diff --git a/nc/11253274.json b/nc/11253274.json new file mode 100644 index 0000000000000000000000000000000000000000..806268fc2bc861de4b35e7b56078fdc7b934e670 --- /dev/null +++ b/nc/11253274.json @@ -0,0 +1 @@ +"{\"id\": \"11253274\", \"name\": \"CITIZENS NATIONAL BANK OF DURHAM v. MOLLIE F. BURCH, admx., et al.\", \"name_abbreviation\": \"Citizens National Bank of Durham v. Burch\", \"decision_date\": \"1907-10-30\", \"docket_number\": \"\", \"first_page\": \"316\", \"last_page\": \"318\", \"citations\": \"145 N.C. 316\", \"volume\": \"145\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:36:54.377156+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CITIZENS NATIONAL BANK OF DURHAM v. MOLLIE F. BURCH, admx., et al.\", \"head_matter\": \"CITIZENS NATIONAL BANK OF DURHAM v. MOLLIE F. BURCH, admx., et al.\\n(Filed 30 October, 1907).\\nNegotiable Instruments \\u2014 Principal and Surety \\u2014 -Endorser without Knowledge.\\nA and B signed a negotiable note apparently as joint principals, when, in fact, the latter was surety for the former. Appellant signed the note by writing his name across the back, with the word \\u201csurety\\u201d underneath: Held, in the absence'of any evidence that appellant knew of the relation between the makers, he was surety for the two, and that surety B could not compel contribution.\\nCivil actioN, tried before Justice, J., and a jury, at March Term, 1901, of the Superior Court of Dueham County, and appealed by the defendant J. W. Smith.\\nOn 16 July, 1906, Joab Burch and L. R. Burch executed a note, of which the following is a copy:\\n$1,000.00. Dueham, N. C., July 16, 1906.\\nQue hundred and twenty days after date we promise to pay to the order of The Citizens National Bank of Durham, at Durham, N. 0., one thousand and 00-100 dollars. Negotiable and payable at The Citizens National Bank of Durham, at Durham, N. 0., for value received, etc.\\n' (Signed) Joab Buech,\\nL. E. Bueoh.\\nAcross the back of this note is written the words \\u201cJ. W. Smith, surety.\\u201d\\nThe Court submitted these issues:\\n1. Are the defendants, Mollie F. Burch, administratrix of Joab Burch, L. E. Burch and J. W. Smith, indebted to the plaintiff in the sum of $1,000 and interest, as alleged in the complaint ? Answer: Yes.\\n2. Is the estate of Joab Burch insolvent? Answer: Yes.\\n3. Is L. E. Burch a surety on the note sued upon_? Answer: Yes.\\n4. Did defendant J. W. Smith know, at the time he endorsed the note, that L. E. Burch was surety? Answer: No.\\nFrom the judgment rendered, declaring him a cosurety with L. E. Burch, the defendant Smith appealed.\\nWinston & Bryant for plaintiff.\\nGiles & Sylces for defendant.\", \"word_count\": \"751\", \"char_count\": \"4174\", \"text\": \"BeowN, J.\\nAccording to the facts as found by the jury at the time the note was presented to appellant for endorsement as surety, it contained the names of Joab Burch and L. E. Burch as principals, and Smith endorsed the same on its back as surety for them as principals, having no knowledge that Joab Burch and L. E. Burch were otherwise than principals, or that the defendant L. E. Burch bore any relation to the note other than as a coprincipal with Joab Burch. The form of the note justified Smith iu supposing that the two Burchs were borrowing the money jointly, and were jointly liable for it as coprincipals, and that he was contracting as surety for the two, and not for the one. One who signs in form and appearance as a principal and maker of a note is bound as such to all persons who subsequently deal with the paper without knowledge of his true relationship to it. It is entirely competent for one person to become surety for other sureties, or to limit the extent of his liability with respect to other sureties. The test of liability is the intent of the parties as indicated by their agreement. There is no finding as to any agreement here which warranted the court in holding Smith other than as he is bound by the face of the instrument he signed, and, according to that, he is bound as surety for the two apparent principals.\\nA person dealing with a negotiable instrument has a right to act upon it as it appears upon the face of it. Daniels Negotiable Instruments, Vol. I, 311. This is also the doctrine laid down in Cragin v. Lovell, 109 U. S., 194. In order to constitute the appellant Smith a cosurety with the defendant L. R. Burch, there must have been a mutual understanding between the parties to that effect. Smith v. Smith, 16 N. C., 173; Cowan v. Baird, 77 N. C., 201; Bulkeley v. House, 62 Conn., 459; Thompson v. Sanders, 20 N. C., 541; Dawson v. Petway, 20 N. C., 531; Sayles v. Sims, 73 N. Y., 552; Sherman v. Black, 49 Vt, 198; 1 Brandt on Suretyship (2d Ed.), sec. 260. According to these authorities, it is plain that his Honor erred in holding the appellant as a co-surety with L. R. Burch.\\nThe cause is remanded, with directions to modify the judgment rendered in accordance with this opinion. \\u2022\\nThe costs of this Court will be taxed against L. R. Burch, the appellee.\\nModified.\"}" \ No newline at end of file diff --git a/nc/11253310.json b/nc/11253310.json new file mode 100644 index 0000000000000000000000000000000000000000..5db3c7c94bf453b5d0d864024e5de94bcf02c183 --- /dev/null +++ b/nc/11253310.json @@ -0,0 +1 @@ +"{\"id\": \"11253310\", \"name\": \"GODWIN et al. v. MURCHISON NATIONAL BANK et al.\", \"name_abbreviation\": \"Godwin v. Murchison National Bank\", \"decision_date\": \"1907-10-30\", \"docket_number\": \"\", \"first_page\": \"320\", \"last_page\": \"331\", \"citations\": \"145 N.C. 320\", \"volume\": \"145\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:36:54.377156+00:00\", \"provenance\": \"CAP\", \"judges\": \"EeowN, avail themselves of its privileges.\\\" And again, on page 12, the Court says: \\\"No question arises as to the-authority of Congress to provide for the appropriation of private property to the uses of the telegraph, for no such attempt has been made. The use of public property alone is granted. If private property is required, it must, so far as the present legislation is concerned, be obtained by private arrangement with its owner. No compulsory proceedings are authorized. State sovereignty under the Constitution is not interfered with. Only National privileges are granted.\\\"\\nSo broad a disclaimer should seem to settle the question, and on reason and authority we concur in the effect of the Federal decisions that the act of Congress referred to gives the defendant no right to any part of the land of the plaintiff, or to any use therein. Tel. Co. v. R. Co., 6 Bissell, 158; Tel. Co. v. Tel. Co., 9 Bissell, 72.\\nThe defendant again contends that as its poles are located' on the right-of-way of the railroad company, that is, its potential right-of-way, and as it has acquired its easement from the railroad company by condemnation proceedings under The Code, it owes no further duty to the owner of the land. We can not concur in this view. The land on which the poles. are situated is not in tbe actual possession of tbe railroad \\u2022company, and apparently never bas been. On tbe contrary, it bas been in constant cultivation by tbe plaintiff and those under wbom be bolds. Tbe nature of tbe easement acquired by railroad companies under condemnation proceedings bas been too recently considered by tbis Court to1 require further discussion. Shields v. Railroad, 129 N. C., 1. In that case tbe Court says, on page 4: \\\"It therefore seems to be tbe settled law in tbis State, so far as judicial construction can settle a question, that a railroad company by condemnation proceedings only acquires an easement upon tbe land condemned, with tbe right to1 actual possession of so much only thereof as is necessary for tbe operation of its road, and to protect it \\u2022against contingent damages.\\\" It is not .contended that tbe lines of tbe defendant are in any degree essential to tbe operation of tbe railroad. On tbe contrary, it is stated in the opinion of tbe Court, in tbe proceedings under which tbe defendant claims to have acquired its easement, that \\\"tbe railroad company denies altogether that any benefit or advantage can arise to it in the erection of tbe telegraph lines, and, on tbe contrary, avers that it is detrimental to it in the last degree.\\\" Postal Tel. Co. v. So. Ry. Co., 89 Fed. Rep., 190, 196. Under the- circumstances, it is clear that the additional easement claimed by the defendant is an additional burden upon tbe land, for which tbe owner is entitled to just compensation. Tel. Co. v. Railroad Co., supra; Dailey v. State, 51 Ohio St, 348; Am. Tel. Co. v. Pearce, 71 Md., 535; Keasbey on Electric Wires, Sec. 185.\\nTbe Maryland case is an able and elaborate discussion of tbe entire question.\\nTbe kindred question, involving tbe same principle, of railroads upon streets is fully considered in the well-known cases of Story v. N. Y. Elevated R. Co., 90 N. Y., 122, 43 Am. Rep., 146, and Lahr v. Same, 104 N. Y., 268, in which. it was held that the abutting owners were entitled to compensation for the additional burden imposed upon the streets by the elevated roads. White v. Railroad, 113 N. C., 610, 22 L. R. A., 627, 37 Am. St. Rep., 639, is also a well-considered case in our own Reports.\\nThe plaintiff was not a party to the condemnation proceedings, nor have any proceedings been instituted against him by the defendant to acquire an easement or any other right. The defendant relies upon that part of Section 2010 of The Code which says: \\\"And if the use or right sought be over or upon an easement or right-of-way, it shall be sufficient to give jurisdiction if the person or corporation owning the easement or right-of-way be made a party defendant.\\\" Here the defendant stops, but The Code immediately proceeds to say: \\\"Provided, that only the interest of such parties as are brought before the Court shall be condemned in any such proceedings.\\\" By the very terms of the statute, the plaintiff now stands as if no condemnation proceedings had ever been brought\\nAgain, the defendant contends that the plaintiff should have proceeded to have his damages assessed under Chapter 49 of The Code, but Section 2010 gives the right to file a petition in condemnation proceedings to the telegraph company alone, and, with Section 2011, specifically provides how the proceeding shall be commenced. Section 2012 evidently refers to the proceedings subsequent to the filing of the petition and the service of the required notices. In other words, it refers to the proceedings after the parties are all before the Court. This is so held, and we think correctly held, in Telegraph Co. v. Railway Co., supra, wherein the Court says, on page 192: \\\"Inasmuch as Section 2010 sets forth all the necessary statements for the petition of the telegraph company, and Section 2011 provides for its service, only so much of the railroad law as directs proceedings after the petition is before the Court is made applicable to telegraph companies. \\u2022 For tbe same reason, Section 1944 can not be made to apply to telegraph companies.\\\"\\nAgain, the defendant contends that, as the plaintiff did not own the land when the poles, were planted, he can not recover for the appropriation of the easement. This point was directly decided in Beach v. Railroad, 120 N. C., 498, a decision which has since been uniformly followed by this Court. A subsequent purchaser can not recover for a completed act of injury to the land, as, for instance, the unlawful cutting down of trees; but if the trespasser unlawfully remains upon the land after the sale, or returns and carries away the trees, he becomes liable to the then owner, in the first case as for a continuing trespass, and in the latter for a fresh injury. If, in addition to this, the trespasser seeks to acquire the right to remain, he can do so only by the consent of the owner or under the principle of eminent domain. This is not the perpetration of a wrong, but the lawful acquisition of a right, and the damages incident thereto' must be paid to- the owner from whom the right is acquired. Aside from this action, the defendant has acquired no easement whatever as against the plaintiff, and if it takes that easement now, it must pay the man from whom it takes it. To say that one may acquire an easement in the land simply by an unlawful entry, is an attempted extension of the doctrine of Squatter Sovereignty to an extreme which we feel entirely unable to concede. Livenan v. Railroad, 109 N. C., 52; S. C., 114 N. C., 692.\\nIn the case at bar, the sole issue of permanent damages was submitted, without objection, and it is evident the parties intended that the case should so end if the plaintiff could maintain this action.\\nWe see no material error in the admission of evidence.\\nThis case does not come under the act of 1895, Chap. 224, which applies exclusively to railroads, but we think that per manent damages can be awarded in tbis action, and the easement thereby conveyed under the principle enunciated in Ridley v. Railroad. This Court has said in Wiley J. Lassiter v. Railroad, 126 N. C., 509: \\\"Railroads are quasi public corporations charged with important public duties, which in their very nature necessarily invoke the power of eminent domain; and therefore the Courts, with practical unanimity, have created a species of legal condemnation by the allowance of so-called 'permanent damages.' Our leading case upon this subject is Ridley v. Railroad, 118 N. C., 996, 22 L. R. A., 708, where, apparently for the first time in this State, the rule is distinctly enunciated and defined. It is further developed and affirmed in Parker v. Railroad, 119 N. C., 677; Beach v. Railroad, 120 N. C., 498 ; Nichols v. Railroad, 120 N. C., 495; Hocutt v. Railroad, 124 N. C., 214. The provision in the act of 1895 incidentally providing for a statutory easement, rather by implication than direct terms, seems to us to be in effect but little more than a legislative affirmation of the rule already enunciated in other jurisdictions and adopted in Eidley's case, which was decided a year after the act was passed.\\\"\\nA parity of reasoning would extend this principle to telegraph companies, as it has already been extended to water companies in Geer v. Water Co., 127 N. C., 349. In that case the Court says, on page 354: \\\"Although not a railroad company, we think that the defendant is a quasi public corporation in its fullest sense, and that neither the public interest nor the public safety would permit its abatement as a nuisance. We see no reason why permanent damages can not be assessed under the general principles in equity, and, in fact, we do not understand that this right is questioned by either party. The awarding. such permanent damages is equivalent to the acquisition of an easement by condemnation.\\\"\\nThe refusal of the Court below to set aside the verdict on account of excessive damages can not be reviewed in this Court. Goodson v. Mullen, 92 N. C., 211; Edwards v. Phifer, 120 N. C., 405; Norton v. Railroad, 122 N. C., 910.\\nIn its answer, the defendant alleges \\\"that the defendant is an interstate telegraph company, and all its lines in the State of North Carolina are engaged in interstate commerce, by their connection with other lines of said company, extending to and through all of the States of the Union, and the principal towns and cities therein, and cable lines extending across the Atlantic Ocean into ,the principal cities of all the nations of the earth.\\\" We do not know that we fully comprehend the extent of this allegation, but we can perhaps do no better than to quote the words of Judge Simonton in Telegraph Co. v. Railway Co., supra, on page 192, as follows: \\\"It is true that the purposes of the petitioner are greatly fox the public benefit, that it is an important factor in interstate commerce, one of the agencies \\u2014 and a most valuable agent \\u2014 -in interstate commerce, and that it is of most essential service to- tho citizen in time of peace and to the Government in time of war. But the underlying proposition in our civilization and in Anglo-Saxon liberty is the protection of the citizen in the safety of his person and in the undisturbed enjoyment of his property. And when he is called upon to surrender that property against his will for a public purpose, he is entitled to all the safeguards which the law has thrown around the exercise of the tremendous, though wholesome, right of eminent domain.\\\" In the absence of material error, the judgment is\\nAffirmed.\\nMONTGOMERY, J., dissents.\"}" \ No newline at end of file diff --git a/nc/11274162.json b/nc/11274162.json new file mode 100644 index 0000000000000000000000000000000000000000..2d524d8a8b6e6c6da6c56ca8acd38bb34fa1871e --- /dev/null +++ b/nc/11274162.json @@ -0,0 +1 @@ +"{\"id\": \"11274162\", \"name\": \"EMILY NEVILLE v. J. R. POPE\", \"name_abbreviation\": \"Neville v. Pope\", \"decision_date\": \"1886-10\", \"docket_number\": \"\", \"first_page\": \"346\", \"last_page\": \"352\", \"citations\": \"95 N.C. 346\", \"volume\": \"95\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T00:22:17.235960+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EMILY NEVILLE v. J. R. POPE.\", \"head_matter\": \"EMILY NEVILLE v. J. R. POPE.\\n\\u25a0Coverture \\u2014 Jurisdiction of Justices of the Peace \\u2014 Injunction\\u2014 Pleading \\u2014 Irregular Judgments.\\n1. A feme covert may be sued in the court of a justice of the peace, for a debt due by her, or on a contract made by her before marriage, or for a debt contracted by her as a free-trader.\\n2. In an action to enjoin the collection of a judgment on the ground of\\nwant of jurisdiction in the court which rendered it, a transcript of the record should be set out, so that the court can see from the record itself, whether or not there was a fatal lack of jurisdiction. 8. Where the court has jurisdiction, errors m the judgment cannot be corrected by an injunction, but only by appeal, except where fraud is alleged.\\n4. Where it is sought to enjoin the collection of a judgment on the ground of want of jurisdiction in the court which rendered it, every presumption is in favor of the jurisdiction, and it must be made to appear affirmatively from the record, that the court had no jurisdiction.