Volume 53 — North Carolina Court of Appeals Reports

1. Appeal and Error 6.2 — partial summary judgment ordering specific performance — right of appeal The trial court's grant of partial summary judgment ordering specific performance of a contract by defendants affected a substantial right of defendants which will work an injury to them if not corrected before an appeal from a final judgment and is immediately appealable. 2. Specific Performance 1 — specific performance of contract — error in granting summary judgment The trial court erred in entering partial summary judgment ordering three defendants to perform specifically a contract which required the three defendants to bear the expense of installing drain tile through subdivision lot 12B owned by the other two defendants if anyone owning lots 9, 10, or 12B of the subdivision "should ever complain or demand that tile be installed on or through Lot 12B . . . so that they can get proper drainage, if needed" where the evidence showed that the owners of lots 9 and 10 had demanded that tile be installed through lot 12B so that they could get proper drainage for their property, but a genuine issue of disputed fact existed as to whether there was a need for the drainage tiles.

Sales 6.4 — warranty in sale of house by builder-vendor — right of subsequent owner to sue The right to sue for breach of implied warranty that a house has been completed in an efficient and workmanlike manner and that it is suitable for habitation is extended to those who inherit a dwelling from the initial purchaser.

1. Sales 24 — toxic pesticide — no negligence of seller In plaintiff's action to recover for the wrongful death of a farm worker who died shortly after drinking poisonous pesticide, the trial court properly entered summary judgment for the seller of the insecticide where plaintiff did not present any specific facts tending to show that the seller knew or should have known that the manufacturer's written warnings on the product's label were inadequate to warn others who could be expected to come into contact with the insecticide of its poisonous character nor did plaintiff demonstrate that the seller should have known that the purchaser would not appreciate the possible harm involved in using a toxic pesticide which was packaged in a clear plastic container and looked like water.<page_number>Page 148</page_number> 2. Sales 24 — toxic pesticide — negligence of manufacturer In plaintiff's action to recover for the wrongful death of a farm laborer who drank a toxic pesticide, the trial court erred in entering summary judgment for the manufacturer of the pesticide where plaintiff's evidence raised questions for the jury as to whether the manufacturer exercised the required degree of due care in its general manufacture and packaging of the pesticide, whether the manufacturer failed to provide adequate warnings on the product's label to notify others of its toxicity, and whether the manufacturer's first aid instructions on the product's label were ambiguous and incomplete.

1. Master and Servant 7 — crane operator — agent of general employer An employee who was allegedly operating a crane at the time plaintiff suffered his injuries was an agent of defendant general employer where defendant was in the business of renting heavy equipment and people to operate the equipment; defendant had the power to hire and fire the crane operator; the crane operator was a specialist; and the fact that the third party defendant special employer instructed the operator<page_number>Page 179</page_number> specifically when to lift aluminum panels, how to lift them, and where and how to place them was not enough, standing alone, to make the operator an employee of the third party defendant. 2. Negligence 29.2 — operation of crane — sufficiency of evidence of negligence In plaintiffs action to recover for personal injuries sustained during the operation of a crane, plaintiff offered ample evidence from which the jury could have found that defendant's agent negligently failed to take the slack out of the cables of a crane, allowing a spreader bar to be balanced precariously and to fall on plaintiff. 3. Negligence 35.2 — use of crane — no contributory negligence as matter of law In an action to recover for personal injuries sustained by plaintiff during the operation of a crane evidence did not disclose that plaintiff was contributorily negligent as a matter of law where it tended to show that defendant leased a crane and provided an operator to plaintiff's employer; plaintiff was standing where he had a right to be and in fact needed to stand in order to perform the duties which defendant knew plaintiff had to perform; plaintiff was unable to determine from his location how much slack there was in the cables; plaintiff was unable to determine by observation how precariously balanced a spreader bar was; and plaintiff did nothing to contribute to defendant's agent leaving excessive slack in the cables. 4. Rules or Civil Procedure 33 — answers to interrogatories — admissibility In an action to recover for personal injuries sustained by plaintiff during the operation of a crane, the trial court erred in excluding defendant's answers to interrogatories where plaintiff was not seeking by their admission to prove the truth of the matters asserted therein, but was instead seeking to prove that defendant had knowledge or notice of the facts declared, for example, the inherently dangerous condition of spreader bars without supporting braces, or to show that defendant believed them to be true and failed to act.

