Volume 56 — North Carolina Court of Appeals Reports

1. Rules of Civil Procedure 8, 13 — failure to reply to counterclaim — admission of material or relevant allegations When a defendant makes a counterclaim denominated as such and the plaintiff fails to make a reply, the material or relevant averments of the counterclaim are deemed admitted. 2. Rules of Civil Procedure 8, 13 — failure to reply to counterclaim — allegations not deemed admitted In an action to recover under a fire insurance policy in which defendant insurer counterclaimed for an amount it had paid to the mortgagee, plaintiffs' failure to file a reply to the counterclaim did not constitute an admission of allegations in the counterclaim that plaintiffs violated conditions of the policy by burning the building, increasing the hazard and misrepresenting certain facts so as to defeat plaintiffs' right to recover under the policy where such allegations were not material or necessary to defendant's recovery because the parties had stipulated that defendant was entitled to a credit or judgment on its counterclaim for the amount it had paid the mortgagee regardless of any violation of the policy by plaintiffs. G.S. <cross_reference>1A-1</cross_reference>, Rule 8 (d). 3. Evidence 22.2 — guilty pleas in district court — exclusion of evidence In an action to recover under a fire insurance policy on a building used as a private men's club, the trial court's exclusion of insured's testimony on cross-examination that he pleaded guilty in district court to operating an illegal gambling house at the club and operating a social club without an A.B.C. permit, if erroneous, was not prejudicial to defendant insurer where insured further explained that he entered the guilty pleas in district court without an attorney pursuant to a plea bargain agreement, that he appealed his cases for<page_number>Page 2</page_number> a trial de novo in the superior court because the State did not carry out its part of the plea bargain, that he retained an attorney to represent him in the superior court, and that all charges against him were dismissed in the superior court. 4. Insurance 136 — action on fire policy — sufficiency of evidence to support findings In an action to recover under a fire insurance policy in which defendant insurer alleged that the fire was deliberately set, the evidence was sufficient to support findings by the trial court that an S.B.I. agent saw fuel lines in the floor but could not say where they were and that a second S.B.I. agent couldn't recall seeing fuel lines in the floor but thinks he would remember them if they were there.

1. Constitutional Law 67 — disclosure of identity of person not required Defendant's constitutional rights were not violated by the trial court's denial of his motion to require the State to disclose the full identity of a man called "Pete" who introduced to defendant an undercover agent who allegedly purchased cocaine from defendant or to dismiss the charges against defendant where there was nothing in the record to indicate that "Pete" was an informer or that he participated in the drug<page_number>Page 35</page_number> transaction for which defendant was tried, and where the State in no way relied on "Pete's" activities to gain an indictment or conviction of defendant. 2. Criminal Law 162 — necessity for objections Defendant's failure to object to questions on cross-examination about his criminal record constituted a waiver of his objections. 3. Constitutional Law 46, 49 — denial of motion to appoint new counsel — waiver of counsel — effective assistance of counsel Defendant was not denied the effective assistance of counsel at his trial on an habitual felon charge when the court denied his request for the discharge of his court-appointed counsel and the appointment of new counsel after the jury had returned a verdict against defendant on one narcotics charge and while it was deliberating on a second narcotics charge where the court found that defendant's counsel was competent, the court made the determinations required by G.S. <cross_reference>15A-1242</cross_reference>, defendant made it clear to the court that he wanted newly-appointed counsel or none at all, and defendant voluntarily and understandingly waived his right to counsel on the habitual felon charge.