\\n5. A motion in the cause is the proper remedy for setting aside an irregular judgment.\\n6. Where a feme covert was sued with her husband, whom she instructed to make a proper defence to the action, which he failed to do; It ivas held, no ground for an injunction to restrain the collection of . the judgment, in the absence of fraud.\\n7. The defence of coverture must be made in apt time in order to be available.\\n(Vase v. The Building Association, 91 N. C., 55; Grantham v. Kennedy, Ibid., 148; Spillman v. Williams, Ibid., 483; Williamson v. Hartman, 92 N. C., 236; Burgess v. Kirby, 94 N. C., 575; Nicholson v. Gox, 83 N. C., 48; Vick v. Pope, 81 N. C., 22; cited and approved; Dough-erty v. Sprinkle, 88 N. C., 300, cited, distinguished and approved).\\nMotioN to continue an injunction to the hearing, heard by Philips, Judge, at Chambers in Halifax, on November 18, 1885.\\nThis action is brought to obtain relief by injunction for the causes specified in the verified complaint, the material parts of which are as follows:\\n\\u201c 1. That on the.day of October, 1869, she and her husband, Elijah K. Neville, executed their note to one Rosa Pope, in the sum of fifty-five dollars, and that on the 3rd day of August, 1880, the defendant caused a judgment to be rendered on said note against the plaintiff and the said Elijah K. Neville, before John O\\u2019Brien, Escp, a justice of the peace of Halifax county, and caused the same to be docketed in the office of the Clerk of the Superior Court of said county, in judgment docket, vol. 4, number 1188, on the said 3rd day of August, 1880.\\n\\u201c 2. That at the time of the execution of said note, and the rendition of said judgment, the plaintiff was a feme covert domiciled in Halifax county, and living with her husband, the said Elijah K. Neville, and at the aforesaid times .she was not a free-trader, and never has been one.\\n\\u201c 3. That in the trial of said cause before the said justice, the defendant did not allege in his pleadings that the plaintiff was possessed of a separate estate, and that the contract was such as the statute renders her competent to make, nor did he allege that it was for her advantage to make said note or contract.\\n\\u201c 4. That the plaintiff instructed her husband, the said Elijah K. Neville, to make the proper defences for her, to appeal from said judgment to the Superior Court, but for some cause, unknown to this plaintiff, he failed so to do.\\u201d\\nIt is further alleged, that the defendant has caused an exe'tion to be issued upon the judgment mentioned, and is about to require the sheriff to sell a part of a tract of land in which the plaintiff has a life estate, to her \\u201c irreparable damage,\\u201d &c. She demands judgment: .\\n1. That the defendant, his agents and attorneys, be restrained from selling, disposing of, or in any way interfering with said land.\\n2. That said judgment be set aside and declared void, and of no effect.\\n3. For such other relief as may be just and proper, and for costs.\\nThe defendant filed the following affidavit:\\n\\u201c Jacob R. Pope, being duly sworn, says that at the time,, before the justice of the peace, when the judgment set out in the complaint was rendered against the plaintiff herein, the defence of coverture was not set up, nor was it made to appear to the court that she was a married woman; nor, as he is informed and believes, was she so described in the summons in said action.\\u201d\\nTreating the complaint as an affidavit, the Court, at Chambers, granted a restraining order, and afterwards continued the same as an injunction until the case should be heard upon the merits. From this order the defendant appealed to. this Court.\\nMessrs. E. T. Banch and David Bell, filed a brief for the-Plaintiff.\\nMr. R. 0. Burton, Jr., for the defendant.\", \"word_count\": \"2403\", \"char_count\": \"13290\", \"text\": \"Merrimon, J.\\n(after stating the facts). It is not true, as seems to be supposed, that the court of a justice of the peace-has no jurisdiction in any case of a married woman, and of a cause of action against her, of which that court would ordi- . narily have jurisdiction, if the party sued were a feme sole, or a male person. There is no provision of the constitution, or of any statute of this State, that excepts her from such jurisdiction, nor is the nature of her marital relation such, under existing law, as to exempt her from it in all cases. She may be sued in that court for a debt due from her, or a contract made, or for a wrong done by her before the marriage. The statute, (The Code, \\u00a71822 \\u2014 \\u00a71823), expressly provides that the husband shall not be liable on such account, and that the- liability of tlio wife \\\" shall not be impaired or altered by such marriage.\\\" And so, also, she may be sued as a \\\" free-trader \\\" under the statute, (The Code, \\u00a71828). As such, she is allowed to contract and deal as if she were a feme sole. And perhaps she may be so sued in some other cases.\\nThe precise nature of the cause of action before the justice of the peace, in which the judgment complained of was .given, does not appear, as it should do. A properly certified transcript of the record of that action, including the judgment, ought to have been set forth in the complaint, or attached to it with proper averments, or ought to have accompanied the motion for an injunction, so that the Court could see from the record itself whether or not, in that action, the justice of the peace could, in any view of it and the cause of action, have jurisdiction of the defendant therein; because, if upon the face of the record, the Court had any jurisdiction at all, then any errors of the Court in the course of the action could only be corrected upon appeal, and irregularities corrected, or the judgment set aside for irregularity, by motion in the action. From what appears, it may be that the justice of the -peace had jurisdiction and authority to give a judgment. As it is alleged that the defendant in the action was served with a summons, and he assumed jurisdiction, the presumption is that he properly had it, unless it appears from the record itself that he did not, in which case, the judgment would be void.\\nIf the verified complaint in this action be taken as true, it does not appear from it that the justice of the peace had no jurisdiction of the feme defendant, the present plaintiff, in the action before him. It is not alleged that the judgment is void, nor do the facts alleged render it so necessarily \\u2014 that it is, is left to vague inference. In this, and like cases, the material facts should be alleged positively and with precision, and as we have said above, a duly authenticated copy of the record of the action in which the judgment complained of was given, should be produced.\\nJudgments are serious and important tilings, and are supposed to have been given by Courts upon mature consideration, and they should not be interfered with for light, trivial and possible causes of objection to them. There should be substantial cause, and this should appear with reasonable certainty to warrant interference with them by injunction or otherwise.\\nThe judgment complained of was not, so far as appeal's, absolutely void, and thus to bo treated everywhere. It may have been erroneous. If so, the party against whom it was given ought to have appealed to the Superior Court, where the error might have been corrected. It may have been, and may be, irregular in material respects. If so,- then the remedy would be by motion in the action to set the judgment aside, because of such irregularity. Vass v. Building Association, 91 N. C., 55; Grantham v. Kennedy, Ibid., 148; Spillman v. Williams, Ibid., 483; Williamson, v. Hartman, 92 N. C., 236; Burgess v. Kerby, 94 N. C., 575.\\nThat the plaintiff instructed her husband to make proper-defences for her, and to appeal to the Superior Court, if need be, and he failed to do so, is no ground for relief by injunction, in the absence offraud, and this is not alleged.' She might have applied at any time within twelve months next after the judgment was given, to set it aside because of her mistake, inadvertence, surprise or excusable neglect. That she did not, if she had good cause, was her neglect or her misfortune. Nicholson v. Cox, 83 N. C., 48.\\nA married -woman may sue and be sued, and when sued, must make defence, or her husband, -who must be served with the summons served upon her, (The Code, \\u00a71824,) may, by leave of the Court, with her consent, defend the action in her behalf. If she and he fail to make defence, the Court may give judgment, and it will be effectual and conclusive, although erroneous, until it shall be modified or reversed in the regular course/.of procedure- In every such case, it must be assumed tliat the cause of action sued upon, and the facts appearing, were such as warranted the judgment, in the absence of any defence made at the proper time and in the proper manner. If the feme covert could avail herself of the defence of coverture, she ought to have made it in apt time. As she did not, it must be taken that she could not, or that she did not desire or intend to avail herself of it. This was decided in Vick v. Pope, 81 N. C., 22.\\nIn that case, the plaintiff took judgment by default against the husband and wife, simply filing the note sued upon,, without a complaint, the defendants having been served with process, but failing to appear and make defence. In the opinion of the Court, the Chief Justice said : \\\" The judgment conclusively establishes the obligation, and such facts must be assumed to exist as warranted its rendition, inasmuch as neither coverture nor any other defence was set up in opposition, to defeat it. As then, a married woman may sue, and with her husband be sued on contracts, they and each of them must, at the proper time, resist the recovery as the defendants, and their failure to do so, must be attended with the same consequences.\\\"\\nThis Court did not decide in that case, that the note executed by the wife was or was not void. It only decided that as she failed to make defence, it must be conclusively taken that the cause of action was such a one as warranted the judgment. And so it must be taken in this case, until the judgment shall be set'aside, because of irregularity, or other good cause made to appear in some proper way allowed by law, if this can be done.\\nThe counsel for the plaintiff relied upon and laid great stress upon Dougherty v. Sprinkle, 88 N. C., 300. In that case, the plaintiff sued a married woman bef\\u00f3te a justice of the peace, \\\" upon a promise to pay for work done upon premises owned and held as her separate property\\\"; and this Court held that the court of the justice of the peace did not have- jurisdiction, as the promise sued upon was void because of her coverture ; that in such case, the remedy of the plaintiff was in a court of equity, if he had any, and the justice of the peace did not have such jurisdiction. The action was dismissed. But the defendant, the feme covert, made defence, pleaded her coverture, and from an adverse judgment appealed, first to the Superior Court, and from a like judgment there, to this Court.\\nIt may be, that if the' plaintiff in this case had made defence, pleaded her coverture, and had appealed from the adverse judgment given against her, she would have been successful; but she did not make defence at all, and as there was judgment against her according to the course of the Court, it must be treated as conclusive that the cause of \\u2022action, and the facts, were such as warranted the judgment given. The purpose of this action is plainly to obtain equitable relief against an alleged erroneous judgment at law. It is clear that equity will not grant such relief. A court of equity will never set aside or enjoin the enforcement of a judgment at law, on the ground of error or a mistake in granting it. Error or irregularity must be corrected in the way pointed out above. It would be otherwise if fraud were alleged and made the ground of application for the relief sought. Grantham v. Kennedy, supra, and the authorities there cited.\\nThere is error. The Court ought not to have granted the injunction. To the end the order appealed from may be reversed, and further steps taken in the action according to law, let this opinion be certified to the Superior Court. It is .-so ordered.\\nError. Reversed.\"}" \ No newline at end of file diff --git a/nc/11275094.json b/nc/11275094.json new file mode 100644 index 0000000000000000000000000000000000000000..d53aa090587eecdefa1680766b7fc446e6505ca9 --- /dev/null +++ b/nc/11275094.json @@ -0,0 +1 @@ +"{\"id\": \"11275094\", \"name\": \"STATE v. F. H. WATSON\", \"name_abbreviation\": \"State v. Watson\", \"decision_date\": \"1882-02\", \"docket_number\": \"\", \"first_page\": \"626\", \"last_page\": \"628\", \"citations\": \"86 N.C. 626\", \"volume\": \"86\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:39:27.936693+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. F. H. WATSON.\", \"head_matter\": \"STATE v. F. H. WATSON.\\nRemoval of Division Fence, not indictable.\\nThe removal of a fence dividing the fields of the defendant and the prosecutor, is not indictable under the statue (Bat.'Rev., ch. 32, \\u00a7 93,) where the fence is altogether on the land of the defendant.\\n(State v. Mason, 13 Ired., 341; State v. Williams, Busb., 197, cited and approved.)\\nIndictment for a misdemeanor tried at January Term, 1882, of Wake Superior Court, before Gilmer, J.\\nThe defendant was indicted for removing a fence contrary to the statute. Bat. Rev., ch. 32, \\u00a7 93. The jury returned a special verdict as follows: On the 27th of March, 1881, the defendant without the consent of the prosecutor moved a certain fence, dividing the cultivated field of the prosecutor from the field of the defendant and his brother. The said fence was established four years ago by the prosecutor and one Montague (who has since conveyed his land to the defendant and his said brother) as a division fence between them, but was located altogether on the land of said Montague, since conveyed as aforesaid to the defendant and his brother; and that only two months and nine days\\u2019 notice was given to the prosecutor of the defendant\\u2019s purpose to move the fence. If upon the foregoing facts, the court shall be of opinion that the defendant is guilty, then the jury find him guilty; and if otherwise, they find him not guilty. The judge being of opinion in favor of the defend-\\u2019 ant, gave judgment accordingly, and the solicitor for the state appealed.\\nAttorney General, for the State.\\nMessrs. A. M. Lewis & Son, for defendant.\", \"word_count\": \"478\", \"char_count\": \"2705\", \"text\": \"Ruffin, J.\\nIt being ascertained by the verdict that the fence, the removal of which gives rise to this prosecution, was altogether upon the defendant's land, the case falls within the decisions made in State v. Mason, 13 Ired., 341, and State v. Williams, Busb., 197. In both of those cases, the indictment proceeded under this same statute, and the construction given to it by the court, is, that it was not intended to embrace a case of destruction of property by the owner thereof; but that to bring a case within it, the party accused must be shown to have been guilty of an actual trespass upon the property of another. We cannot see that the case is at all varied by the fact, that the fence was intended to be a dividing one between the fields of the defendant and the prosecutor. As found by the jury, it was built upon the land which subsequently became the property of the defendant, and was in his actual possession; and while he may have violated another statute (Bat. Rev., eh. 48, \\u00a7 9, 10,) so as to' render him civilly liable, he cannot be proceeded against under an indictment.\\nNo error. Affirmed.\"}" \ No newline at end of file diff --git a/nc/11275338.json b/nc/11275338.json new file mode 100644 index 0000000000000000000000000000000000000000..fe94135161e33017300ecdb1c96802bd3e745bae --- /dev/null +++ b/nc/11275338.json @@ -0,0 +1 @@ +"{\"id\": \"11275338\", \"name\": \"JOSIAH B. COX v. PATRICK MURPHEY\", \"name_abbreviation\": \"Cox v. Murphey\", \"decision_date\": \"1837-06\", \"docket_number\": \"\", \"first_page\": \"257\", \"last_page\": \"259\", \"citations\": \"2 Dev. & Bat. 257\", \"volume\": \"19\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T17:59:46.356009+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOSIAH B. COX v. PATRICK MURPHEY.\", \"head_matter\": \"JOSIAH B. COX v. PATRICK MURPHEY.