1. Appeal and Error 6.2 — judgment on fewer than all claims — appeal not premature Where plaintiffs alleged as their first claim for relief that defendant had breached its contract to provide severance pay and, as a second claim for relief, that defendant had made fraudulent inducements and misrepresentations concerning severance pay and that plaintiffs had been damaged thereby, plaintiffs' appeal from the trial court's entry of summary judgment for defendant on plaintiffs' second claim was not premature, since, if summary judgment as to the alleged fraud by defendant were improperly granted, plaintiffs had a "substantial right" to have this claim for relief tried at the same time at which the claim for relief based on breach of contract was tried. 2. Fraud 12 — fraudulent representations by employer — summary judgment for employer proper In an action to recover for fraudulent inducements and misrepresentations allegedly made by defendant employer concerning severance pay, trial court properly entered summary judgment for defendant where the evidence tended to show that plaintiffs' jobs were terminable at will; at most a promise of severance pay by defendant may have caused plaintiffs to forego looking for or accepting new jobs; but there was neither particular allegation nor specific evidence that either plaintiff gave up either one of these actions or anything else as a result of the alleged severance pay program and there was thus no allegation or proof that plaintiffs relied in any way on any alleged misrepresentation of existing fact made with intent to deceive.

1. Embezzlement 1 — elements of the crime The elements of embezzlement are: (1) defendant must be the agent of the prosecutor; (2) by the terms of his employment he must receive the property of his principal; (3) he must receive the property in the course of his employment; and (4) he must convert the property to his own use knowing it not to be his own. 2. Embezzlement 6 — sufficiency of evidence The State's evidence was sufficient to support defendant's conviction of embezzlement of money where it tended to show that defendant was the assistant manager of a fast food restaurant; defendant operated the restaurant cash register on certain dates so that it would develop a cash surplus; defendant did not report any surplus to the manager and failed to note a surplus on his work sheets; and food inventory was leaving the restaurant without being accounted for, since the jury could reasonably infer from such evidence that defendant sold the missing inventory, generating a secret surplus, and that this surplus was going into defendant's pocket. 3. Embezzlement 6 — sufficiency of evidence The State's evidence was sufficient to support defendant's conviction of embezzlement of uniform and meal maintenance coupons where it tended to show that defendant was the assistant manager of a fast food restaurant; defendant was authorized to issue himself one coupon per day worked; defendant issued to himself more than one coupon per day worried; and no one authorized him to issue more than one. 4. Embezzlement 5 — defendant's monthly payments — relevancy Evidence of defendant's monthly payments which tended to show that defendant was living far above the standard to be expected of one earning $265 a week was relevant in this embezzlement prosecution to establish motive.<page_number>Page 282</page_number> 5. Embezzlement 5 — large cash transactions by defendant — relevancy Three large cash transactions by defendant in April were not too remote to be relevant to establish his guilt of embezzlement in the preceding November, December, and January where the amount of cash involved was grossly disproportionate to defendant's apparent ability to amass such wealth. 6. Criminal Law 126.1 — method of polling jury In this prosecution of defendant upon five charges of embezzlement, the procedure used to poll the jury substantially complied with the requirements of G.S. <cross_reference>15A-1238</cross_reference> where the clerk stated separately to each juror that such juror had returned a verdict of guilty as to Issue No. 1, guilty as to Issue No. 2, guilty as to Issue No. 3, guilty as to Issue No. 4, and guilty as to Issue No. 5, and the clerk then asked each juror whether that was his verdict and whether he still assented thereto.

