistance and an ambulance, but he was so excited that the operator could not understand him.<page_number>Page 141</page_number> 2. Criminal Law 38 — death by shooting — earlier pointing of gun — evidence inadmissible In a prosecution of defendant for the murder of his wife where defendant contended that he accidentally shot her, the trial court erred in permitting defendant's neighbor to testify that on the evening before the shooting she had told the defendant not to point the gun at her while he was cleaning it since defendant's acts of negligence toward a party other than deceased on the day before the crime charged was inadmissible to show a culpably negligent disposition and did not show intent, design, guilty knowledge or exhibit a chain of circumstances throwing light on the alleged crime, and evidence of the two incidents of pointing a gun may have had a cumulative effect in the minds of the jurors rather than being viewed as evidence of two separate, independent incidents.

Infants 18 — juvenile delinquency proceeding — insufficiency of evidence The juvenile court erred in denying respondents' motions to dismiss for insufficiency of the evidence to sustain an adjudication of delinquency where respondents were accused of damaging automobiles being transported by rail by throwing rocks at the automobiles, but the State failed to introduce evidence tending to establish that the cars were owned by someone other than respondents, or that injury to the cars was inflicted by respondents.<page_number>Page 154</page_number>

Master and Servant 108.1 — misconduct connected with employee's work — no right to unemployment compensation benefits Claimant's actions in threatening a fellow employee with bodily harm, leaving his assigned work area for the avowed purpose of going to another work area to harass a fellow employee, and picking up a wooden post in the course of an argument with the fellow employee were sufficient to constitute an intentional and substantial disregard of the employer's interest, and they thus constituted "misconduct connected with his work" within the meaning of G.S. <cross_reference>96-14</cross_reference> sufficient to disqualify him from receiving unemployment compensation benefits.

1. Criminal Law 32.2; Forgery 2 — attempt to obtain money by forged check — presumption that defendant forged check In a prosecution for forging and uttering forged checks, the trial court's instruction that when a person in possession of a forged check attempts to obtain money or advances upon it, a presumption is raised that the defendant either forged or consented to the forging of such check and, nothing appearing, the defendant would be presumed guilty of forgery described a mere permissive inference which did not violate due process since (1) there is a rational connection between the basic and elemental facts such that upon proof of the basic facts (possession of a forged check and attempting to obtain money from it), the elemental facts (either forged or consented to forging of such check) are more likely to exist, and (2) there is other evidence in the case which, taken together with the inference, is sufficient for a jury to find the elemental facts beyond a reasonable doubt. 2. Forgery 2 — defendant's signature on check- refusal to instruct on presumption of authority In a prosecution for forgery and uttering forged checks, the trial court did not err in refusing to charge that when a defendant signs the name of another to an instrument it is presumed he did so with authority where defendant offered no evidence that he signed the checks with authority but testified that he had never seen the checks.

Conspiracy 2; Unfair Competition 1 — civil conspiracy — unfair trade practice sufficiency of complaint Plaintiffs' complaint stated a claim for relief against defendant bank and defendant mortgage lender for civil conspiracy and treble damages under the unfair trade practices statute, G.S. <cross_reference>75-1.1</cross_reference>(a), where it alleged that plaintiffs contracted with defendant bank to purchase a condominium; pursuant to the terms of the contract, plaintiffs applied for a loan to defendant lender to finance the purchase of the condominium; defendant bank thereafter determined it did not want to perform the contract and made an agreement with defendant lender by which defendant lender would not make a loan to plaintiffs to finance the purchase and would not notify plaintiffs of the loan refusal until it was too late for plaintiffs to secure alternate financing; and defendant lender, in furtherance of this agreement, refused to make the loan, not because of a legitimate business reason, but in order to prevent plaintiffs from performing their part of the contract.

1. Appeal and Error 6 — order adjudicating fewer than all claims — appealability In an action by husband and wife to recover for damages sustained in an automobile accident with defendant, the trial court's order dismissing the wife's claim, though it adjudicated the rights and liabilities of fewer than all of the parties, was immediately appealable under G.S. <cross_reference>1-277</cross_reference> and G.S. <cross_reference>7A-27</cross_reference>, because the order disposed of all claims asserted by the wife, denied her a jury trial on her claim against defendant, and therefore affected a substantial right. 2. Torts 7.2 — automobile accident — avoidance of release — evidence of fraud or mutual mistake In an action to recover damages for injuries sustained by plaintiff wife in an automobile accident, trial court erred in dismissing plaintiff wife's claim on the basis of a release given to plaintiff husband's insurer in exchange for $4,975.00, and the trial court erred in excluding "on the grounds of the parol evidence rule" an affidavit by which plaintiff wife attempted to show that the release, which purported to release "[plaintiff husband] and any other person, firm or corporation charged or chargeable with responsibility or liability" arising out of the accident, was procured by fraud or executed pursuant to a mutual mistake of fact, because the affidavit alleged the time the purported fraud was committed, 10 August 1978, when plaintiff wife expected to re-enter the hospital for medical procedures necessitated by the accident; it alleged the place, plaintiff wife's home in Massachusetts; it alleged the content of the alleged fraudulent representation, that her dealings with plaintiff husband's insurer would not affect any suit by plaintiff wife against the other party involved in the accident; and it alleged what was obtained as a result, plaintiff wife's signature on a document which purported to release any person or firm charged or chargeable with liability arising out of the accident. Furthermore, the facts alleged in plaintiff wife's affidavit would permit a finding that she and an insurance adjuster agreed and intended to release only plaintiff husband; the document signed contained language contrary to<page_number>Page 265</page_number> this mutual agreement and intention in that by its terms it released other joint tortfeasors as well as plaintiff husband; it therefore failed to achieve the result which could be found to have been agreed to and intended by both parties; and it thus raised a genuine issue of fact as to whether the release was executed under circumstances amounting to mutual mistake.