\\nArticles made in contemplation of marriage, whereby the intended: husband- \\u201c sells and assigns\\u201d to a trustee all the right in slaves belonging to the intended wife, \\u201c which he by operation of law may thereafter have,\\u201d do. not pass a title in the slaves to the trustee, but are merely executory, and. binding the husband after marriage, to make the necessary assurances to carry them into effect,\\nDetinue for sundry slaves, in whieh a case agreed, containing the following fauts, was, on the last Circuit, at Sampson, submitted to his Honor Judge Settee. The slaves demanded by the plaintiff, were the property of Susan B. Cox, who, prior to her marriage with Abner Branson, executed articles by which the intended husband- and the plaintiff, as- trustee, joined. The articles, after reciting the intended marriage, and the fact of the intended wife\\u2019s being possessed of the slaves in\\u00a1 dispute* and the intention to settle them upon her, proceeded as follows: \\u201c that, for and in consideration of the premises, and for and in consideration of the sum of, &c., to the said Abner Branson, by the said Josiah B. Cox in hand paid, the receipt whereof is hereby acknowledged, I, the sa^ Abner Branson, do hereby sell, assign, and deliver, alien, and confirm, and have by these presents, sold, assigned, &c., to the said Josiah B. Cox, all the right, title, estate, interest and benefit, which I may by operation of law acquire, derive, or receive, either in law or equity, in and to the said slaves. To have and to hold, &c. And the said Abner Branson doth promise, covenant, and agree, to, and with the said Josiah B. Cox, that he will, upon the solemnization of the said marriage, or at any time thereafter when requested by the said Josiah or Susan, make, execute, and deliver, all and every necessary title, deed, or conveyance, advised or directed by counsel learned in. the law, more completely to secure the intention of this indenturewhich is entirely to divest himself of all right, title, and estate, in and to the above-mentioned land and slaves, so that he nor his creditors shall have no right to sell or control the same. It is further agreed and understood, by and between the said parties, that the said Josiah may receive, hold, and keep in his possession, the aforesaid slaves, hiring out the same, and paying over the proceeds to the said Susan-; or suffer the same to remain in the use and occupancy of the said Abner, he paying therefor by way of hire, one dollar, on the first day; of January in each and every year, if demanded,\\u201d\\n' The marriage took place, and the slaves went into the-possession of the husband,' Abner Branson, and continued in his possession until his death, which took place within a few weeks thereafter ; .when they went into the possession of the plaintiff, the trustee; where they continued until the second marriage of his cestui que trust, Susan, with one Isaac W. Grice; when they passed into his (Griee\\u2019s) possession, until his death, which also took place in a few weeks after the marriage. The defendant administered upon the estate of Isaac ,W. Grice, the second: husband, and under the letters to him, claimed to retain the possession of his intestate.\\nHis Honor, the presiding judge, gave judgment pr\\u00ae forma for the defendant; and the plaintiff appealed.\\nBadger, for the plaintiff.\\nStrange and W. H. Haywood, for the defendant.\", \"word_count\": \"736\", \"char_count\": \"4349\", \"text\": \"Gaston, Judge.\\nThe decision of this case depends entirely on the question, whether the instrument executed by Abner Branson and Susan B. Cox, immediately before their marriage, transferred the property in the slaves therein mentioned, to the plaintiff, the trustee. The Court is of opinion, that in law, the instrument could not have this operation. The parties thereto must be intended, indeed, to have deliberately assented to all therein declared; but the question presents itself, what is thereby declared ? Abner Branson does not profess to sell or transfer the slaves to the trustee, but only to sell and assign the right, which by operation of law he may thereafter acquire in them. This was not the subject of sale or assignment. The instrument can be construed as executory only, and binding Branson, after marriage, to make the assurance or assurances necess\\u00e1ry to carry his covenant into effect.\\nPer Curiam. Judgment affirmed.\"}" \ No newline at end of file diff --git a/nc/11276057.json b/nc/11276057.json new file mode 100644 index 0000000000000000000000000000000000000000..beb45b44315d13e93b17524721a09d57e2e9b3a6 --- /dev/null +++ b/nc/11276057.json @@ -0,0 +1 @@ +"{\"id\": \"11276057\", \"name\": \"John Hicks v. William H. Gilliam\", \"name_abbreviation\": \"Hicks v. Gilliam\", \"decision_date\": \"1833-12\", \"docket_number\": \"\", \"first_page\": \"217\", \"last_page\": \"220\", \"citations\": \"4 Dev. 217\", \"volume\": \"15\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T18:39:58.006518+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John Hicks v. William H. Gilliam.\", \"head_matter\": \"John Hicks v. William H. Gilliam.\\nIll an action in against two wlio join their pleas and against whom after a joint trial, a joint judgment is rendered, an appeal cannot be allowed at the instance of one defendant only \\u2014 and if allowed by the County Court the Superior Court acquires no jurisdiction to try the cause, but is bound on the motion of the appellee to dismiss the appeal and award a procedendo\\u00ab The case of Sharp v. Jones and Winbourne, (3 MCurph 306,) distinguish^ ed from this case.\\nCosts in the Supreme Court are in the discretion of the court. The appellant is not entitled to recover them as of right, upon a reversal of the judgment below \\u2014 but may be adjudged even to pay them under circumstances.\\nThe plaintiff brought a suit by warrant against Gilliam and one Gays. In the County Court they joined in their pleas, and upon the trial, a verdict was found for the plaintiff against them both and a joint judgment rendered thereupon, from which Gilliam alone prayed and was allowed an appeal to the Superior Court. In that court the plaintiff\\u2019s counsel moved to dismiss the appeal, but the presiding Judge, (Martin,) overruled the motion and proceeded to try the cause, and the plaintiff obtained a verdict and judgment, from which the defendant appealed to this court. Several points arising on the trial in the court below were presented, by the case, butthe question on which the cause was here decided,renders any statement of them unnecessary,\\nNo counsel appeared for either party.\", \"word_count\": \"1189\", \"char_count\": \"6629\", \"text\": \"D anieIi, Judge.\\nThere are several questions or points of law submitted for our determination ; but I do not deem it necessary to decide but one of the\\u00ae, \\u2014 Can one de-, fondant appeal from a judgment which has been jointly rendered against the two ? I am of the opinion he cannot. The case of Sharp v. Jones and Winbourne, (3 Mnrph. 306,) is not a ease in point for the defendant. \\u2014 In that case, the defendants severed in their pleas, and there were several judgments; one in favor of Jones the executor, that he go without day; the other against WinborneEov the debt ascertained by the verdict. It was determined, that Winborne might appeal, because the judgment against him was single and not joint against him and Jones. .It is a well settled rule that when a judgment is jointly rendered against two, they must both join in a writ of error, otherwise the court will quash it. (2 Term 736. 3 Bur. 1789. 1 Wilson 88. Archb. P. K. B. 232.) If after error brought by one of several plaintiffs or defendants, in the names of all, the others refused to come in and join with him in the assignment of errors, they who refuse must be summoned and severed, aftei which lie may proceed in the writ of error alone, (Cro. Eliz. 891, Cro. Jac. 94. 1 Archb. B. K. B. 232,) and the court will give him time to assign errors, until the others can bo summoned and severed; (a Stra. 783,) nor can he that is summoned and severed release the errors. (Archb. 256.) But if in trespass against three there be judgment against two of them by default, and the third justifies, and it is found for him, the two against whom judgment was given, can alone join in a writ of error, for the other cannot say that the judgment was to his prejudice (1 Archb. 233 ;) and the same if two had been found guilty by verdict, and the other acquitted. (Cowp. 425.) We sec that one defendant or plaintiff may bring a writ of error in the name of the whole, but lie cannot assign error without an authority from the whole, or by obtaining an order of summons and severance. The judgment in the mean time stands good aud remains good, until a judgment of reversal on the hearing of the cause, on the writ of error. But in the case of an appeal under our acts of assembly, passed in 1777, c. 2 the granting of the appeal after bond given, vacates the judgment, .and a trial de novo upon the law and the facts, takes- place in the Superior Court. Therefore, if one defendant or plaintififis permitted to appeal without the consent of the others, it would vacate the judgment which might be most prejudicial to the others. The act of 1777 declares that \\\"when any person or persons, either plaintiff or defendant,\\\" are dissatisfied with any judgment, sentence or decree of a County Court, they may appeal to the Superior Court. The construction which I put on these words in the act is, that when there is but one \\\"person,\\\" cither plaintiff or defendant, and he is dissatisfied with the judgment, he shall have the right of appeal: and where there are several persons, who have joined or been joined as plaintiffs or defendants, and they are dissatisfied with the judgment, they may appeal.\\u2014 But I do not collect from the- wording of the act, that the Legislature intended that any one of those several persons composing the plaintiff or defendant in a cause,, might appeal at his solitary discretion. Generally when an appeal is taken, it is presumed to bo an appeal as to all the parties. In- this case, it is expressly stated that Gilliam alone appealed and that Hays did not. We think the judgment of the Superior Court is erroneous, that it should be reversed, and the appeal which was taken from the County Court should be dismissed with costs \\u2014 and' it is directed that a procedendo issue from the Superior Court to the Court of Pleas and Quarter sessions of Granville county, to proceed on the judgment in that court.\\nPer Curiam. \\u2014 This cause came on to be argued upon the transcript of the record from the Superior Court of law of Granville county, upon consideration whereof, this court is of opinion that there is error in the record and proceedings of' the said Superior Court in this, to wit: that the said Superior Court ought not to have taken cognizance of the appeal brought up to that court from the Court of Pleas & Quarter Sessions of the said county, the said appeal having been improvident-]y allowed-: Therefore, it is considered and adjudged by the court here, that the judgment of the said Superior Court be and the same is hereby reversed, j and tliis court proceeding to decide what judgment shall be entered in the said Superior Court, doth order, that the said court dismiss the said appeal with costs, and award a proceiiendo to the said Court of Pleas & Quarter Sessions, and that this judgment, and the opinion of this court as delivered by the Hon. Joseph John Danube, one of the judges thereof, be certified to the said Superior Court accordingly. And it is considered by the court here, that the plaintiff recover of the defendant \\u00e1nd Ira C. Jlrnold and Wyatt Cannady, the costs in this court incurred, to be taxed by the clerk.\"}" \ No newline at end of file diff --git a/nc/11359822.json b/nc/11359822.json new file mode 100644 index 0000000000000000000000000000000000000000..9ec5ffa6f9c29a9ddc7b9beba03a58f733bdcb5f --- /dev/null +++ b/nc/11359822.json @@ -0,0 +1 @@ +"{\"id\": \"11359822\", \"name\": \"STATE OF NORTH CAROLINA v. TONY DOUGLAS MILLER\", \"name_abbreviation\": \"State v. Miller\", \"decision_date\": \"2001-10-16\", \"docket_number\": \"No. COA00-1003\", \"first_page\": \"494\", \"last_page\": \"505\", \"citations\": \"146 N.C. App. 494\", \"volume\": \"146\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:07:04.391259+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges WYNN and HUNTER concur.\", \"parties\": \"STATE OF NORTH CAROLINA v. TONY DOUGLAS MILLER\", \"head_matter\": \"STATE OF NORTH CAROLINA v. TONY DOUGLAS MILLER\\nNo. COA00-1003\\n(Filed 16 October 2001)\\n1. Constitutional Law\\u2014 right to be present at all stages\\u2014 exclusion from courtroom during jury selection\\nThe trial court did not violate defendant\\u2019s constitutional right to be present at all stages of his trial in a second-degree kidnapping, common law robbery, and felonious escape from jail case by excluding defendant from the courtroom during jury selection, because: (1) defendant voluntarily waived his right to be present during jury selection by his own disruptive behavior, including refusing to sit down and refusing to participate when he was given the opportunity to be present during opening statements; (2) although the trial court failed to comply with N.C.G.S. \\u00a7 15A-1032(b)(2) requiring it to instruct the jurors that defendant\\u2019s removal is not to be considered in weighing evidence or determining the issue of guilt, defendant has not shown any reasonable probability that a different result would have been reached had the instruction been given; (3) defendant was afforded the opportunity to talk with his attorney and keep informed of what took place during his absence; (4) defendant was present during the admission of all the evidence and confronted all of the witnesses; and (5) neither defendant nor his attorney ever objected to the trial court\\u2019s removing defendant prior to jury selection and before the presentation of opening statements, and defendant failed to argue plain error. N.C. Const, art. I, \\u00a7 23; N.C.G.S. \\u00a7 15A-1032(a).\\n2. Appeal and Error\\u2014 preservation of issues \\u2014 failure to object \\u2014 failure to assert plain error\\nThe trial court did not err in a second-degree kidnapping, common law robbery, and felonious escape from jail case by failing to inform the jury that defendant\\u2019s absence from the courtroom was not to be considered in weighing the evidence or deciding his guilt, because: (1) defendant never objected to the omission of any such instructions; and (2) defendant failed to preserve the issue for plain error review as required by N.C. R. App. P. 10(c)(4).\\n3. Escape\\u2014 felonious escape from jail \\u2014 motion to dismiss\\u2014 sufficiency of evidence\\nThe trial court erred by denying defendant\\u2019s motion to dismiss the charge of felonious escape from jail, because: (1) the State failed to present any evidence that defendant was serving a sentence upon conviction of a felony on the date of defendant\\u2019s escape; and (2) the record does not contain any clear statement of a stipulation by defendant that he was serving a sentence for a felony at the time of the escape, but merely that he was serving an active sentence which supports a finding of the lesser included offense of misdemeanor escape under N.C.G.S. \\u00a7 14845(a).\\n4. Kidnapping\\u2014 second-degree \\u2014 motion to dismiss \\u2014 sufficiency of evidence\\nThe trial court erred by denying defendant\\u2019s motion to dismiss the charge of second-degree kidnapping under N.C.G.S. \\u00a7 14-39 based on defendant\\u2019s unlawfully confining and restraining a jailer for the purpose of facilitation of the commission of felony escape from jail, because the State failed to present substantial evidence that defendant was serving a sentence for a felony, which means defendant could not be guilty of committing felonious escape.\\nAppeal by defendant from judgment entered 1 March 2000 by Judge Russell G. Walker, Jr. in Montgomery County Superior Court. Heard in the Court of Appeals 15 August 2001.\\nAttorney General Roy Cooper, by Assistant Attorney General Sandra Wallace-Smith, for the State.\\nRussell J. Hollers III, for defendant-appellant.\", \"word_count\": \"4340\", \"char_count\": \"25811\", \"text\": \"TYSON, Judge.\\nTony Douglas Miller (\\\"defendant\\\") appeals the entry of judgment upon a jury verdict finding him guilty of two counts of common law robbery, one count of second-degree kidnapping, and one count of felonious escape from jail. We hold there was no error as to the entry of judgment on two counts of common law robbery. We vacate as to the entry of judgment on felonious escape and second-degree kidnapping, and remand for sentencing on misdemeanor escape and false imprisonment.\\nI. Facts\\nEvidence presented at trial tended to establish that on 15 September 1998, defendant was an inmate of the Montgomery County Jail. Jailers Carolyn Britt (\\\"Britt\\\") and Donna Williamson (\\\"Williamson\\\") were making their rounds for purposes of \\\"locking down\\\" the jail at approximately 11:00 p.m. Williamson went to cell number three to collect some used bottles. She unlocked the cell and reached in to collect the bottles. Williamson testified that as she did so, an inmate of cell number three grabbed her by the arm and restrained her.\\nBritt testified that she heard Williamson scream, and saw defendant walk out of cell number three and come towards her. Britt also testified that she attempted to close the main door, but that defendant \\\"stepped between [her] and the double door.\\\" She further testified defendant \\\"was right on me, and so he took my left wrist and put it up behind my back. He . . . told me if I would do as he said he would not hurt me.\\\" Defendant then instructed Britt to open some of the cell gates, which she did. Defendant asked Britt for the keys to the \\\"booking room\\\". She responded that she did not have those keys and did not know where the keys were. Defendant then took Britt to the booking room and again asked for the keys. Britt again responded that she did not have the keys.\\nBritt testified that defendant then \\\"took [her] all the way back inside the west walk area\\\" where Williamson was sitting on the floor. Defendant asked Williamson for the keys to the booking room. Williamson responded that the other inmates had taken the keys. Defendant took Britt back in the direction of the \\\"visiting room\\\" and instructed her not to move. Defendant left Britt momentarily and returned with some keys. Britt testified that defendant took her back to the booking room and told her to unlock the door with the keys. Britt told defendant that those were not the keys to the booking room. Defendant transported Britt back to the visiting room where he took her police radio. When defendant left again, Britt locked herself in the Chief Jailer's office and called for help. When help arrived at approximately 11:45 p.m., defendant and three other inmates were gone.\\nDefendant was tried at the 28 February 2000 criminal session of the Montgomery County Superior Court on indictments of kidnapping, common law robbery, felonious escape, and larceny. Defendant moved to dismiss all charges at the close of the State's evidence and again at the close of all evidence. The trial court granted defendant's motion on the charge of larceny, at the close of all evidence. The jury returned guilty verdicts on one count of second-degree kidnapping, two counts of common law robbery, and one count of felonious escape from jail. The trial court sentenced defendant to an active term of imprisonment of a minimum of 77 months and a maximum of 103 months. Defendant appeals.