1. Physicians, Surgeons and Allied Professions 11.2 — results of treatment guaranteed — writing required A dentist, while generally not an insurer of results, may enlarge his responsibility to the patient and contract to fulfill specific assurances, but such assurances must be in writing to be enforceable. G.S. <cross_reference>90-21.13</cross_reference> (d). 2. Physicians, Surgeons and Allied Professions 11.2; Uniform Commercial Code 6 — dentist not merchant — dentures not goods Defendant's providing of dentures for plaintiff did not constitute a sale of goods within the meaning of G.S. <cross_reference>25-2-105</cross_reference> and defendant dentist was not a merchant within the meaning of G.S. <cross_reference>25-2-104</cross_reference> (1), and the transaction between the parties was thus not covered by an implied warranty under G.S. <cross_reference>25-2-315</cross_reference>.

1. Parent and Child 1; Rules of Civil Procedure 1 — procedure to terminate parental rights — rules of civil procedure inapplicable G.S. Ch. 7A, Art. 24B exclusively controls the procedure to be followed in the termination of parental rights, and the Rules of Civil Procedure are inapplicable to such a proceeding. 2. Parent and Child 1 — procedure to terminate parental rights The statutorily established procedure for the termination of parental rights does not include the right to file a counterclaim. G.S. 7A-289.29. 3. Parent and Child 1; Trial 6 — proceeding to terminate parental rights — recording of hearing — stipulation In a proceeding to terminate parental rights, respondents were estopped from complaining on appeal as to the quality of recording equipment used to record the proceeding, since all parties stipulated to the use of recording machines in lieu of a court reporter for the taking of evidence; furthermore, respondents failed to show that they were prejudiced by the loss of specific portions of testimony resulting from a gap in the tape recording of the proceeding where respondents did not allege or show in the record what the lost testimony was. 4. Parent and Child 1 — proceeding to terminate parental rights — preliminary hearing There was no merit to respondents' argument that the trial court failed to conduct a satisfactory preliminary hearing as required by G.S. 7A-289.29 (b), since the trial judge, in the judgment terminating respondents' parental rights, specifically stated that a preliminary hearing with due notice was conducted by him and the judge specifically set out the issues which were arrived at in the special hearing to be determined at the subsequent trial. 5. Parent and Child 1; Evidence 48.1 — proceeding to terminate parental rights — parenting skills — expert testimony In a proceeding to terminate parental rights the trial court did not err in permitting a social worker to state her opinion concerning respondents' parenting skills, since the experience the witness received as a social worker for approximately four years gave her qualifications and skills superior to those of the jury to determine whether respondents' actions in leaving their child in the hospital in North Carolina when they moved to Florida were indicative of good parenting skills; moreover, it was proper for the court on appeal to consider the validity of the trial court's admission of the witness's testimony, despite the fact that she was not formally tendered as an expert.<page_number>Page 374</page_number> 6. Parent and Child 1; Evidence 33 — proceeding to terminate parental rights — hearsay testimony In a proceeding to terminate parental rights where the evidence tended to show that respondent mother moved to Florida, leaving the child in question in a hospital in N.C., the trial court properly sustained petitioner's objection to the question, "Did the Florida Department of Health and Rehabilitative Services contact you in any way regarding the three children in your home to rehabilitate you or to remove your children for being abused, neglected or dependent?" since such question called for hearsay testimony. 7. Parent and Child 1; Evidence 33 — proceeding to terminate parental rights — admissibility of letters In a proceeding to terminate parental rights the trial court erred in excluding letters from respondents' counsel to respondents informing them of the progress in petitioner's effort to transfer respondents' child from N.C. to a foster home in Florida where respondents were residing, since the letters were admissible to establish the state of mind of respondents, but exclusion of the letters was harmless error. 8. Parent and Child 1; Evidence 25 — proceeding to terminate parental rights — photographs In a proceeding to terminate parental rights the trial court erred in admitting photographs of the child in question, since there was no testimony for the photographs to illustrate; however, respondents failed to show that they were prejudiced or that the trial court's judgment was influenced by the erroneous admission of the photographs. 9. Parent and Child 1; Rules of Civil Procedure 60 — proceeding to terminate parental rights — amendment of judgment The trial court acted within its authority in amending its judgment to state that the best interest of the child in question would be served by the termination of parental rights, since the omission of that phrase was an inadvertent clerical oversight, and the trial judge's amendment of the judgment to conform it to his original intention was correct under the authority of G.S. <cross_reference>1A-1</cross_reference>, Rule 60 (a).