Waters and Watercourses 3; Administrative Law 4 — river basin not declared capacity use area — no arbitrary or capricious action The Environmental Management Commission did not act arbitrarily or capriciously in deciding not to declare the Yadkin River Basin a capacity use area.

1. Master and Servant 49.1 — worker's compensation — tractor-trailer driver as employee of carrier The lessor-driver of tractor-trailer equipment, under a trip-lease agreement with an interstate commerce carrier, is deemed to be an employee of the carrier for worker's compensation purposes while operating the equipment under the carrier's ICC authority; therefore, deceased was an employee of defendant for worker's compensation purposes where he leased his tractor to defendant, defendant had exclusive possession, control and use of the tractor, its name was permanently affixed to the tractor, deceased was required to haul solely for defendant and was required to return defendant's trailer to its terminal within a reasonable time, defendant operated under an ICC franchise which extended to a purchaser in Maryland, where deceased had just made a delivery, defendant filed an Industrial Commission form listing defendant as the employer and indicating that deceased had been employed for eight years, and deceased had a trip-lease agreement with defendant. 2. Master and Servant 63 — worker's compensation — injury on highway — accident within course and scope of employment Evidence was sufficient to support the finding and conclusion of the Industrial Commission that deceased's accident occurred in the course and scope of his employment, though the accident occurred approximately four and a half hours after deceased had delivered his load of chemicals and while he was still in the Washington, D.C. area heading in a direction which would have been opposite to the most direct route back to Wilmington, North Carolina, since it was abundantly clear from the record that defendant operated under an ICC franchise which extended to the customer to whom deceased had made his delivery; it was not unusual for defendant's drivers including deceased, to wait from 8:30 a.m. until 2:00 p.m. before returning home since the drivers were instructed to call defendant's dispatcher before returning to see if defendant had anything for them to do coming back; defendant's drivers customarily rested, showered, and cleaned up before starting the return trip home; a truck stop located about two miles from the customer to whom deceased had made his delivery provided a restaurant, showers and a lounge for truck drivers; deceased did spend some time at the truck stop after making his delivery to the customer; deceased's truck had a sleeper in it; it was not unusual for truckers to turn around during trips; the bridge where the accident occurred was located between the customer to whom deceased made his delivery and defendant's office in Wilmington; and defendant owned the trailer pulled by deceased, and deceased was required to return the trailer to defendant in a reasonable time.<page_number>Page 317</page_number> 3. Master and Servant 58 — worker's compensation — employee's death not caused by intoxication The Industrial Commission did not err in finding and concluding that the accident in question was caused by a small pickup truck pulling in front of deceased, nor did it err in finding and concluding that deceased's death was not proximately caused by intoxication, since defendant completed an Industrial Commission form on the day of the accident stating that deceased lost control of his tractor-trailer when he "tried to prevent hitting a truck that had cut him off'; plaintiffs were not required to prove that deceased was not intoxicated; and although the Commission found as a fact that deceased had a blood alcohol content of between .14 and .16 percent at the time of his death, the Commission found and concluded that death was not proximately caused by intoxication.

1. Process 9.1 — removal of child from N.C. — personal jurisdiction over defendant The trial court properly concluded that it had personal jurisdiction over the nonresident defendant in an action to recover damages because of the wrongful removal of plaintiff's child from North Carolina in violation of a child custody order where plaintiff's complaint and affidavit supported the court's presumed finding that defendant participated in removing plaintiff's child from North Carolina, although defendant presented a contrary affidavit in which he denied participating in the removal of the child from this State. 2. Courts 2.4 — alleged absence of jurisdiction — motion to dismiss — notice and hearing Defendant's contention that his procedural due process rights were violated because he did not receive notice and a hearing on his motion to dismiss the action against him for lack of personal jurisdiction is without merit where the court's order denying the motion to dismiss states that evidence was presented at a hearing by the attorney for plaintiff and the attorney for defendant, and no evidence to the contrary appears in the record.