\\nII. Issues\\nThe issues on appeal are: (1) whether the trial court violated defendant's constitutional right to be present at all stages of his trial; (2) whether the trial court erred in denying defendant's motions to dismiss the charges of felonious escape and second-degree kidnap ping; and; (3) whether the trial court's jury instruction on felonious escape amounted to plain error.\\nA. Defendant's absence from iurv selection\\n1. Failure to object to absence and waiver\\nDefendant argues that he is entitled to a new trial based on the trial court's violation of his constitutional right to be present for all stages of the trial. Specifically, defendant contends that the trial court erred in excluding him from the courtroom during jury selection. Defendant was present in the courtroom when the case was called to trial and while the trial judge explained the process of jury selection. With the jury venire present, defendant stood up and engaged the trial judge in the following exchange:\\nMr. Miller: Honorable Judge?\\nThe Court: Have a seat please, Mr. Miller.\\nMr. Miller: I was told you told me not to come in here with my colors on, sir.\\nThe Court: I let you come in here with the hat. Sit down.\\nMr. Miller: But sir\\u2014\\nThe Court: Sit down.\\nMr. Miller: I have a problem with that.\\nThe Court: Sheriff, take him out of here please . He's waived his right to be present.\\nFollowing jury selection, and outside the presence of the jurors, the trial court made the following statement for the record:\\n[P]lease let the record reflect that before we began court this afternoon that [defense counsel] requested of the Court on behalf of [defendant's] mother and grandmother that they be allowed to speak with him in private in an effort to see if they could have some effect on his willingness to sit in the courtroom and be quiet, and that we did afford them that opportunity . I am going to now bring him back in the absence of the jury and see if he is willing to sit and participate in this trial in a civilized and respectful fashion.\\nWith the jury absent, defendant returned to the courtroom, and the trial court stated that defendant would have \\\"the chance to say what ever it is [he] wants to say with the jury out of the room.\\\" Defendant then requested that his attorney be dismissed. After an exchange regarding defendant's legal representation, the trial court asked defendant the following:\\nThe Court: . . . Do you wish to sit here and participate in your trial in defense?\\nMr. Miller: Participate?\\nThe Court: Sit there and be quiet?\\nMr. Miller: I will not disrespect my family.\\nThe Court: So you're choosing not to be here for your trial, is that correct?\\nMr. Miller: I will not disrespect my mother and grandmother for injustice.\\nThe Court: Let the record reflect that Mr. Miller chooses not to be present for his trial, and we will proceed in his absence.\\nDefendant was escorted from the courtroom and the jury was impaneled. The trial court made the following statement to the jury:\\nNow, ladies and gentlemen, first of all let me explain to you that the circumstances of this case are obviously a little different than you might have anticipated anywhere outside of a television portrayal of a trial. While you were out Mr. Miller came back in the courtroom, and we had a discussion as to whether he wished to be in the courtroom for the rest of his trial, and if so, whether he would commit to me that he would sit and participate in his defense in a respectful and quiet manner. He has chosen not to be present for the rest of his trial, and we're going to go ahead and let the State present their evidence to you and then let the defense present evidence, if they choose to do so.\\nThe trial proceeded with opening statements. Prior to the examination of witnesses, defendant expressed that he wished to return to the courtroom and would sit quietly, which was reported to the trial court in open court. The trial court then allowed defendant to re-join the trial. Defendant remained in the courtroom throughout the balance of the trial.\\nThe Confrontation Clause in Article I, Section 23 of the North Carolina Constitution \\\" 'guarantees an accused the right to be present in person at every stage of his trial.' \\\" State v. Daniels, 337 N.C. 243, 256, 446 S.E.2d 298, 307 (1994), cert. denied, Daniels v. North Carolina, 513 U.S. 1135, 130 L. Ed. 2d 895 (1995) (quoting State v. Payne, 320 N.C. 138, 139, 357 S.E.2d 612, 612 (1987)). \\\"However, in felonies less than capital, it is well established that a defendant may personally waive his right to be present.\\\" State v. Stockton, 13 N.C. App. 287, 291, 185 S.E.2d 459, 462-63 (1971) (citing State v. Ferebee, 266 N.C. 606, 146 S.E.2d 666 (1966)); see also Parker v. United States, 184 F.2d 488, 490 (4th Cir. 1950) (citing Diaz v. United States, 223 U.S. 442, 56 L. Ed. 500 (1912)). Such a right is \\\"a purely personal right\\\" that can be waived \\\"expressly or by [the] failure to assert it.\\\" State v. Braswell, 312 N.C. 553, 559, 324 S.E.2d 241, 246 (1985).\\n\\\"A trial judge, after warning a defendant whose conduct is disrupting his trial, may order the defendant removed from the trial if he continues conduct which is so disruptive that the trial cannot proceed in an orderly manner.\\\" N.C. Gen. Stat. Sec. 15A-1032(a) (1999). Defendant voluntarily waived his right to be present during jury selection by his own disruptive behavior. Defendant continued to disrupt the trial by refusing to sit down. Defendant was given the opportunity to be present during opening statements and again refused to participate. See State v. Callahan, 93 N.C. App. 579, 378 S.E.2d 812 (1989) (no error when defendant was removed after becoming disruptive upon denial of his motion and again when the jury venire returned for jury selection); State v. Smith, 139 N.C. App. 209, 533 S.E.2d 518 (2000) (no error when defendant was removed after making two outbursts during the presentation of evidence regarding the charge of habitual felon); State v. Thomas, 134 N.C. App. 560, 518 S.E.2d 222 (1999) (no error when defendant was removed from the courtroom after disrupting the trial court while attempting to rule and enter an observation on the record).\\nThe State acknowledges that the trial court failed to comply with the requirements of N.C. Gen. Stat. Sec. 15A-1032(b)(2) which provides: \\\"if the judge orders a defendant removed from the courtroom he must... (2) [i]nstruct the jurors that the removal is not to be considered in weighing evidence or determining the issue of guilt.\\\" This Court has held that such an omission is error. Smith, 139 N.C. App. at 217, 533 S.E.2d at 522. This Court went on to say that not every error warrants a new trial. Id. (citing State v. Ginyard, 334 N.C. 155, 431 S.E.2d 11 (1993)). \\\"An error is considered harmful when there is a reasonable probability that without the error a different result would have occurred. Id. (citing N.C. Gen. Stat. Sec. 15A-1443(a)).\\nDefendant has not shown any reasonable probability that a different result would have been reached had the instruction been given. Defendant was afforded the opportunity to talk with his attorney and keep informed of what took place during his absence. Defendant was present during the admission of all the evidence and confronted all of the witnesses.\\nDefendant concedes that neither defendant nor his attorney ever objected to the trial court's removing defendant prior to jury selection or following jury selection and before the presentation of opening statements. When defendant was excused prior to jury selection, his attorney continued on with the selection without making any objection to defendant's absence or the trial court's finding that defendant waived his right to be present. The failure to object at trial to the alleged denial of such a right constitutes waiver of the right to argue the denial on appeal. See State v. Watson, 338 N.C. 168, 191, 449 S.E.2d 694, 708 (1994), cert. denied, Watson v. North Carolina, 514 U.S. 1071, 131 L. Ed. 2d 569 (1995) (\\\"In the instant case defendant, having failed to object at trial [based on his constitutional right to be present at all stages of the trial], waived his right and cannot assign as error the trial court's denial of the right.\\\"); State v. Almond, 112 N.C. App. 137, 149, 435 S.E.2d 91, 98 (1993) (defendant abandoned argument that his right to be present at all stages of trial was violated where record reveals that defendant raised objection for the first time on appeal).\\nWhen a party fails to timely object at trial, he has the burden of establishing his right to appellate review by showing that the exception was preserved by rule or law or that the error alleged constitutes plain error. State v. Gardner, 315 N.C. 444, 447, 340 S.E.2d 701, 705 (1986); State v. Reaves, 142 N.C. App. 629, 630, 544 S.E.2d 253, 255 (2001). A defendant must \\\"specifically and distinctly\\\" contend on appeal that the omission amounted to plain error. N.C. R. App. P. 10(c)(4).\\nDefendant here has failed to argue that the trial court's finding that defendant waived his right to be present during jury selection amounted to plain error, or is otherwise preserved for our review. In short, defendant \\\"did not object at trial or allege plain error,\\\" State v. Scott, 343 N.C. 313, 332, 471 S.E.2d 605, 616 (1996), and thus \\\"has failed to properly preserve this issue for appeal.\\\" Id.; see also, e.g., State v. Call, 353 N.C. 400, 545 S.E.2d 190 (2001) (assignment of error overruled where defendant \\\"failed to assert plain error on appeal.\\\"); State v. Gary, 348 N.C. 510, 518, 501 S.E.2d 57, 63 (1998) (defendant waives plain error review where defendant does not assert plain error); State v. McGraw, 137 N.C. App. 726, 728, 529 S.E.2d 493, 496, (\\\"In failing to assert plain error, defendant has waived review by this Court.\\\"), disc. review denied, 352 N.C. 360, 544 S.E.2d 554 (2000).\\nThe right to be present at all critical stages of a trial is subject to a harmless error analysis. Braswell, 312 N.C. at 560, 324 S.E.2d at 247 (citation omitted); State v. Buckner, 342 N.C. 198, 227-28, 464 S.E.2d 414, 431 (1995), cert. denied, Buckner v. North Carolina, 519 U.S. 828, 136 L. Ed. 2d 47 (1996)). \\\" '[T]he burden is on the defendant to show the usefulness of his presence in order to prove a violation of his right to presence.' \\\" State v. Neal, 346 N.C. 608, 616, 487 S.E.2d 734, 739 (1997), cert. denied, Neal v. North Carolina, 522 U.S. 1125, 140 L. Ed. 2d 131 (1998) (quoting State v. Buchanan, 330 N.C. 202, 224, 410 S.E.2d 832, 845 (1991)). Defendant here has failed to show \\\"the usefulness of his presence\\\" during jury selection; especially in light of his subsequent statements evincing an intent not to sit quietly in the courtroom and allow the trial to proceed, and being present during the testimony of witnesses, presentation of all the evidence, return of the verdict, and entry of judgment.\\n2. Failure to object to iurv instructions\\nDefendant further argues that the trial court erred in failing to inform the jury that defendant's absence from the courtroom \\\"was not to be considered in weighing the evidence or deciding his guilt\\\" and that the trial court did not include any such instruction in the jury charge. However, defendant never objected to the omission of any such instruction.\\n\\\"According to our rules of appellate procedure, a defendant waives his right to assign error to the omission of a jury instruction where he does not object to such omission before the jury retires to deliberate.\\\" State v. Farmer, 138 N.C. App. 127, 132, 530 S.E.2d 584, 588, disc. review denied, 352 N.C. 358, 544 S.E.2d 550 (2000) (citing N.C. R. App. P. 10(b)(2)) (despite request for particular instruction, argument not preserved where defendant did not object at trial to omission of instruction). Again, defendant failed to preserve the issue for plain error review by \\\"specifically and distinctly\\\" contending that the omission amounted to plain error as required by N.C. R. App. P. 10(c)(4). Defendant has abandoned this argument. See State v. Turner, 11 N.C. App. 670, 673-74, 182 S.E.2d 244, 246 (1971) (where defense counsel failed to request that trial court instruct jury on defendant's waiver of right to be present and that his absence should not be considered with regard to guilt or innocence, trial court's failure to so instruct not error). These assignments of error are overruled.\\nB. Motions to dismiss\\n1. Felonious escape\\nDefendant first argues that the trial court should have granted his motion to dismiss the charge of felonious escape. Defendant contends that the State failed to present any evidence that defendant was serving a sentence upon conviction of a felony on 15 September 1995, the date of defendant's escape. We agree.\\n\\\"The elements of felonious escape thus are (1) lawful custody, (2) while serving a sentence imposed upon a plea of guilty, a plea of nolo contendere, or a conviction for a felony, and (3) escape from such custody.\\\" State v. Malone, 73 N.C. App. 323, 324, 326 S.E.2d 302, 302-03 (1985) (citation omitted). \\\"To prove the second of the foregoing elements, the State must offer evidence of the felony conviction or plea for which defendant was in lawful custody when he escaped.\\\" Id. at 324, 326 S.E.2d at 303. Evidence such as a properly certified copy of the commitment is competent to show the lawfulness of the custody and the type of offense for which the defendant was committed. State v. Ledford, 9 N.C. App. 245, 247, 175 S.E.2d 605, 606 (1970).\\n\\\"Before a defendant can be convicted of this offense, the state must prove beyond a reasonable doubt that at the time of his escape defendant was serving a sentence of incarceration imposed for the conviction of a felony.\\\" State v. Hammond, 307 N.C. 662, 665, 300 S.E.2d 361, 363 (1983) (citation omitted); State v. Parrish, 73 N.C. App. 662, 667, 327 S.E.2d 613, 617 (1985) (citing Hammond, 307 N.C. 662, 300 S.E.2d 361) (\\\"When a defendant is charged with felonious escape from the state prison system under G.S. \\u00a7 148-45, the State has the burden of proving that defendant was . . . serving a sentence imposed upon conviction of a felony.\\\").\\nIn the present case, the State failed to present any evidence to the jury that defendant was serving a sentence for the commission of a felony on the date of his escape. The State argues that this fact was stipulated to by defendant. However, the record does not contain any clear statement of a stipulation by defendant that he was serving a sentence for a felony at the time of the escape. Defense counsel clearly stated that \\\"defendant will stipulate that on the date in ques tion he was serving an active sentence . . . [i]n the Department of Corrections.\\\" Defendant never stipulated that he was serving an active sentence upon conviction of a felony, and the State neither introduced testimony nor exhibits, such as a certified copy of defendant's commitment, to prove that defendant was serving a sentence upon conviction of a felony.\\nViewed in the light most favorable to the State, the evidence fails to establish the necessary element of felonious escape that defendant was serving a sentence for the commission of a felony. The evidence does prove that defendant was serving an active sentence, which supports a finding that defendant is guilty of the lesser included offense of misdemeanor escape under N.C. Gen. Stat. 148-45(a).\\n2. Second-degree kidnanning\\nDefendant further assigns error to the trial court's denial of his motions to dismiss the charge of second-degree kidnapping, arguing that the evidence was insufficient to support each element of the crime. In order to establish the commission of second-degree kidnapping, \\\"the State bears the burden of proving that the defendant 'unlawfully confined, restrained, or removed the [victim] for one of the eight purposes set out in the statute.' \\\" State v. Guice, 141 N.C. App. 177, 181, 541 S.E.2d 474, 477-78 (2000), stay allowed, 353 N.C. 388, 546 S.E.2d 610 (2001) (quoting State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986)). \\\" 'The indictment in a kidnaping case must allege the purpose or purposes upon which the State intends to rely, and the State is restricted at trial to proving the purposes alleged in the indictment.' \\\" Id. at 181, 451 S.E.2d at 478 (quoting Moore, 315 N.C. at 743, 340 S.E.2d at 404).\\nIn the present case, defendant's indictment for second-degree kidnapping alleged that defendant unlawfully confined and restrained Britt \\\"for the purpose of facilitation of the commission of a felony . . . felony escape from jail.\\\" See N.C. Gen. Stat. \\u00a7 14-39 (unlawful confinement or restraint amounts to second-degree kidnapping where done for the purpose of \\\"[facilitating the commission of any felony or facilitating flight of any person following the commission of a felony.\\\").\\nThe State was required to present substantial evidence that defendant kidnapped Britt for the purpose of committing the crime of felonious escape. We have already held that the State failed to present substantial evidence that defendant was serving a sentence for a felony, and thus could not be guilty of committing felonious escape. However, the jury's verdict of guilty of second-degree kidnapping contains all the elements of the lesser included offense of false imprisonment: (1) intentionally and unlawfully, (2) restrains or detains a person, (3) without the person's consent. State v. Surrett, 109 N.C. App. 344, 350, 427 S.E.2d 124, 127 (1993).\\nC. Jury instruction on felonious escape\\nWe need not address defendant's remaining argument that the trial court erred in instructing the jury on felonious escape in light of our holding that the State failed to present evidence to the jury that defendant was serving a sentence for the commission of a felony on the date of his escape.