1. Aviation 2 — taking by inverse condemnation — frequency of overflights — competency of the evidence In an inverse condemnation action, the frequency of overflights subsequent to the alleged date of taking was pertinent to plaintiffs' damages, the difference in value of their property immediately before and after the taking, and it was not error to permit introduction of this evidence. 2. Aviation 2 — inverse condemnation — witnesses' opinion — material interference with use of property In light of (1) evidence that there were no overflights that materially interfered with plaintiffs' use and enjoyment of their properties prior to extension of the runway, (2) absence of evidence to the contrary, and (3) want of a compensable taking absent such direct and immediate interference, admission of plaintiffs' witnesses' opinions as to the value of plaintiffs' properties on the date of alleged taking (1) without overflights and (2) with overflights was not error in an inverse condemnation action. 3. Aviation 2; Evidence 45 — inverse condemnation — witnesses' opinion — impact of airport upon surrounding properties In an inverse condemnation action, it was not error for the court to permit expert witnesses to offer their opinions regarding the adverse effect on plaintiffs' properties of extension of an airport runway. 4. Aviation 2 — inverse condemnation — overflights from new runway In an inverse condemnation action where an October 1965 taking date was alleged, plaintiffs failed to seek amendment to allege a further taking in June 1979, and plaintiffs failed to object to submission of issues setting a taking date of 11 October 1965, plaintiffs limited the<page_number>Page 391</page_number> scope of their action to the October 1965 taking, and the trial court properly excluded evidence of overflights from the opening of a new runway in 1979. 5. Aviation 2 — instruction to jury — whether inverse condemnation occurred An instruction that the jury must be satisfied the flights to and from the airport "were so low and so frequent or regular as to be a direct and immediate invasion of and interference with the use and enjoyment of the plaintiffs' land" that the reasonable market value of plaintiffs' properties was substantially reduced on a certain date, was proper on the issue of whether a taking occurred on that date. 6. Aviation 2 — instruction to jury — damages due to inverse condemnation In an inverse condemnation case, an instruction that plaintiffs' damages would be the differences in the fair market values of their properties as of a certain date with or without jets and other aircraft flying over the properties regularly and repeatedly was a proper instruction as compensation is the difference in value of their properties immediately before and immediately after the taking of the flight easement. 7. Aviation 2; Appeal and Error 49 — exclusion of relevant evidence — evidence merely cumulative Evidence regarding plane crashes in the vicinity of plaintiffs' property was relevant to the issue of damages in an inverse condemnation case; however, exclusion of this evidence was not prejudicial as similar evidence had been admitted and its effect would have been merely cumulative. 8. Aviation 2; Evidence 41 — witness's opinion on effect of noise — invasion of province of jury The court did not err in failing to permit "an expert Mechanical and Aerospace Engineer, specializing in the field of Acoustics in Noise and Vibration Control" to express his opinion as to the effect of a taped noise of airplanes on humans as nothing in the record indicated he was better qualified than the jury to draw conclusions from the evidence. 9. Aviation 2; Evidence 15.1 — admission of party — too remote to have relevance In an inverse condemnation action, the court properly excluded testimony that an assistant airport manager in 1979 said no one could buy one of the houses near the airport unless he moved it at least one mile from the airport as such testimony was too remote to have relevance to takings which occurred in 1965. 10. Aviation 2 — inverse condemnation — question of taking properly for jury In an inverse condemnation case where defendant presented evidence tending to show that no substantial diminution in the value of plaintiffs' properties resulted from overflights, the court properly denied plaintiffs' motion for directed verdict on the issue of a taking. 11. Aviation 2 — instruction to jury — interest from date of taking An instruction to the jury in an inverse condemnation case that, should they find a taking, they were "to add to that amount an award<page_number>Page 392</page_number> of interest at the rate of 6% per annum from" the date of the taking to the date of the award was proper. 12. Aviation 2 — inverse condemnation — judgment description of easement acquired — conforming to the verdict The judgment in an inverse condemnation case properly described the easements acquired in terms of (1) frequency of flights, (2) permissible altitude, (3) type of aircraft, and (4) duration; however, by permitting overflights by "heavy aircraft, both jet powered and propeller driven, commercial and military, of all types," it precluded a finding of subsequent taking from introduction of new types of aircraft and must be modified to limit the reference to types of aircraft to those shown by the evidence produced at trial.