1. Master and Servant 93.3 — workers' compensation proceeding — expert medical testimony — history of plaintiff different from plaintiff's testimony In a proceeding to obtain compensation for disability allegedly resulting from byssinosis, the Industrial Commission erroneously concluded that the testimony of an expert medical witness as to the nature of plaintiff's illness was not competent because the history plaintiff gave the witness differed somewhat from plaintiff's testimony at the hearing and from plaintiff's statements in an insurance application since such conflicts bore only upon the weight to be given to the testimony of the witness, and the witness testified that such conflicts would make no difference in his diagnosis. 2. Evidence 50.1; Master and Servant 93.3 — workers' compensation proceeding — expert medical testimony — witness not treating physician In a proceeding to obtain compensation for disability allegedly resulting from byssinosis, the Industrial Commission erroneously concluded that the testimony of an expert medical witness as to the<page_number>Page 129</page_number> nature of plaintiff's illness was incompetent because the witness was not a treating physician but had merely examined plaintiff for diagnostic purposes where the witness's diagnosis was based not only upon the history given to him by plaintiff but more specifically upon his own objective examination and tests. 3. Master and Servant 97.1 — workers' compensation — disability benefits — failure of Commission to consider competent evidence — remand An action in which the Industrial Commission denied plaintiff compensation for disability allegedly resulting from byssinosis must be remanded for further proceedings where the Industrial Commission erroneously failed to consider all the competent evidence adduced at the hearing as to what extent plaintiff's disability was caused by his occupational disease.

1. Homicide 21.9 — voluntary manslaughter — sufficiency of evidence In an action in which defendant was charged with the murder of his former wife, the evidence was sufficient to survive defendant's motion to dismiss and to require submission of the charge of voluntary manslaughter to the jury where the evidence tended to show that the victim was last seen alive by her grandchildren arguing with defendant some time after 1:00 a.m.; that she was found dead by them around 11:00 a.m. the same day; that the victim died from a stab wound to the chest and the knife<page_number>Page 173</page_number> blade was found in the wound; that two paper towels were found in a trash can on top of a handle which matched the knife blade found in the victim's body; that laboratory analysis showed that the blood spot had an enzyme component matching defendant's blood; that the children had neither heard nor seen anyone enter the house during the night; that there were no signs of forcible entry; and that defendant's room, when he was arrested, bore blood spots that matched defendant's A-B-O grouping. 2. Constitutional Law 30 — test on blood stained towels — admissibility of In a homicide case, admission of testimony regarding tests done on blood stained towels was proper since defendant was aware of the existence of the paper towels and of the lab results showing that the blood thereon could have been defendant's and could not have been the victim's. Had defendant made a timely motion concerning the towels, he could have had an independent analysis of the blood spots on the towels; however, a period of more than six months elapsed from the date of seizure to the date of defendant's motion seeking exclusion of evidence regarding tests done on the paper towels, and more than six months had elapsed since the towels had been destroyed. 3. Criminal Law 89.2 — testimony concerning TV movie at time of crime — admission not prejudicial error In a homicide case in which one of the victim's grandchildren stated she had seen defendant and the victim arguing at a time when a western movie was on TV, it was not prejudicial error to allow an officer to testify that he "set up an appointment with Channel 18 to view a western movie" that was shown after the time defendant had stated he had left the victim's home. 4. Criminal Law 75.3 — statements by defendant — admissibility Where all the evidence presented at a voir dire hearing on a motion to suppress statements made by defendant to an officer indicated that the statements were made freely and voluntarily and with the full understanding of defendant's rights, the trial court properly admitted the statements.

1. Rules of Civil Procedure 56 — questions of law — summary judgment Summary judgment was proper where only questions of law were presented for determination by the court. 2. Convicts and Prisoners 2 — prisoner receiving mental health treatment — access to mental health records The legislature did not intend that prison-operated mental health facilities be included within the meaning of "treatment facility" as defined in G.S. 122-36 (g) so as to give a prisoner undergoing mental health care in prison a right of access to his mental health records pursuant to G.S. 122-55.2. Rather, the rights and privileges of mental health patients who are in the custody of the Department of Corrections are determined by the rules and regulations adopted by the Department pursuant to G.S. <cross_reference>143B-261.1</cross_reference>. 3. Convicts and Prisoners 2 — inspection of mental health records — no common law right A prisoner does not have a common law right to inspect his mental health records. 4. Convicts and Prisoners 2 — denial of access to prison mental health records — no violation of equal protection Prisoners receiving mental health treatment who are transferred pursuant to G.S. 122-85 to treatment facilities operated by the Department of Human Resources are not entitled to have their mental health records provided to their attorneys pursuant to G.S. 122-36 (g)<page_number>Page 181</page_number> and G.S. 122-55.2; rather, they are subject to an administrative rule adopted pursuant to G.S. <cross_reference>143B-261.1</cross_reference> which does not extend to prisoners or their attorneys the right to see the prisoners' mental health records. Therefore, the equal protection rights of a prisoner receiving mental health treatment in prison were not violated by the denial to his attorney of access to his mental health records since there was no disparity concerning the mental health records of prisoners receiving treatment in prison and those receiving treatment in a Department of Human Resources facility. 5. Constitutional Law 78; Convicts and Prisoners 2 — denial of prisoner access to mental health records — no cruel and unusual punishment The denial to a prisoner of access to his mental health records does not subject him to cruel and unusual punishment.