\\nWe, however, note that the trial court's instruction, which required a guilty verdict upon the findings that defendant (a) was lawfully confined in the Montgomery County Jail, and (b) escaped, erroneously failed to distinguish between felonious escape and misdemeanor escape and to clearly require the finding that defendant was serving a sentence for the commission of a felony. See Ledford at 247-48, 175 S.E.2d at 607.\\nWe hold that the evidence was insufficient to support the verdicts of felonious escape (98CRS004137) and second-degree kidnapping (98CRS004138) and vacate defendant's convictions as to these charges. We hold there was no error in the remainder of the verdict and judgment as to the two counts of common law robbery (98CRS004135 and 98CRS004136). We remand to the trial court for imposition of judgment on the lesser included offenses of misdemeanor escape and false imprisonment and for resentencing.\\nNo error in part, vacated and remanded in part.\\nJudges WYNN and HUNTER concur.\"}" \ No newline at end of file diff --git a/nc/11436644.json b/nc/11436644.json new file mode 100644 index 0000000000000000000000000000000000000000..c69b7f522a22ce47dff5c916f3d723e7a78b2b45 --- /dev/null +++ b/nc/11436644.json @@ -0,0 +1 @@ +"{\"id\": \"11436644\", \"name\": \"IN THE MATTER OF: APPEAL OF WINSTON-SALEM JOINT VENTURE FROM THE DECISION OF THE FORSYTH COUNTY BOARD OF EQUALIZATION AND REVIEW CONCERNING REAL PROPERTY TAXATION FOR TAX YEAR 1997\", \"name_abbreviation\": \"In re Appeal of Winston-Salem Joint Venture\", \"decision_date\": \"2001-07-17\", \"docket_number\": \"No. COA00-912\", \"first_page\": \"706\", \"last_page\": \"716\", \"citations\": \"144 N.C. App. 706\", \"volume\": \"144\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:32:04.272340+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges MARTIN and HUDSON concur.\", \"parties\": \"IN THE MATTER OF: APPEAL OF WINSTON-SALEM JOINT VENTURE FROM THE DECISION OF THE FORSYTH COUNTY BOARD OF EQUALIZATION AND REVIEW CONCERNING REAL PROPERTY TAXATION FOR TAX YEAR 1997\", \"head_matter\": \"IN THE MATTER OF: APPEAL OF WINSTON-SALEM JOINT VENTURE FROM THE DECISION OF THE FORSYTH COUNTY BOARD OF EQUALIZATION AND REVIEW CONCERNING REAL PROPERTY TAXATION FOR TAX YEAR 1997\\nNo. COA00-912\\n(Filed 17 July 2001)\\n1. Taxation\\u2014 ad valorem \\u2014 shopping mall \\u2014 valuation method \\u2014 income approach\\nThe Property Tax Commission appropriately used the income approach rather than the cost approach in valuing Hanes Mall for ad valorem taxes. Although the taxpayer cites In re Appeal of Belk-Broome Co., 119 N.C. App. 470 and argues that the outcome of the assessment should be limited by the cost method, that case states that the cost approach may not effectively reflect market conditions and leaves room for the fair market value to differ from the cost approach value. To hold otherwise would place improper restrictions on determining the fair market value.\\n2. Taxation\\u2014 ad valorem \\u2014 shopping mall \\u2014 valuation method \\u2014 equal protection\\nThere was no equal protection violation in an ad valorem tax assessor\\u2019s use of the income approach when appraising Hanes Mall even though all other commercial properties were appraised under the cost approach because there was evidence that Hanes Mall was the only super regional mall in the county and that it was unlike any other property in the county. The taxpayer did not show that it was discriminated against by being excluded from the same class as strip malls and the like because it did not show that it was entitled to be considered in that class.\\nAppeal by taxpayer from a final decision entered 20 March 2000 by the North Carolina Property Tax Commission. Heard in the Court of Appeals 30 May 2001.\\nMaupin Taylor & Ellis, P.A., by Charles B. Neely, Jr. and Nancy S. Rendleman; Fisk, Kart & Katz, by James P. Regan, for taxpayer-appellant.\\nBell, Davis & Pitt, P.A., by John A. Cocklereece, Jr., Stephen M. Russell and Kevin G. Williams, for appellee-Forsyth County.\", \"word_count\": \"3656\", \"char_count\": \"22889\", \"text\": \"HUNTER, Judge.\\nTaxpayer-appellant Winston-Salem Joint Venture (herein \\\"Taxpayer\\\") appeals the final decision of the North Carolina Property Tax Commission (\\\"the Commission\\\") modifying the Forsyth County Board of Equalization and Review's (\\\"the Board\\\") decision as to the value of Taxpayer's commercial property (referred to herein as \\\"Hanes Mall\\\"), and finding its appraised value to be $140,000,000. Taxpayer argues the Commission erred: (1) by failing to apply or properly consider the cost approach method in appraising Hanes Mall, and; (2) by adopting the County's expert appraiser's assessment of the property's value. Upon careful review of the record before us, we affirm the Commission's decision.\\nFinding no discrepancy in the parties' recitation of the facts, we take our account of the facts directly from Taxpayer's brief to this Court. Effective 1 January 1997, the Forsyth County Tax Assessor (\\\"the Assessor\\\") \\\"appraised the real property associated with Hanes Mall in Winston-Salem at a total value of $162,725,000.\\\" Taxpayer appealed the assessment to the Board in a timely manner. Subsequently, the Board heard Taxpayer's appeal and \\\"on December 4, 1997 . . . affirmed the decision of the Assessor.\\\" Then on 2 January 1998, Taxpayer appealed the Board's decision to the Commission. After a hearing which lasted several days, the Commission found, in pertinent part:\\n12. . [The] County [Assessor] used the direct capitalization method to arrive at a total value of $162,725,000 for the subject property. This method is used to convert an estimate of one year's income expectancy, or an annual average of several years' income expectancy into an indication of value in one direct step. . In general, the direct capitalization approach requires the use of comparable sales and the income derived therefrom to arrive at an appropriate capitalization rate. When using this approach to value the subject property, [the Assessor] did not apply or rely upon its 1997 schedule of values, rules and standards to arrive at the capitalization rate of 7.75%. Instead, the [Assessor] used data developed for a prior appraisal assignment that did not correlate with the rate information used to develop the 1997 schedule of values, standards and rules. Hence, the [Assessor] arrived at a capitalization rate of 7.75% and when that rate was applied to the applicable schedule of values, rules and standards it resulted in an improper classification of the subject property as an A plus mall.\\n13. . . . In Mr. Nafe's opinion [Taxpayer's expert witness], the value of the subject property is composed of three components: (1) real estate, (2) Hanes Mali's internal profit centers, and (3) the intangible personal property associated with Hanes Mall's business. . . .\\n14. In Mr. Nafe's opinion, in order to determine fair market value, the appraiser must identify and segregate the non-realty elements of the subject property so that his appraisal of the subject property would be limited to the fee simple in the property's real estate value. . In applying the cost approach, Mr. Nafe . . . estimated the value of the subject property to be $84,000,000. Under the income approach, Mr. Nafe arrived at total value $80,000,000 for the subject property when applying both the direct capitalization analysis and the discounted cash flow analysis. Mr. Nafe's going-concern value of the subject property as of January 1, 1997 was $130,000,000, denoted as follows:\\nFee simply [sic] real estate only: $ 80,000,000\\nNon-realty value: $ 50,000,000\\nTotal Going Concern value: $130,000,000\\n16. . In summary, Mr. Nafe concluded that the value of the subject real property . . . was $80,000,000 . . He reached this valuation by applying the income approach, which is typically given greatest weight in the analysis of income-producing property.\\n20. Investors in regional malls do not use the cost approach to determine market value because of the assumptions and wide variety of estimates that are placed upon such items as entrepreneurial profit, subsidies, and influences by anchor department stores. . . .\\n21. To arrive at an opinion of value for the subject property, Mr. . . . Korpacz, the [Assessor]'s expert witness, utilized the direct capitalization and yield capitalization approaches as recognized under the income method of valuation. While Mr. Korpacz utilized the sales comparison approach to value, he rejected the cost approach based upon his experience that investors in regional malls give little value to this approach to at arrive [sic] market value.\\n22. Mr. Korpacz considered business enterprise value in his value analysis of the subject property, but he rejected this concept because, based upon his experience, regional mall investors do not recognize or reflect this concept when investing in this particular market....\\n23. Mr. Korpacz's fee simple opinion of value for the subject property . . . was $140,000,000. He reached this value when applying the income approach; analyzing market rents and determining that the appropriate capitalization rate was 8.55%. Mr. Korpacz's appraisal correlates with the County [Assessor's 1997 schedule of values, rules and standards in that his appraisal analysis yields a proper classification of the subject property as a B plus mall.\\n24. Of the three traditional appraisal methods considered by the Commission, the cost approach, the comparable sales approach, and the income approach, the income approach is the most reliable method in reaching market value for the subject property.\\n25. Even though the Commission considered the comparable sales and cost approaches to value, the Commission determined that those approaches would not yield fair market value of the subject property and should not be relied upon as the primary approaches to determine value.\\n(Emphasis added.) Thus, the Commission concluded as a matter of law:\\n2. In North Carolina, property must be valued for ad valorem tax assessment purposes at its \\\"true value in money,\\\" which is statutorily defined as \\\"market value[,]\\\" [pursuant to N.C. Gen. Stat. \\u00a7 105-283.]\\n3. Ad valorem assessments are presumed to be correct. In order for the Taxpayer to rebut the presumption of correctness, the Taxpayer must prove that the County [Assessor] employed an arbitrary or illegal method of valuation and that the assessment of the subject property substantially exceeded the true value in money of the subject property.\\n6. In reaching a total assessed value for the subject property . of $162,725,000, the County [Assessor] failed to properly apply its schedule of values, rules and standards, as required and directed by G.S. 105-317 of the North Carolina Machinery Act. The income capitalization rate developed by the County [Assessor] does not correlate with an appropriate classification of the subject property under the County [Assessor]'s schedule of values, rules and standards. . . .\\n10. The income approach is the most probative means to establish the fair market value of the subject property and even though it is the preferred method, a combination of the three methods may be used as long as the income approach is given the greatest weight. .\\n11. The value of the subject property, relying primary [sic] on the income approach . . . was $140,000,000.\\n(Emphasis added.) Taxpayer appeals the Commission's decision.\\nTaxpayer first assigns error to the Commission's \\\"failing to apply or properly consider the cost approach in appraising Hanes Mall.\\\" Although Taxpayer admits \\\"this Court [has] held that . . . exclusive reliance on the cost approach [i]s an error of law and that the income approach should be the primary method used,\\\" relying on In re Appeal of Belk-Broome Co., 119 N.C. App. 470, 473, 458 S.E.2d 921, 923-24 (1995), aff'd, 342 N.C. 890, 467 S.E.2d 242 (1996), Taxpayer argues \\\"this Court did not conclude that the cost approach should not be used.\\\" (Emphasis omitted and added.) As such, Taxpayer contends that \\\"a combination of cost and income methods could be used so long as the income approach is given greatest weight\\\" (emphasis added), and thus the cost approach should have been used in the present case because that method's \\\"primary use is to establish a ceiling on valuation . . . .\\\" Belk, 119 N.C. App. at 474, 458 S.E.2d at 924. We are unpersuaded.\\nN.C. Gen. Stat. \\u00a7 105-345.2(b) (1999) governs the standard of appellate review as to property valuations, stating that the appellate Court \\\"shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning and applicability of the terms of any Commission action.\\\" N.C. Gen. Stat. \\u00a7 105-345.2(b). Further, the statute gives this Court the authority to reverse, remand, modify, or declare void any decision which prejudices a plaintiff, where said decision is:\\n(1) In violation of constitutional provisions; or\\n(2) In excess of statutory authority or jurisdiction of the Commission; or\\n(3) Made upon unlawful proceedings; or\\n(4) Affected by other errors of law; or\\n(5) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted; or\\n(6) Arbitrary or capricious.\\nN.C. Gen. Stat. \\u00a7 105-345.2(b). Moreover, our state's case law has plainly set out that \\\"ad valorem tax assessments are presumed to be correct.\\\" In re Appeal of Amp, Inc., 287 N.C. 547, 562, 215 S.E.2d 752, 761 (1975) (emphasis added). However, in dealing with this very matter, this Court clearly held that\\nthe presumption is one of fact and is therefore rebuttable[; but t]o rebut the presumption, [Taxpayer-]Belk must produce \\\" 'competent, material and substantial' evidence that tends to show that: (1) Either the county tax supervisor used an arbitrary method of valuation; or (2) the county tax supervisor used an illegal method of valuation; AND (3) the assessment substantially exceeded the true value in money of the property.\\\" [Amp, Inc., 287 N.C.] at 563, 215 S.E.2d at 762. . . .\\nBelk, 119 N.C. App. at 473, 458 S.E.2d at 923 (emphasis in original) (citation omitted). Additionally, the Court went on to opine:\\nIt is generally accepted that the income approach is the most reliable method in reaching the market value of investment property[. . . and,] the cost approach's primary use is to establish a ceiling on valuation, rather than actual market value. . . . [However, t]he modern appraisal practice is to use cost approach as a secondary approach \\\"because cost may not effectively reflect market conditions.\\\" [Coastal Eagle Point] Oil Co. [v. West Deptfort Township], 13 N.J. Tax 242, 288 [(1993)] .\\nId. at 474, 458 S.E.2d at 924 (emphasis added).\\nWe recognize that the Court's holding of what a taxpayer is required to prove is absolute. However, we deem the Belk Court's statement, that \\\"the cost approach's primary use is to establish a ceiling on valuation,\\\" (upon which the present Taxpayer relies), to be at most dicta. Id. This is because, even in its own assessment of which approach is most proper, the Belk Court plainly settled and stated that the goal of any valuation is to reach fair market value for the subject property \\u2014 fair market value which accurately \\\"... 'reflects] market conditions.' \\\" Id. (quoting Oil Co., 13 N.J. Tax 242, 288). The Court further stated:\\nThe County [Assessor] is required to value all property for ad valorem tax purposes at its true value in money, which is its \\\"market value.\\\" North Carolina General Statutes \\u00a7 105-283 (1992). Market value is defined in the statute as\\n\\\"the price estimated in terms of money at which the property would change hands between a willing and financially able buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of all the uses to which the property is adapted and for which it is capable of being used.\\\"\\nId. An important factor in determining the property's market value is its highest and best use. The Belk property must be valued at its highest and best use, which the parties agree is its present use . Therefore, the County, and the Commission [Assessors], are required to use a valuation methodology that reflects what willing buyers in the market for anchor department stores will pay for the subject property. In doing so, the county must \\\"consider at least [the property's] . . . past income; probable future income; and any other factors that may affect its value.\\\" North Carolina General Statutes \\u00a7 105-317(a)(2) (1992).\\nId. at 473-74, 458 S.E.2d at 923-24 (emphasis added) (citations omitted).\\nWe note that in the Belk case, the cost approach for the subject property yielded a much higher value assessment than what was shown to be the property's \\\"fair market value\\\" \\u2014 that is, what a willing buyer would pay a willing seller under the terms outlined above. As such, the cost approach's \\\"ceiling on valuation\\\" was therefore an irrelevant factor, and the Court refused to accept the cost approach value as fair market value. However, that is not so in the case at bar.\\nIn applying Belk to the present case, we find Taxpayer's argument to be without merit. Taxpayer's business (though more than just an anchor store) is of the exact type as that of Belk. Taxpayer does not argue that the income approach used by the Assessor was incorrect or unlawful, only that the outcome of the Assessor's assessment should have been limited by the Assessor's use of the cost method. However, the very case law upon which Taxpayer relies clearly states that the cost approach \\\". . 'may not effectively reflect market conditions.' \\\" Id. at 474, 458 S.E.2d at 924 (quoting Oil Co., 13 N.J. Tax 242, 288). We recognize that it is Taxpayer's hope that this Court finds\\u2014 since in the present instance the cost approach results in a much lower assessment \\u2014 that the cost approach assessment should yield the maximum value of Hanes Mall.\\nHowever, we refuse to ignore the plain language used by the Belk Court. Instead, we hold that although the cost approach may often times result in the upper limit of fair market value, it does not necessarily need to be so. Therefore, we believe the precedent set forth in Belk leaves room for the fair market value to differ from the cost approach value. To hold otherwise would place improper restrictions on determining the fair market value of realty as required by statute, and render consideration of competent evidence reflecting fair market values above the cost approach assessment to be unacceptable. Further, we agree with the Commission that the cost approach \\\"would not yield fair market value of the [mall] and should not be relied upon as the primary approach[] to determine value.