1. Searches and Seizures 15 — standing of passenger to object to search and seizure of items from automobile An individual's Fourth Amendment rights are personal rights and standing is based upon the "legitimate expectations of privacy" of the individual asserting that right in the place which has allegedly been unreasonably invaded; therefore, defendant failed to establish standing to object to seizure of items from an automobile in which he was only a passenger and in which he asserted neither an ownership nor a possessory interest. 2. Criminal Law 84; Searches and Seizures 47 — police officers outside territorial jurisdiction — evidence from search of automobile admissible Evidence obtained in the search and seizure of an automobile in which defendant was a passenger properly was admitted even though the arresting police officers were outside their territorial jurisdiction as prescribed by G.S. <cross_reference>15A-402</cross_reference> and defendant's arrest may have been unlawful. 3. Arrest and Bail 4 — territory in which officer may arrest — arrest after "immediate and continuous" flight from territory There was authority to arrest defendant under the "immediate and continuous" flight exception of G.S. <cross_reference>15A-402</cross_reference> (b) where defendant was suspected of recently completing an armed robbery, was arrested 1.67 miles outside an officer's territory, and where the arresting officer had followed the automobile in which defendant was traveling inside his territory but waited until he received assistance before stopping the automobile.<page_number>Page 422</page_number> 4. Criminal Law 66.9 — photographic identification — no suggestiveness There was no suggestiveness in a photographic identification procedure whereby a witness chose defendant's photograph from a series of seven photographs and none of the photographs contained names or other distinguishing markings. 5. Criminal Law 66.16 — independent origin of in-court identification Where a witness looked directly at defendant's face and had an opportunity to observe defendant from a distance of one and one-half to two feet under good lighting conditions for a period of from two to three minutes, this is evidence from which the trial court could find the witness's in-court identification was not tainted by any pretrial identification procedures. 6. Robbery 1.1 — armed robbery — sufficiency of the evidence In a prosecution for armed robbery, evidence was sufficient to be submitted to the jury on the element of endangering or threatening the life of a person where the evidence showed the witness was robbed while defendant held a pistol in his hand.

1. Bastards 13; Constitutional Law 23 — liberties protected by the Due Process Clause — retaining surname of illegitimate child The mother of an illegitimate child has a Fourteenth Amendment due process interest in retaining the surname given her child at birth and the father, seeking to legitimize the child, the Secretary of Human Resources, and the State Registrar of Vital Statistics can be enjoined from changing the child's name to the father's by issuing a new birth certificate upon legitimation. 2. Bastards 13; Constitutional Law 20, 23 — requiring surname of illegitimate child be changed to that of father — denies mother equal protection Petitioners failed to meet the burden of advancing an "exceedingly persuasive justification" in requiring the surname of an illegitimate child to be changed to that of the father in legitimation proceedings pursuant to G.S. <cross_reference>49-10</cross_reference> and <cross_reference>49-13</cross_reference>, and such a requirement denies the mother of an illegitimate child the equal protection of the laws and a protected liberty interest without due process of law.