1. Rules of Civil Procedure 20, 23 — proper joinder of parties — all plaintiffs not testifying Under G.S. <cross_reference>1A-1</cross_reference>, Rule 20 (a), permissive joinder, plaintiffs, landowners in a beach development, were entitled to sue collectively defendant landowners without being certified as a class for the purposes of a G.S. <cross_reference>1A-1</cross_reference>, Rule 23 class action. Their claims arose out of the same occurrences, and the testimony of some of the plaintiffs, plus the<page_number>Page 220</page_number> interrogatories and requests for admissions provided sufficient evidence as to all the plaintiffs' claims to withstand defendants' motion to dismiss. 2. Dedication 1 — implied easement by dedication — sufficiency of evidence Plaintiff landowners' evidence was sufficient to prove the existence of an implied easement by dedication on the land to which defendants asserted title where the evidence showed that defendants acquired a quitclaim deed to the disputed land for $100 in 1976; and that defendants' and plaintiffs' deeds specifically refer to one of two recorded maps which designate defendants' property as a park area.

1. Larceny 4 — larceny by employee — sufficiency of indictment In a prosecution for larceny by an employee, an indictment which alleged that cows were delivered to defendant "to be kept to the use of" his employer sufficiently alleged a trust delivery, and it was not necessary for the indictment to allege who delivered the cows to defendant. 2. Larceny 4 — larceny by employee — age not essential element in indictment In a prosecution for larceny by employee, an indictment was not inadequate because it failed to allege that defendant was at least 16 years of age. A proviso in the larceny by employee statute, G.S. <cross_reference>14-74</cross_reference>, providing "that nothing contained in this section shall extend to . . . servants within the age of 16 years," withdraws a class of defendants from the crime of larceny by an employee. Because the phrase creates an exception to G.S. <cross_reference>14-74</cross_reference>, age is not an essential element which the indictment must allege. 3. Larceny 1 — distinction between larceny by employee and common law larceny — no fatal variance between indictment and evidence There was no fatal variance between an indictment charging defendant with larceny by an employee and the evidence offered at trial where the evidence tended to show defendant was employed as foreman of a farm, was in charge of 100 or so cattle, and wrongfully carried away some of the cattle. The evidence did not prove a common law larceny offense as the evidence did not support the inference that defendant originally wrongfully acquired the property.<page_number>Page 229</page_number>

Master and Servant 108 — disqualification for unemployment compensation A determination by the Employment Security Commission that claimant is disqualified for unemployment compensation benefits because she left work voluntarily without good cause attributable to her employer was supported by evidence and findings that on 30 August 1979 claimant submitted to her superior a letter stating "please accept my resignation effective June 30, 1980"; this was accepted by her employer; on 18 December 1979 claimant advised respondent employer that she wished to rescind her resignation; claimant did not file another job application with respondent employer; and claimant was aware that respondent employer was considering other individuals to fill the vacancy created by her resignation.

1. Damages 11.2; Master and Servant 69 — discharge for seeking workers' compensation benefits — no punitive damages No punitive damages may be recovered in an action based on an employee's discharge for seeking workers' compensation benefits since the<page_number>Page 446</page_number> wording of G.S. <cross_reference>97-6.1</cross_reference> (b) clearly limits recovery to damages "suffered by the employee" as a result of the employer's violation of the Act. 2. Master and Servant 69; Unfair Competition 1 — employee's discharge for seeking workers' compensation benefits — no treble damages In an action based on an employee's discharge for seeking workers' compensation benefits, the trial court correctly dismissed the employee's claim for treble damages for defendant's alleged unfair trade practices in violation of G.S. <cross_reference>75-1.1</cross_reference> since employer-employee relationships do not fall within the intended scope of G.S. <cross_reference>75-1.1</cross_reference>.