\\\" Therefore, we hold that the Commission's use of the income approach \\u2014 pursuant to Belk \\u2014 was the appropriate valuation method in the case at bar.\\nTaxpayer's second and final assignment of error is that \\\"[t]he Commission's adoption of Mr. Korpacz's appraisal as its assessment of Hanes Mall resulted in a denial of Taxpayer's constitutional and statutory rights to equal protection and uniform taxation.\\\" In its brief to this Court, Taxpayer goes to great lengths in discussing cases which purport that \\\"the use of one assessment methodology to assess the property of one group of taxpayers and another assessment methodology to assess the property of another group of taxpayers in the same class resulted in significant differences in assessed values of comparable properties and a denial of uniformity.\\\" (Emphasis added.) Thus, Taxpayer argues, because the Assessor treated Hanes Mall differently from \\\"any other property in Forsyth County,\\\" Taxpayer has been discriminated against. We disagree.\\nTaxpayer is correct when it states that \\\"[t]he U.S. Supreme Court has held that application of two distinct valuation methodologies to properties in the same class which results in systematic discrimination against one group of property owners is a clear violation of uniformity.\\\" Citing Allegheny Pitts, v. Webster County, 488 U.S. 336, 345, 102 L. Ed. 2d 688, 698 (1989). Additionally, per the parties' stipulations, the Assessor admits that:\\n16. In performing its 1997 revaluation, the assessments made by the Forsyth County Assessor's Office of hotels and motels, investment grade apartment complexes, the Hanes Mall and the five anchor stores adjacent to the Hanes Mall were based upon the income approach to value, although the County may have considered other approaches to value. The assessments of all other commercial and industrial properties in Forsyth County including, but not limited to, strip centers and other shopping centers, retail stores, restaurants, nursing homes, bowling alleys, office buildings, theaters, and industrial enterprises were based upon the cost approach to value, although the County may have considered other approaches to value.\\n(Emphasis added.) However, Taxpayer offers no evidence that the Assessor utilized the cost approach to value another \\\"super regional mall\\\" and yet used the income approach solely to value Hanes Mall. Contrarily, the Assessor presented evidence that Hanes Mall is the only super regional mall in Forsyth County and that it is \\\"unlike any other property in the county, which creates an inherent weakness for using the cost approach to determine a fair [market] value.\\\" Therefore, without a showing that Taxpayer's property was entitled to be considered in the same class as strip malls and the like, Taxpayer has failed to show it was discriminated against by being excluded from that class. In failing to fall within the same class, the assessment cannot violate the equal protection clauses of the United States and North Carolina Constitutions. See Tax Appeal of County of Maui v. EM Hawaii, Inc., 81 Hawaii 248, 256, 915 P.2d 1349, 1357 (1996).\\nAdditionally, we note Taxpayer failed to object or assign error to the Commission's findings that the Assessor's expert witness, Mr. Korpacz:\\n21. . rejected the cost approach based upon his experience that investors in regional malls give little value to this approach to at arrive [sic] market value.\\n24. Of the three traditional appraisal methods considered by the Commission, . . . the income approach is the most reliable method in reaching market value for the subject property.\\nAs such, Taxpayer has lost its right to argue those findings were not supported by substantial evidence of record.\\nThe law has long been that:\\nThe Commission has the authority and responsibility \\\"to determine the weight and sufficiency of the evidence and the credibility of the witnesses, to draw inferences from the facts, and to appraise conflicting and circumstantial evidence.\\\" [In re Appeal of Interstate Income Fund 1, 126 N.C. App. 162, 164, 484 S.E.2d 450, 451 (1997)] (quoting In re McElwee, 304 N.C. 68, 87, 283 S.E.2d 115, 126-27 (1981))_\\nIn re Appeal of Phillip Morris, 130 N.C. App. 529, 532, 503 S.E.2d 679, 681, review denied, 349 N.C. 359, 525 S.E.2d 456 (1998). Further, \\\"[t]he weight to be accorded relevant evidence is a matter for the factfinder, which is the Commission.\\\" In re Appeal of Westinghouse Electric Corp., 93 N.C. App. 710, 712, 379 S.E.2d 37, 38 (1989). Additionally:\\nOur Supreme Court has said valuations fixed by the Commission shall be final and conclusive where no error of law or abuse of discretion is alleged. Belk's Department Store, Inc. v. Guilford County, 222 N.C. 441, 23 S.E.2d 897 (1943)_ [T]he Commission \\\"has full authority, notwithstanding irregularities at the county level, to determine the valuation and enter it accordingly. Such valuation so fixed is final and conclusive unless error of law or abuse of discretion is shown.\\\" In re Appeal of Broadcasting Corp., 273 N.C. 571, 579, 160 S.E.2d 728, 733 (1968).\\nIn re Appeal of Boos, 95 N.C. App. 386, 388, 382 S.E.2d 769, 770 (1989). Moreover, \\\"[i]f the Commission's decision, considered in the light of the foregoing rules, is supported by substantial evidence, it cannot be overturned.\\\" Phillip Morris, 130 N.C. App. at 533, 503 S.E.2d at 682.\\nHaving failed to show that the decision of the Commission was either: in violation of constitutional provisions, in excess of statutory authority, made upon unlawful proceedings, affected by other errors of law, unsupported by competent evidence, or arbitrary or capri cious, we hold Taxpayer has failed to prove it was discriminated against. N.C. Gen. Stat. \\u00a7 105-345.2(b). Additionally, without a showing that \\\"the assessment substantially exceeded the true value in money of the property,\\\" Amp, 287 N.C. 547, 563, 215 S.E.2d 752, 762 (emphasis in original), Taxpayer has failed to rebut the presumption that its \\\"ad valorem tax assessments are . . . correct.\\\" Id. at 562, 215 S.E.2d at 761 (emphasis added). Therefore, because we find the findings of fact and conclusions of the Commission are based upon and supported by competent, material and substantial evidence in the record, the Commission's final decision is\\nAffirmed.\\nJudges MARTIN and HUDSON concur.\"}" \ No newline at end of file diff --git a/nc/11708343.json b/nc/11708343.json new file mode 100644 index 0000000000000000000000000000000000000000..2b17cf51a95d3abebe30fa2f368f0ea179e5a211 --- /dev/null +++ b/nc/11708343.json @@ -0,0 +1 @@ +"{\"id\": \"11708343\", \"name\": \"STATE OF NORTH CAROLINA v. TAURICE MARQUESE CRISP\", \"name_abbreviation\": \"State v. Taurice Marquese Crisp\", \"decision_date\": \"1997-04-15\", \"docket_number\": \"No. COA96-395\", \"first_page\": \"30\", \"last_page\": \"42\", \"citations\": \"126 N.C. App. 30\", \"volume\": \"126\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:08:10.640835+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges JOHN and McGEE concur.\", \"parties\": \"STATE OF NORTH CAROLINA v. TAURICE MARQUESE CRISP\", \"head_matter\": \"STATE OF NORTH CAROLINA v. TAURICE MARQUESE CRISP\\nNo. COA96-395\\n(Filed 15 April 1997)\\n1. Assault and Battery \\u00a7 16 (NCI4th)\\u2014 bill of indictment\\u2014 assault \\u2014 \\u201cserious injury\\u201d \\u2014 no need of exact language\\nIn a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, it was not necessary for the bill of indictment to track the exact language of N.C.G.S. \\u00a7 14-32(a) by using the term \\u201cserious injury\\u201d where the indictment alleged that the victim received a gunshot wound to the left arm which required medical treatment and hospitalization.\\nAm Jur 2d, Assault and Battery \\u00a7\\u00a7 90, 91.\\n2. Assault and Battery \\u00a7 116 (NCI4th)\\u2014 assault \\u2014 deadly weapon \\u2014 serious injury \\u2014lesser included offense\\nIn a prosecution for assault with a deadly weapon with the intent to kill inflicting serious injury, the trial court did not err by instructing the jury that the victim\\u2019s injury was serious and by refusing to instruct the jury on the lesser included offense of assault with a deadly weapon because reasonable minds could not differ as to the seriousness of the victim\\u2019s injuries where the evidence showed that defendant shot the victim; the bullet entered the victim\\u2019s leg; the victim\\u2019s leg went numb and then begin burning and throbbing; the victim needed assistance to leave the building; and the victim required treatment at a hospital.\\nAm Jur 2d, Trial \\u00a7\\u00a7 1427 et seq.\\nPropriety of lesser-included-offense charge to jury in federal assault prosecution. 103 ALR Fed. 880.\\n3. Criminal Law \\u00a7 1095 (NCI4th Rev.) \\u2014 Structured Sentencing Act \\u2014 aggravating factor \\u2014 permanent and debilitating injury\\nThe evidence supported the trial court\\u2019s finding as an aggravating factor for assault with a deadly weapon inflicting serious injury that the victim suffered a serious injury that was permanent and debilitating where the evidence at trial indicated that the victim had diminished strength in his arm after he was shot in the arm by defendant, the bullet disintegrated the bone, the arm bone was removed, and reconstructive surgery transferred bone from his hip to his arm.\\nAm Jur 2d, Criminal Law \\u00a7\\u00a7 525 et seq.\\nSufficiency of bodily injury to support charge of aggravated assault. 5 ALR5th 243.\\n4. Criminal Law \\u00a7 1095 (NCI4th Rev.)\\u2014 Structured Sentencing Act \\u2014 permanent and debilitating injury \\u2014 same evidence not used to prove element of offense\\nThe trial court did not use the same evidence to prove an element of each offense, assault with a deadly weapon with intent to kill inflicting serious injury, and the aggravating factor that each victim suffered a serious injury that was permanent and debilitating where the gunshot wounds suffered by the victims resulted in serious injuries at the time they were inflicted, wholly apart from the long-term or extended effects that arose from each victim\\u2019s injuries. N.C.G.S. \\u00a7 15A-1340.16(d)\\nAm Jur 2d, Criminal Law \\u00a7\\u00a7 525 et seq.\\nSufficiency of bodily injury to support charge of aggravated assault. 5 ALR5th 243.\\n5. Criminal Law \\u00a7 1095 (NCI4th Rev.)\\u2014 Structured Sentencing Act \\u2014 aggravating factor \\u2014 weapon hazardous to multiple lives \\u2014 semi-automatic gun\\nThere was sufficient evidence to support the trial court\\u2019s finding of the existence of the aggravating factor that defendant used a weapon which normally would be hazardous to the lives of more than one person where the evidence at trial supported the inference that defendant assaulted his victims with a semiautomatic pistol.\\nAm Jur 2d, Criminal Law \\u00a7\\u00a7 525 et seq.\\nSufficiency of bodily injury to support charge of aggravated assault. 5 ALR5th 243.\\n6. Criminal Law \\u00a7 1095 (NCI4th Rev.)\\u2014 Structured Sentencing Act \\u2014 aggravated assault \\u2014 aggravating factor \\u2014 weapon hazardous to multiple lives\\nIt was not error for the trial court to find the existence of the aggravating factor that defendant used an automatic weapon normally hazardous to the lives of more than one person after defendant had been convicted of assault with a deadly weapon with intent to kill inflicting serious injury where the employment of a weapon normally hazardous to others was not an essential element of the assault charge.\\nAm Jur 2d, Criminal Law \\u00a7\\u00a7 525 et seq.\\nSufficiency of bodily injury to support charge of aggravated assault. 5 ALR5th 243.\\n7. Criminal Law \\u00a7 1097 (NCI4th Rev.)\\u2014 Structured Sentencing Act \\u2014 mitigating factor \\u2014 condition reducing culpability \\u2014 failure of court to find\\nThe trial court did not err by failing to find as a mitigating sentencing factor for aggravated assaults that defendant was suffering from a mental condition that reduced his culpability where a psychologist testified that defendant had an IQ of 77, lower than average reading, spelling and math skills, and symptoms of increased suspicion and paranoia; the psychologist further stated that these were characteristics of a person with \\u201cborderline mental disorder\\u201d which is \\u201ca mental illness that describes someone who is immature and unpredictable\\u201d; and the trial court expressed doubts about the credibility and substance of this evidence. N.C.G.S. \\u00a7 15A-1340.16(e)(3).\\nAm Jur 2d, Criminal Law \\u00a7\\u00a7 525 et seq.\\nSufficiency of bodily injury to support charge of aggravated assault. 5 ALR5th 243.\\n8. Criminal Law \\u00a7 1097 (NCI4th Rev.)\\u2014 Structured Sentencing Act \\u2014 mitigating factor \\u2014 extenuating relationship\\u2014 insufficient evidence .\\nEvidence of a prior altercation between defendant and the victim of an aggravated assault did not compel the trial court to find the mitigating factor that the relationship between defendant and the victim was otherwise extenuating. N.C.G.S. \\u00a7 15A-1340.16(e)(8).\\nAm Jur 2d, Criminal Law \\u00a7\\u00a7 525 et seq.\\nSufficiency of bodily injury to support charge of aggravated assault. 5 ALR5th 243.\\n9. Criminal Law \\u00a7 1097 (NCI4th Rev.)\\u2014 Structured Sentencing Act \\u2014 mitigating factor \\u2014 acceptance of responsibility for crimes \\u2014 motion to suppress statement\\nDefendant was not entitled to a finding of the mitigating factor that he accepted responsibility for his criminal conduct where defendant repudiated his incriminating statement to the police by moving to suppress it. N.C.G.S. \\u00a7 15A-1340.16(e)(15).\\nAm Jur 2d, Criminal Law \\u00a7\\u00a7 525 et seq.\\nAppeal by defendant from judgment entered 11 October 1995 by Judge Peter M. McHugh in Rockingham County Superior Court. Heard in the Court of Appeals 16 January 1997.\\nAttorney General Michael F. Easley, by Assistant Attorney General John A. Greenlee, for the State.\\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.\", \"word_count\": \"4206\", \"char_count\": \"25621\", \"text\": \"WALKER, Judge.\\nOn 6 March 1995, defendant was indicted on six counts of assault with a deadly weapon with intent to kill inflicting serious injury. These cases were consolidated for hearing. In case 95 CRS 2015, defendant was found guilty and sentenced to a minimum term of 108 months and a maximum term of 139 months of imprisonment. In the remaining five cases, defendant was found guilty of assault with a deadly weapon inflicting serious injury and was sentenced to: 36 to 53 months of imprisonment each in 95 CRS 2016 and 95 CRS 2019; and 29 to 44 months of imprisonment each in 95 CRS 2017, 95 CRS 2018, and 95 CRS 2020, for a total of a minimum term of 267 months and a maximum term of 377 months of imprisonment with the sentences to run consecutively.\\nThe evidence presented tended to show that around midnight on 18 February 1995, defendant arrived at the Kingsway Pavilion, a nightclub in Rockingham County. Defendant had on his person a nine millimeter semi-automatic pistol which was loaded to its capacity of sixteen rounds. After arriving, defendant attempted to locate Gary Blackstock among the crowd, which was estimated to be between 90 and 135 people. Defendant saw Blackstock, moved toward him and opened fire on him with the pistol. As defendant fired the pistol, he held it sideways and waved it back and forth. Defendant continued firing as he pursued Blackstock, who ran for the front door. Defendant then fled the scene, disposed of the pistol and turned himself in to the magistrate's office 48 hours later.\\nThe bullets struck Blackstock and five other people and the bullet fragments struck walls, light fixtures and the floor. Blackstock was shot three separate times, in the left wrist, which was shattered, in the left thigh, and under the calf of his left leg. After reconstructive surgery he lost fifty percent of the function of his left wrist and thumb. Further, he had five surgeries on his left leg, including arterial replacement and the removal of his calf muscle, and he permanently lost control of his left foot.\\nGreg Nordan was shot in the upper left arm, disintegrating the bone. He underwent reconstructive surgery, with bone taken from his hip to repair his arm, which was held in place with a metal plate and pins. He has retained the use of his arm, but stated that \\\". . . in the winter or in bad weather it will always bother me and my arm will never be right again . . . [and] . I am just not as strong in that arm.\\\"\\nJermaine Jackson was struck in the side just above his thigh. The bullet pierced his large and small intestines, which required three surgeries and the installation of a colostomy bag. He also suffered nerve damage which had not healed.\\nPreston Doug Clark suffered a gunshot wound to his right jaw, which shattered both his right and left jaws. He was hospitalized for two weeks and continued to suffer recurrent pain from the injury at the time of trial.\\nKevin Richardson was hit by a single bullet that entered his spine, leaving him permanently paralyzed from the mid-chest down. The bullet shattered inside his body causing injuries to his lungs and left hand. At the time of trial, Richardson was undergoing therapy twice a week and taking medication.\\nJonathan Woodbury was shot once in the leg where the bullet passed through his calf leaving his leg numb. He experienced a burning and throbbing sensation and was treated at the hospital for his injury.