1. Counties 5.1; Municipal Corporations 30.3 — county zoning ordinance — fencing of automobile wrecking yard — vagueness A county zoning ordinance requiring junkyards or automobile graveyards to be surrounded by an opaque fence or by a wire fence with vegetation, requiring the owner to utilize "good husbandry techniques with respect to said vegetation, including but not limited to, proper pruning, proper fertilization and proper mulching," exempting garages and repair shops which had the primary purpose of repair and requiring junkyards not be within 100 yards of the center line of a public road is not considered unconstitutionally vague as a man of common intelligence would understand what is meant and required by the ordinance's provisions. 2. Counties 5.1; Municipal Corporations 30.4 — county zoning ordinance — aesthetic consideration only — lawful exercise of police power An ordinance requiring junkyards or automobile graveyards to be surrounded by an opaque fence or by a wire fence and vegetation does not violate the Fourteenth Amendment to the United States Constitution or the Law of the Land Clause of Art. I, 19 of the North Carolina Constitution because it regulates for aesthetic purposes only.

Municipal Corporations 45 — letter received by city — public record A letter received by the manager of defendant-city from a consulting engineer whom defendant-city employed to inspect construction work on additions and modifications to its water treatment plant is a public record subject to disclosure pursuant to G.S. <cross_reference>132-1</cross_reference>.

1. Eminent Domain 5.1, 6.7 — farm broken up into parcels — parcel taken for landfill — unity of lands In a proceeding to condemn a portion of defendants' land for use as a landfill where defendants contended that the acres taken by plaintiff were merely a portion of the farm of defendants, but plaintiff contended that the tract taken was neither related to nor connected with any of the other land in any meaningful sense, evidence was sufficient for the trial court to find that, with the exception of a parcel of land on which apartments were built, all of the property was being used together as a family farm, and use of the parcels for different activities, including residences, grazing land, and haying, was not incompatible with use of the whole tract as a family cattle farm. 2. Eminent Domain 5.1 — farm broken into parcels — physical unity In a proceeding to condemn a portion of defendants' land for use as a landfill where defendants contended that the acres taken by plaintiff were merely a portion of their farm while plaintiff contended that the tract taken was neither related to nor connected with any of the other land in a meaningful sense, evidence was sufficient to establish the physical unity of the parcels, with the exception of a parcel used for an apartment building, and the physical unity was not destroyed by the fact that all of the parcels were physically separated from the property taken and from each other by one or two roads, railroad tracks, and natural boundaries, since, if a tract of land, no part of which is<page_number>Page 517</page_number> taken, is used in connection with the same farm, part of which is taken, it is not considered a separate and independent parcel even if the two tracts are separated by a highway, railroad, or other boundaries; physical unity requires only that the parcel taken and the parcels sought to be included be contiguous with the whole of the land similarly used; and a single unbroken line could be drawn along the boundary of defendants' farm so that no truly separate parcel need be included. 3. Eminent Domain 5.1 — part of property taken for landfill — unity of ownership There was substantial unity of ownership in the entire 156 acre farm of defendants, a portion of which plaintiff sought to condemn for a landfill, where one defendant held a vested remainder in fee simple in the parcel taken while another defendant was the life tenant of that parcel; all defendants held other parcels in fee simple; and, in determining unity of ownership, the significant factor is that the party who owns an interest and estate in the parcel he seeks to include in the whole for purposes of computing damages must also own an interest and estate in the tract taken, although the two interests and estates need not be of the same quality or quantity.

Master and Servant 79 — workers' compensation — determination of death benefits The effect of G.S. <cross_reference>97-38</cross_reference> is to fix each recipient's share of death benefits under the Workers' Compensation Act at the date of decedent's death; therefore, the Industrial Commission properly held that the entire compensation to which the survivors, a widow and three minor children, were entitled should be divided into four equal parts with the widow to receive weekly payments for 400 weeks and each of the three minor children to receive only its share of weekly compensation beyond the 400 week period and until such child reached 18 years of age.