1. Attorneys at Law 2 — foreign attorney — appearance without meeting statutory requirements — harmless error Plaintiff was not prejudiced by trial court's error in permitting a Michigan attorney to appear for a friend of the court from Michigan in a child custody hearing without complying with requirements of G.S. <cross_reference>84-4.1</cross_reference>. 2. Divorce and Alimony 23.6 — child custody proceeding — refusal to exercise jurisdiction — more convenient forum The district court did not err in declining to exercise its jurisdiction in a child custody proceeding upon concluding that a Michigan court is a more convenient forum as defined in G.S. 50A-7 where Michigan was the home State of the children; Michigan has had a closer connection with the family of the children than North Carolina; a Michigan court has entered no less than 19 separate orders in the matter; and the evidence as to treatment of the children by the children's father who had custody of the children was more readily available in Michigan than in North Carolina.

Criminal Law 149.1 — granting of motion to suppress evidence — appeal by State The State had no right to appeal an order granting defendant's motion to suppress evidence where the record failed to show that the prosecutor certified to the judge who granted the motion that the appeal was not being taken for the purpose of delay and that the suppressed evidence was essential to the case as required by G.S. 15A-9791(c).

1. Divorce and Alimony 16.6 — permanent alimony — abandonment — sufficiency of evidence In an action for absolute divorce where defendant filed a counterclaim for permanent alimony on the ground of abandonment, evidence was sufficient to raise the reasonable inference that plaintiff brought the parties' cohabitation to an end without justification, without defendant's consent, and without any intention of resuming cohabitation at a later point, where such evidence tended to show that the parties were married in 1955, moved with their children to Chapel Hill in 1973, and did not suffer any serious marital problems until 1976 when problems arose concerning plaintiff's relationship with the wife of a friend; in 1976 the parties sold their property in Chapel Hill, purchased another piece of property in Hillsborough, and plaintiff moved into a trailer on the property with three of the children; defendant and the other children remained in Chapel Hill; defendant understood that she and the remaining children were to move to Hillsborough shortly; the parties never discussed the move as being a marriage separation, and defendant never agreed or consented to such a separation; defendant made several attempts to get the parties back together, including going to Hillsborough to see plaintiff and their sons as much as possible; and in June 1978 plaintiff told defendant that she definitely would not be moving to Hillsborough with the rest of the family. 2. Divorce and Alimony 16.8 — alimony — sufficiency of evidence to support award Evidence was sufficient to support findings of fact by the trial court and the findings clearly demonstrated that plaintiff was the supporting spouse, defendant was the dependent spouse, plaintiff was financially capable of supporting defendant, and defendant needed $349 sufficiently to meet her monthly obligations; thus, the court could properly conclude that plaintiff should provide defendant with $250 per month as reasonable support.<page_number>Page 523</page_number> 3. Appeal and Error 16.1; Rules of Civil Procedure 58 — signing of judgment trial court's authority — order entered after notice of appeal given Where the judgment requiring plaintiff to pay permanent alimony was "entered" in open court on 16 April 1980, and notice of appeal from this judgment was timely given, the trial judge had authority under G.S. <cross_reference>1A-1</cross_reference>, Rule 58 to approve the form of the judgment and to direct its prompt preparation and filing, and she properly exercised that authority when she approved the written judgment and signed it on 20 May 1980 and when the judgment was filed on 30 May 1980; however, the trial judge did not have authority to enter an order dated 29 July 1980 requiring plaintiff to pay an attorney's fee, since no mention of an attorney's fee was made in the judgment entered 16 April 1980, no reference was made to an attorney's fee in the judgment signed by the judge on 20 May 1980, and the trial judge could not enter an order in the cause since the matter was on appeal pursuant to the notice of appeal given 28 April 1980.

Judgments 21.1; Rules of Civil Procedure 60.1 — motion to set aside consent judgment — reasonable time — failure to show absence of consent Defendant's motion 23 months after a consent judgment was entered to set aside the judgment on the ground it was void because defendant did not consent thereto was not made within a "reasonable time" as required by G.S. <cross_reference>1A-1</cross_reference>, Rule 60(b)(4), and the trial court thus had no authority to entertain and allow the motion, where defendant was present when most of the terms of the judgment were discussed in open court; within six months after the judgment was entered, defendant read a copy of the judgment and argued with his attorney about the alimony provision therein; and defendant fully complied with terms of the consent judgment with respect to the transfer of title to two mobile homes and two vehicles and the disposition of certain real estate owned by the parties as tenants by the entirety. Furthermore, the evidence was insufficient to rebut the presumption that defendant's attorney, who signed the consent judgment, did not have the authority to do so and that the judgment was therefore void because it had not been signed by defendant.

Gifts 1 — action to recover personal property — failure to instruct on defense of gift Where plaintiff alleged that defendant converted certain items of personal property belonging to plaintiff and refused to pay rent that was owed to plaintiff and past due but defendant contended that these items were gifts made to her by plaintiff's chief executive officer and controlling stockholder the trial court erred in failing to declare and explain the law of gift and erred in failing to submit the issue to the jury, since plaintiff's chief executive officer testified that he loved defendant, that she travelled with him and slept with him on a number of occasions, and that he wanted to marry her; the officer also testified that he controlled the plaintiff corporation, that he either paid for the items by personal check and was reimbursed by the company or defendant purchased them and was reimbursed by him; and the title and registration of a 1977 Oldsmobile which the officer provided for defendant were put in the name of defendant.