\\nWhen defendant turned himself in to the magistrate's office, he made a voluntary statement admitting the shootings. In his statement, defendant also recounted that he had been stabbed in the abdomen by Gary Blackstock during an altercation in January 1995 at the Kingsway Pavilion. After this stabbing, defendant was hospitalized for three days. The incident was reported to the Eden Police Department by hospital personnel, but defendant refused to identify his attacker and the investigation was closed. Blackstock confirmed that he had \\\"cut\\\" defendant during the dispute at the Kingsway Pavilion in January prior to the shooting.\\nJohn Frank Warner, III, a clinical psychologist, testifying on defendant's behalf, stated that defendant had an IQ of 77, which placed him in a \\\"borderline range of intelligence,\\\" and that he exhib ited reading skills at an eighth grade level, spelling skills at a fifth grade level, and math skills at a fourth grade level. Warner also testified that defendant was suffering from \\\"borderline mental disorder, which is a mental illness that describes someone who is immature and unpredictable.\\\" Further, since defendant was reported to have been intoxicated at the time of the shootings, Warner believed defendant was impaired as a result of the alcohol and of his emotional immaturity. Warner also described defendant as experiencing generally heightened feelings of fear and apprehension resulting from the January stabbing incident.\\nDefendant first asserts that his conviction in the Nordan case must be vacated because the bill of indictment did not allege the essential element of \\\"serious injury.\\\" First, we note the Nordan indictment was entitled \\\"Assault With a Deadly Weapon with Intent to Kill Inflicting Serious Injury . . . Offense in Violation of G.S. \\u00a7 14-32(a).\\\" Further, the indictment alleged that defendant \\\"did assault Gregory Wayne Nordan with a 9mm pistol, a firearm, a deadly weapon by shooting him in the left arm, requiring medical attention. The assault was intended to kill and resulted in the victim to be [sic] hospitalized.\\\"\\n\\\"A charge in a bill of indictment must be complete in itself and contain all of the material allegations which constitute the offense.\\\" State v. Guffey, 265 N.C. 331, 333, 144 S.E.2d 14, 16 (1965). However, this rule does not require an indictment to exactly track the statutory language setting forth a particular criminal offense, so long as the indictment states facts which constitute every element of the crime charged. State v. Hicks, 86 N.C. App. 36, 40, 356 S.E.2d 595, 597 (1987). Further, our Supreme Court has stated that the term \\\"serious injury\\\" under N.C. Gen. Stat. \\u00a7 14-32(a) means a physical or bodily injury which results from an assault with a deadly weapon, determined according to the facts of each case. State v. James, 321 N.C. 676, 688, 365 S.E.2d 579, 586-87 (1988) (citing State v. Jones, 258 N.C. 89, 128 S.E.2d 1 (1962)).\\nAlthough the indictment did not track the exact language of N.C. Gen. Stat. \\u00a7 14-32(a) by using the term \\\"serious injury,\\\" it did aver that the victim had received a gunshot wound to the left arm which required medical treatment and hospitalization. The indictment, when read as a whole, sufficiently stated facts which support every element of the crime charged and apprised defendant of the specific charge against him.\\nDefendant next assigns as error the trial court's instruction that Woodbury's injury was serious and its refusal to submit the lesser included offense of assault with a deadly weapon.\\nA trial court may peremptorily instruct the jury on the serious injury element if \\\"the evidence 'is not conflicting and is such that reasonable minds could not differ as to the serious nature of the injuries inflicted.' \\\" State v. Hedgepeth, 330 N.C. 38, 54, 409 S.E.2d 309, 318-19 {quoting State v. Pettiford, 60 N.C. App. 92, 97, 298 S.E.2d 389, 392 (1982)). In Hedgepeth, the victim was shot through the ear, causing a wound requiring six or seven stitches to close. She bled profusely, suffered a bruise and bums, and required emergency medical treatment. At the time of trial, she still suffered a ringing in her ear. This Court determined, based on that evidence, that \\\"reasonable minds could not differ as to the seriousness\\\" of the physical injuries. Id. at 54-55, 409 S.E.2d at 319.\\nIn this case, evidence showed that the bullet entered Woodbury's leg from the side into the top part of his calf and exited out of the bottom of the calf muscle. His leg went numb and then began burning and throbbing. Woodbury needed assistance to leave the building and was taken to the hospital for treatment. Based on this evidence, we decline to disturb the trial court's determination that Woodbury's injury was \\\"serious\\\" within the meaning of N.C. Gen. Stat. \\u00a7 14-32(a) and that reasonable minds could not differ as to the seriousness of his injuries. Thus, the trial court was not required to submit the lesser-included offense of assault with a deadly weapon to the jury.\\nIn his third assignment of error, defendant states that he is entitled to a new sentencing hearing in the Nordan case because the trial court's finding of the aggravating factor that the victim suffered permanent and debilitating serious injury is not supported by the evidence.\\nThe State bears the burden of persuasion on aggravating factors by a preponderance of the evidence. State v. Parker, 315 N.C. 249, 255, 337 S.E.2d 497, 500 (1985). The evidence presented at trial showed that Nordan was shot in the upper left arm, the bullet disintegrated the bone, the arm bone was removed, and reconstructive surgery transferred bone from his hip to his arm, which is held in place by a metal plate and nine screws. Further, Nordan testified that, \\\" . in the winter or bad weather it will always bother me and my arm will never be right again.\\\" Moreover, the following exchange took place between Nordan and the prosecutor:\\nQ: And is there a permanent injury? Can you not use the arm or anything like that?\\nA: No, I am just not as strong in that arm.\\nIt is clear from the exchange, that Nordan was confirming that his injured arm, while not useless, was diminished in strength. Thus, the State met its burden of supporting the aggravating factor of the victim having suffered a serious injury that is permanent and debilitating.\\nDefendant next contends that he is entitled to new sentencing hearings in the Richardson and Nordan cases because the trial court erroneously used evidence necessary to prove an element of the offense to also prove the aggravating factor that each victim suffered a serious injury that was permanent and debilitating.\\nN.C. Gen. Stat. \\u00a7 15A-1340.16(d) provides that \\\"[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation....\\\" Defendant argues that because Richardson and Nordan each suffered only one injury from the assaults (Richardson was paralyzed and Nordan's arm bone was shattered), there was no evidence relating to any permanent and debilitating serious injury with which to prove the aggravating factor other than the evidence which was necessary to prove the serious injury element of the offense. We disagree.\\nIn State v. Evans, 120 N.C. App. 752, 463 S.E.2d 830 (1995), disc. review denied, 343 N.C. 310, 471 S.E.2d 78 (1996), this Court examined a similar issue. In Evans, the defendant argued that the court used the same evidence to support two aggravating factors in violation of N.C. Gen. Stat. \\u00a7 15A-1340.4(a)(l). In overruling the defendant's assignment of error, this Court looked to the North Carolina Supreme Court decision in State v. Brinson, 337 N.C. 764, 448 S.E.2d 822 (1994) stating:\\nIn State v. Brinson, defendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury. The State's evidence showed that defendant got into a confrontation with Eason, his cellmate, whereupon defendant struck Eason in the jaw and then slammed his head against the bars. Eason then heard his neck \\\"pop\\\" but the defendant continued to slam Eason's head on the floor. Eason was permanently paralyzed from the chest down as a result of a broken neck. The Court held that \\\"[t]he evidence relating to the victim's broken neck, aside from evidence relating to the resulting paralysis, was sufficient to establish the element of the crime that the defendant inflicted a 'serious injury' upon the victim.\\\" Further, the Court found that the evidence relating to the broken neck was not used in making the finding that the \\\"injuries sustained by the victim were extremely severe and permanent;\\\" instead, that finding rested solely on the victim's paralysis. (Citations omitted.)\\nId. at 757, 463 S.E.2d at 833.\\nThe same rationale that our courts applied in Brinson and Evans applies in the instant case. Here, the language of the statute, that \\\"the serious injury inflicted upon the victim is permanent and debilitating\\\" creates a distinction between the suffering of the victim at the time the serious injury is inflicted and any long-term or extended effects that arise due to that serious injury. The gunshot wounds suffered by Richardson and Nordan resulted in serious injuries at the time they were inflicted, wholly apart from their consequences. Richardson's paralysis and Nordan's weakness and diminished ability to use his arm were the long-term effects of these injuries. Thus, the same evidence was not used to support an element of the offense and the aggravating factor.\\nDefendant also assigns as error the trial court's finding of an aggravating factor that defendant used a weapon or device which normally would be hazardous to the lives of more than one person. Defendant argues that there was insufficient evidence to establish that he used a semi-automatic weapon.\\nIn his statement to the police, the defendant said he used a \\\"9 millimeter pistol.\\\" Five eyewitnesses testified that defendant used \\\"a black 9 millimeter.\\\" The State, without objection, offered for illustrative purposes, a 9 millimeter semi-automatic magazine fed Ruger pistol capable of holding 16 rounds of ammunition. All the witnesses who were asked, stated that this Ruger weapon was \\\"similar to\\\" or \\\"looked like\\\" the weapon used by defendant. Officer Hopper of the Eden Police Department testified that the descriptions of the weapon by the defendant and by the eyewitnesses were substantially the same. A strong inference can also be drawn from the evidence that the weapon used by defendant contained multiple rounds of ammunition which were discharged in rapid fire as would a semi-automatic weapon.\\nThis evidence is sufficient to support a finding that the weapon used by the defendant was in fact a semi-automatic weapon. Further, this Court in State v. Antoine, 117 N.C. App. 549, 551, 451 S.E.2d 368, 370, disc. review denied, 340 N.C. 115, 456 S.E.2d 320 (1995) held that a semi-automatic pistol \\\"in its normal use is hazardous to the lives of more than one person and is the type of weapon contemplated by N.C. Gen. Stat. \\u00a7 15A-1340.4 (a)(1)(g) (1988).\\\" See also, State v. Evans, 120 N.C. App. 752, 463 S.E.2d 830 (1995), disc. review denied, 343 N.C. 310, 491 S.E.2d 78 (1996). This assignment of error is overruled.\\nDefendant's sixth assignment of error contends that the trial court erroneously used evidence, which was necessary to prove an element of the offense, to also prove the aggravating factor that defendant used an automatic weapon normally hazardous to the lives of more than one person.\\nDefendant argues that because the evidence of the use of a particular weapon was used to prove an element of the assaults, the aggravating factor challenged cannot stand because it is the same, weapon. However, this Court has previously addressed this issue and held that it was not error to also find an aggravating factor from the use of a weapon after a defendant has been convicted of assault under N.C. Gen. Stat. \\u00a7 14-32(a). In State v. Platt, 85 N.C. App. 220, 228, 345 S.E.2d 332, 336, disc. review denied, 320 N.C. 516, 358 S.E.2d 529 (1987), this Court stated:\\n[Defendant further contends that the use of this factor to aggravate his sentences for assault with a deadly weapon with intent to kill inflicting serious injury is prohibited by G.S. \\u00a7 15A-1340.4(a)(l) . However, in order to prove its case, the State simply needed to show that defendant used a deadly weapon, and it did not need to show, as an essential part of its proof of the charged offenses, that defendant employed a weapon normally hazardous to the lives of more than one person. Accordingly, we hold the court did not err in finding this factor. (Citations omitted.)\\nThe same reasoning used in Platt applies in this case and we find no error.\\nLastly, defendant assigns as error the trial court's failure to find three statutory mitigating sentencing factors in all six cases. Defendant asserts that the trial court failed to find the following statutory mitigating factors: (1) \\\"the defendant was suffering from a mental or physical condition that was insufficient to constitute a defense but significantly reduced [his] culpability for the offense;\\\" (2) \\\"the relationship between the defendant and the victim was otherwise extenuating;\\\" and (3) \\\"the defendant has accepted responsibility for [his] criminal conduct.\\\" See N.C. Gen. Stat. \\u00a7 15A-1340.16(e)(3), (8), and (15) (1996).\\nA sentencing judge must find a statutory mitigating sentence factor if it is supported by a preponderance of the evidence. State v. Ahearn, 307 N.C. 584, 596-97, 300 S.E.2d 689, 696-97 (1983). However, the defendant bears the burden of persuasion, by a preponderance of the evidence, in establishing his entitlement to statutory factors in mitigation. State v. Bare, 77 N.C. App. 516, 524, 335 S.E.2d 748, 752 (1985), disc. review denied, 315 N.C. 392, 338 S.E.2d 881 (1986).\\nDr. Warner testified that defendant had an IQ of 77, lower than average reading, spelling and math skills, and he also had symptoms of increased suspicion and paranoia. He further stated that these were characteristics of a person with \\\"borderline mental disorder\\\" which is \\\"a mental illness that describes someone who is immature and unpredictable.\\\" Defendant contends the trial court erred in failing to find that these conditions reduced his culpability for the offenses. The trial court, in expressing its doubts about the credibility and substance of this evidence, declined to find this mitigating factor. We find no error in this determination.\\nDefendant next argues that the prior altercation between himself and one of the victims (Gary Blackstock) created a relationship that gave rise to extenuating circumstances in mitigation of his conduct under N.C. Gen. Stat. \\u00a7 15A-1340.16(e)(8). The previous history of a dispute between defendant and Blackstock was not such as would compel the trial court to find this mitigating factor, which would serve to diminish defendant's responsibility for the acts.\\nDefendant finally argues that he accepted responsibility for his criminal conduct so as to entitle him to a finding in mitigation under N.C. Gen. Stat. \\u00a7 15A-1340.16(e)(15). However, when defendant moved to suppress the incriminating statement made to the Eden Police Department, he in effect repudiated the statement and is not entitled to this statutory mitigating factor. See State v. Ruffin, 90 N.C. App. 705, 370 S.E.2d 275 (1988).\\nThe trial court properly determined that defendant failed to meet his burden of persuasion on any of the three statutory mitigating factors; therefore, this assignment of error is overruled.\\nNo error.\\nJudges JOHN and McGEE concur.\"}" \ No newline at end of file diff --git a/nc/11911772.json b/nc/11911772.json new file mode 100644 index 0000000000000000000000000000000000000000..a9849beff8f9b4a62c01f42f309dea9181d84013 --- /dev/null +++ b/nc/11911772.json @@ -0,0 +1 @@ +"{\"id\": \"11911772\", \"name\": \"IN THE MATTER OF: JOSEPH PETER (TREY) JURGA, III, Respondent\", \"name_abbreviation\": \"In re Jurga\", \"decision_date\": \"1996-07-02\", \"docket_number\": \"No. COA94-1439\", \"first_page\": \"91\", \"last_page\": \"96\", \"citations\": \"123 N.C. App. 91\", \"volume\": \"123\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T17:44:39.815405+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges MARTIN, John C. and McGEE concur.\", \"parties\": \"IN THE MATTER OF: JOSEPH PETER (TREY) JURGA, III, Respondent\", \"head_matter\": \"IN THE MATTER OF: JOSEPH PETER (TREY) JURGA, III, Respondent\\nNo. COA94-1439\\n(Filed 2 July 1996)\\nParent and Child \\u00a7 96 (NCI4th)\\u2014 termination of parental rights \\u2014 unilateral declaration by parents insufficient\\u2014 petition for appointment of guardian \\u2014 dismissal proper\\nNothing in the statutorily established procedure for the termination of parental rights allows for a unilateral declaration of termination by the natural parents, and nothing in the record of this case indicated the existence of the statutorily prescribed two-stage proceeding at which the trial court, and not the parents, resolves the issues of whether grounds for termination exist and, if so, whether termination would indeed be in the best interests of the child; therefore, since the parental rights of the parents had not been terminated by their filing of a declaration of termination, they were still the natural guardians of the minor child, and a petition for adjudication of incompetence and application for appointment of guardian was properly dismissed for lack of jurisdiction.\\nAm Jur 2d, Parent and Child \\u00a7 7.\\nValidity of state statute providing for termination of parental rights. 22 ALR4th 774.\\nPetitioners appeal from order filed 27 September 1994 by Judge Marcus L. Johnson in Gaston County Superior Court. Heard in the Court of Appeals 4 October 1995.\\nBooth Harrington Johns & Campbell, L.L.P., by A. Frank Johns, for petitioners-appellants.\\nHenry L. Fowler, III for respondent-appellee.\", \"word_count\": \"2053\", \"char_count\": \"13003\", \"text\": \"JOHN, Judge.\\nPetitioners contend the trial court erred by dismissing petitioners' application for appointment of a guardian of the person of the minor respondent (Trey). We disagree.