Bastards 10; Constitutional Law 40 — civil paternity suit by State — indigent defendant — right to appointed counsel An indigent defendant in a paternity suit instituted by the state has a right to court-appointed counsel pursuant to the due process requirements of the Fourteenth Amendment of the U.S. Constitution and the Law of the Land provision in Art. I, 19 of the N.C. Constitution.

1. Eminent Domain 3.4 — expansion of State Park — State's right to acquire property The State has the right to condemn property to expand a State Park in order to protect a historic "swimming hole" and to assure the public of continued access to the site. G.S. <cross_reference>146-22.1</cross_reference> (5), (6) and (8). 2. Eminent Domain 7.7 — failure of State to file Environmental Impact Statement or negative declaration — defendants' waiver of right to object The State was not required to file an Environmental Impact Statement in order to condemn property to expand a State Park, but the State should have filed a negative declaration pursuant to Section 25.0105 of the North Carolina Administrative Code. The requirement to file such a declaration, however, may be waived by the failure of the landowner party in a condemnation proceeding to assert a violation of the Environmental Policy Act, or rules and regulations adopted pursuant thereto, as a defense in his responsive pleading as required by G.S. <cross_reference>1A-1</cross_reference>, Rule 12 (b). 3. Eminent Domain 3 — acquisition of land for public purpose — failure to show arbitrary and capricious Appellants' claim that the State acted arbitrarily and capriciously in condemning their land was meritless where the evidence showed acquisition of appellants' land was for a proper public purpose and the State complied with procedural requirements for condemnation. Neither did evidence that the State originally negotiated to acquire a smaller tract than it actually condemned and that the State had previously been financially unable to purchase the land from the former owner require a finding that the acquisition of appellants' property was arbitrary and capricious.<page_number>Page 675</page_number>

1. Appeal and Error 48.3; Conspiracy 2; Evidence 34.1 — admission of testimony concerning admissions of less than all defendants — not prejudicial error In a civil case in which plaintiff alleged defendants conspired to murder testatrix and in which plaintiff sought damages as a result of that conspiracy, it was error to admit testimony of an SBI agent concerning admissions of two defendants as to any of defendants other than the makers of the declarations as the declarations were not made in furtherance of the conspiracy. The error was not prejudicial, however, as the guilty plea of each defendant to the conspiracy charge had been admitted without contest. 2. Trial 40 — issues for jury — no error Where the possibility that the other defendants conspired independently of appellant was not raised by the evidence, it was not error to have excluded such a finding through the issues submitted to the jury. 3. Rules of Civil Procedure 59 — motion to set aside verdict — judge's discretion Where plaintiff offered sufficient evidence to justify the award of compensatory damages in her civil action, defendant failed to show abuse of discretion by the trial court's denial of his motion for a new trial.

1. Appeal and Error 6.3 — adverse ruling as to personal jurisdiction — right of immediate appeal Defendant had the right of immediate appeal from an adverse ruling on its motion to dismiss for want of personal jurisdiction based on an alleged agreement to submit all disputes to arbitration. 2. Arbitration and Award 1 — no binding agreement to arbitrate The trial court properly found that there was no agreement between the parties to submit all disputes to arbitration where the record shows that the parties entered into an oral contract by which plaintiff would perform specified services for defendant; after plaintiff had performed a substantial portion of its services, it received from defendant an unsolicited form document entitled "Purchase Order" on which defendant had typed a description of the services plaintiff had agreed to perform; the form contained numerous printed terms and conditions, including a provision regarding submission of all disputes to arbitration; by letter, plaintiff acknowledged receipt of the purchase order form and returned it to defendant; and the record failed to establish execution by anyone on behalf of plaintiff of the form containing the agreement to arbitrate and failed to establish plaintiffs assent by any other method, since defendant's "purchase order" constituted an offer to alter the existing contract by adding certain terms and conditions, and the record failed to disclose that plaintiff accepted defendant's offer to add to the original contract.