\\nPertinent facts and procedural information are as follows: Born in 1981, Trey has been afflicted since birth with severe mental retar dation, Beckwith-Weiderman Syndrome and chronic Ectopic Atrial Tachycarda. He remained in acute care hospital settings until 1992 when he was transferred to Holy Angels Services, Inc. (Holy Angels), a less restrictive intermediate care facility for mentally retarded patients located in Gaston County, North Carolina. Patient services at Holy Angels are provided through funding entitlements from state and federal agencies, North Carolina entitlements being available to a minor whose parent or legal guardian is domiciled in North Carolina.\\nSubsequent to Trey's placement at Holy Angels, however, his parents, Joseph Peter Jurga, Jr. and Melanie S. Jurga (the Jurgas), were relocated by his father's employer to a new job in South Carolina. The North Carolina entitlements were thus at risk. At the direction of the North Carolina Department of Public Instruction, the Jurgas arranged appointment of a North Carolina resident as Trey's \\\"surrogate parent\\\" for purposes of maintaining the child at Holy Angels with governmental benefits. However, the Jurgas were informed in 1994 that such appointment might be insufficient. The Jurgas were aware that Trey's removal from Holy Angels would severely and detrimentally impact his educational and functional progress, but considered their financial resources insufficient to continue the placement without governmental entitlements.\\nOn 27 May 1994, the Jurgas each executed a \\\"Declaration of Voluntary Termination of Parental Rights\\\" (the Declaration), in which they proclaimed the following:\\n7. Based on the threatened loss of necessary residential services for Trey, and the potential for financial liability which we might be obligated, but unable to pay, we declare that our son is dependant and neglected as those words are defined in N.C. Gen. Stat. Sec. 7A-517(13) and (21) of the North Carolina Juvenile Code, and further that our son is educationally and residentially abandoned, and threatened with immediate potential loss of educational, habilitative and residential services necessary to ameliorate his agglomerate disabilities;\\n8. In order to insure that [our] son not suffer neglect, abandonment, loss of services and dependency, [we] hereby voluntarily declare termination of [our] parental rights as said termination is defined under Article 24B of N.C. Gen. Stat. Chp. 7A.\\n10. Having voluntarily terminated [our] parental rights, [we] request the Clerk to receive, and [we] support the application of Robert' W. Simmons and Lee H. Simmons as co-guardians of the person of [our] son, Trey.\\nThereafter, on 15 June 1994, petitioners Robert W. Simmons and Lee H. Simmons, relatives of Trey's mother and residents of North Carolina, filed a \\\"Petition for Adjudication of Incompetence and Application For Appointment of Guardian\\\" (the Petition) before the Clerk of Gaston County Superior Court (the Clerk), attaching the Declaration. That same day, the Clerk appointed J. Ben Morrow (Morrow) as Guardian Ad Litem for Trey. On Trey's behalf, Morrow answered the Petition 22 June 1994, seeking dismissal of the action on several grounds, including lack of jurisdiction.\\nFollowing a telephonic hearing conducted 24 June 1994, the Clerk entered an order of dismissal 28 June 1994 and taxed petitioners with costs and guardian ad litem fees. Pursuant to N.C.G.S. \\u00a7 35A-1115 and 1-272, petitioners appealed the decision to the Superior Court and both parties filed briefs supporting their respective positions.\\nOn 26 September 1994, the trial court entered an order dismissing the application and containing the following conclusion:\\n5. Neither the Clerk of Superior Court, the Court of original jurisdiction, nor this Court has jurisdiction to adjudicate the incompetence of a 13 year old minor who is alleged to be incompetent in the verified Petition filed in the matter and that the Petition of Robert W. Simmons and Lee H. Simmons should be dismissed.\\nFrom this order, petitioners filed a Notice of Appeal to this Court 12 October 1994.\\nPetitioners contend the Petition constituted an action falling under Subchapter II [Guardian and Ward], N.C. Gen. Stat. \\u00a7 35A-1220 through 1228. Consequently, they continue, the definitions and jurisdictional requirements set out in the subchapter control and allow appointment of a guardian of the person for Trey by the Clerk. However, assuming arguendo the accuracy of these assertions, we nonetheless conclude the petition was properly dismissed on the basis of lack of jurisdiction.\\nThe pertinent statutory provisions are as follows:\\n(12) The term \\\"minor\\\" means a person who is under the age of 18, is not married, and has not been legally emancipated.\\n(a) The General Assembly of North Carolina recognizes that:\\n(6) Minors, because they are legally incompetent to transact business or give consent for most purposes, need responsible, accountable adults to handle property or benefits to which they are entitled. Parents are the natural guardians of the person of their minor children, but unemancipated minors, when they do not have natural guardians, need some other responsible, accountable adult to be responsible for their personal welfare and for personal decision-making on their behalf.\\n(b) The purposes of this Subchapter are:\\n(1) To establish standards and procedures for the appointment of guardians of the person, . . . and for minors who need guardians.\\n(a) . . . . Clerks of superior court in their respective counties have original jurisdiction for the appointment of. . . general guardians for minors who have no natural guardian .\\nN.C. Gen. Stat. \\u00a7 35A-1202(12), 35A-1201(a)(6), 35A-1201(b)(l), and 35A-1203(a).\\nUnder this subchapter, therefore, the Clerk may appoint a guardian only for a minor who has no parent or natural guardian. G.S. \\u00a7 35A-1201(a)(6), 35A-1201(b)(l), and 35A-1203(a). Although Trey, 13 years old at the time of hearing, appears to meet the definitional requirements of G.S. \\u00a7 35A-1202(12), we reject petitioners' contention that he is without a natural guardian as the result of filing by the Jurgas of the Declaration.\\nWe have previously held \\\"[t]he exclusive judicial procedure to be used in termination of parental rights cases is prescribed by the Legislature in N.C. Gen. Stat. \\u00a7 7A-289.22, et seq. [Art. 24B].\\\" In re Curtis v. Curtis, 104 N.C. App. 625, 626-27, 410 S.E.2d 917, 919 (1991) (emphasis added) (trial court erred by granting summary judgment in TPR action because \\\"Article 24 of Chapter 7A does not provide for a summary proceeding . . . .\\\"); see also In re Pierce, 53 N.C. App. 373, 380, 281 S.E.2d 198, 203 (1981) (\\\"The statutorily established procedure for the termination of parental rights does not include the right to file a counterclaim, and we will not add that right by imputation.\\\")\\nIn G.S. \\u00a7 7A-289.22, our General Assembly declared its purpose in enacting Article 24B was\\nto provide judicial procedures for terminating the legal relationship between a child and his or her biological or legal parents when such parents have demonstrated that they will not provide the degree of care which promotes the healthy and orderly physical and emotional well-being of the child.\\nN.C.G.S. \\u00a7 7A-289.23 provides that the\\ndistrict court shall have exclusive original jurisdiction to hear and determine any petition relating to termination of parental rights to any child who resides in, is found in, or is in the legal or actual custody of a county department of social services or licensed child-placing agency in the district at the time of filing of the petition.\\nA petition to \\\"terminate the parental rights of either or both parents,\\\" which institutes the action, may be filed by those persons or agencies listed in G.S. \\u00a7 7A-289.24(l)-(7). See In re Manus, 82 N.C. App. 340, 342, 346 S.E.2d 289, 291 (1986) (\\\"[section] limits the persons or agencies who may petition for termination of parental rights.\\\") Following the filing of a petition, G.S. \\u00a7 7A-289.30 and 7A-289.31 proscribe a two-stage proceeding: (1) the adjudicatory stage; and (2) the dispositional stage. In re Montgomery, 311 N.C. 101, 110, 316 S.E.2d 246, 252 (1984). During the adjudicatory phase, see G.S. \\u00a7 7A-289.30, the trial court must determine whether the petitioner has met its burden to prove by clear, cogent, and convincing evidence the presence of grounds for termination as set forth in G.S. \\u00a7 7A-289.32. In re White, 81 N.C. App. 82, 85, 344 S.E.2d 36, 38, disc. review denied, 318 N.C. 283, 347 S.E.2d 470 (1986). At the dispositional stage, the court decides whether termination of parental rights is in the best interests of the child; if so, termination must then be ordered. G.S. \\u00a7 7A-289.31; see also In Re McMahon, 98 N.C. App. 92, 94, 389 S.E.2d 632, 633 (1990).\\nContrary to petitioners' proposition herein, however, nothing in the \\\"statutorily established procedure for the termination of parental rights,\\\" see Pierce, 53 N.C. App. at 380, 281 S.E.2d at 203, allows for a unilateral \\\"declaration of termination\\\" by the parents, and we specifically decline to \\\"add [such] right by imputation.\\\" See id. Moreover, we hold the Jurgas' attempt to relinquish their parental rights and responsibilities, see Wells v. Wells, 227 N.C. 614, 616, 44 S.E.2d 31, 33 (1947) (parental duty of support and maintenance), contravenes the statutorily prescribed scheme for termination of parental rights.\\nFirst, while G.S. \\u00a7 7A-289.24 provides that \\\"[e]ither parent\\\" may institute an action seeking termination of the rights of the other, it expressly limits the persons and agencies who may petition for termination, Manus, 82 N.C. App. at 342, 346 S.E.2d at 291, and in no wise includes natural parents jointly seeking termination of their own parental rights. Moreover, strikingly absent in the record sub judice is evidence of the statutorily prescribed two-stage proceeding at which the trial court, and not the parents, resolves the issues of whether grounds for termination exist, and if so, whether termination would indeed be in the best interests of the child. See White, 81 N.C. App. at 85, 344 S.E.2d at 38; and McMahon, 98 N.C. App. at 94, 389 S.E.2d at 633. In sum, we agree with appellee-guardian ad litem's assessment that \\\"[s]ince the parental rights of the Jurga's [sic] had not been terminated, they were still the natural guardians of the minor child, [and] therefore the Petition for Adjudication of Incompetence and Application for Appointment of Guardian was properly dismissed.\\\" See G.S. \\u00a7 35A-1201(a)(6), 35A-1201(b)(1), and 35A-1203(a) (giving the Clerk of Superior Court jurisdiction to appoint a guardian for a minor only when the minor has no natural guardian, i.e. parent.) While not insensitive to Trey's circumstance and the dilemma faced by the Jurgas, we must follow established law. See Roberts v. Young, 120 N.C. App. 720, 731, 464 S.E.2d 78, 86 (1995) (this Court \\\"is bound by the plain meaning of a statute where its language is clear and unambiguous,\\\" and our holdings \\\"must remain consistent with any previous interpretations of a statute.\\\")\\nHaving determined the petition was properly dismissed on jurisdictional grounds, we decline to discuss appellants' remaining arguments.\\nAffirmed.\\nJudges MARTIN, John C. and McGEE concur.\"}" \ No newline at end of file diff --git a/nc/12133149.json b/nc/12133149.json new file mode 100644 index 0000000000000000000000000000000000000000..cd27105c2f75c6b46a30367ce7c734fbc7404fa8 --- /dev/null +++ b/nc/12133149.json @@ -0,0 +1 @@ +"{\"id\": \"12133149\", \"name\": \"State versus Boon\", \"name_abbreviation\": \"State v. Boon\", \"decision_date\": \"1801-12\", \"docket_number\": \"\", \"first_page\": \"246\", \"last_page\": \"261\", \"citations\": \"1 Tay. 246\", \"volume\": \"1\", \"reporter\": \"North Carolina Reports\", \"court\": \"North Carolina Superior Court\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:37:08.627867+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State versus Boon.\", \"head_matter\": \"State versus Boon.\\nThe act of 1791, sec. 3, relative to the murder of slaves, is not certain enough to warrant the Court to pass judgment of death upon a prisoner, convicted under it.\\nTHE prisoner was indicted on the third sec. of the act passed in 1791, the words of which are, \\u201c that if any person shall be hereafter guilty of wil- \\\" fully and maliciously killing a slave, such offender \\u201c shall upon the first conviction thereof be adjudg- \\\" ed guilty of murder, and shall suffer the same \\u201c punishment as if he had killed a freeman, any law \\\" usage or custom to the contrary notwithstanding.\\\"\\nThe prisoner was found guilty by a jury in Hillsborough Superior Court and being brought up to receive judgment, several exceptions were taken in arrest, by his counsel ; upon which the presiding judge directed the case to be sent up to obtain the opinion of this Court. The case was ably argued by Haywood and Duffy for the prisoner, and the Attorney General for the state.\\nThe following authorities were cited in behalf of the prisoner. 2 Hale\\u2019s Pl. Cor. 334, Kelyng 104, 4 Bl. Com. 98, 366, 2 Hawk. 446.\", \"word_count\": \"4341\", \"char_count\": \"24509\", \"text\": \"Hall, J.\\nThe prisoner has been found guilty of the offence charged in the indictment : whether any, or what punishment, can be inflicted upon him, in consequence thereof, is now to be decided. I will first consider, whether we have any authority to inflict any punishment upon him, from any Act of Assembly.\\nThe legislature in the year 1774, passed an Act, entitled an Act, to prevent the wilful and mali cious killing of slaves ; by which they annexed punishment of one year's imprisonment to the commission of the first offence ; and have declared that the person upon a second conviction thereof, shall be adjudged guilty of murder, and shall suffer death without benefit of clergy. In the year 1791, another Act was passed, for the purpose of examining this Act. The preamble of which, sec. 3, expresses, \\\" that whereas by another Act of As- \\\" sembly passed in the year 1774, the killing of a \\\" slave, however wanton &c. is only punishable \\\" in the first instance by imprisonment &c. which \\\" distinction of criminality between the murder of \\\" a white person, and one who is equally a human \\\" creature &c. is disgraceful to humanity &c. be it \\\" enacted &c. that if any person shall hereafter be \\\" guilty of wilfully and maliciously killing a slave, \\\" such offender shall upon the first coviction there- \\\" of be adjudged guilty of murder, and shall suf- \\\" fer the same punishment as if he had killed a free \\\" man.\\\" If we consider that the mildness of the punishment, directed to be inflicted upon the first conviction &c. by the former Act, is what the latter Act in its preamble, sec. 3, complains of, and go no further, our impression at once would be, that we had not only power to inflict a punishment upon the prisoner, but also, a greater one, than was annexed to the offence by the Act of 1774. But the preamble of a statute is no part of it ; 6 Mod. 62. Although it is often proper, to put such construction on a statute, as will agree with the preamble, yet it ought not to be done, when there by, the enacting clause would be confined to it ; 8 Mod. 144.\\nWe must then consider the words of the enacting clause, without regard to the preamble, in case they cannot be reconciled. If any person hereafter shall be guilty of killing a slave &c. such offender shall be adjudged guilty of murder &c. and shall suffer the same punishment, as if he had killed a free man. In case the person had killed a free man what punishment would the law have inflicted upon him ? Before this question can be solved, another must be asked ; because upon that, the solution of the first depends. What fort of a killing was it ? or what circumstances of aggravation or mitigation attended it ? did the act bespeak such depravity of heart, as would stamp it with the name of murder ? or were they such as justified it ? If of the former sort, capital punishment should be inflicted upon the author of it ; if of the latter sort, he is guiltless. That to which the legislature referred us for the purpose of ascertaining the punishment, proper to be inflicted is, in itself, so doubtful and uncertain, that I think no punishment whatever can be inflicted : without using a discretion and indulging a latitude, which in criminal cases, ought never to be allowed a Judge.\\nIt may be thought, that the words \\\" shall suffer \\\" the same punishment as if he had killed a free \\\" man,\\\" from the connexion in which they stand with the words preceding them in the same clause, viz. \\\" that if any person shall hereafter be guilty \\\" of wilfully and maliciously killing a slave \\\" should be allowed to have this meaning, and \\\" shall suffer \\\" the same punishment, as if he had wilfully and ma- \\\" liciously killed a free man.\\\" I cannot agree to this construction ; because if is a rule, that penal statutes should be construed strictly ; 1 Bl. Com. 88. Much latitude of construction ought not to be permitted to operate against life : if it operate at all, it should be in favor of it. Punishments ought to be plainly defined and easy to be understood ; they ought not to depend upon construction or arbitrary discretion.\\nPerhaps the legislature did intend, that those words should convey that meaning ; but it is not certain that such was their intention : if it was, it might have been easily expressed ; and indeed, if it were so expressed, it would not be altogether free from uncertainty. But suppose that to have been their intention, and that intention plainly expressed and free from uncertainty ; is the benefit of clergy taken away ? It is laid down in 2 Hale 330, that where a statute makes a new felony, clergy is incident thereto, unless it be especially taken away by Act of Parliament. This doctrine is recognized by Sir William Blackstone in the fourth book of his commentaries, page 98 ; but I think it unnecessary to consider this part of the case now ; because, for the reasons given, I do not feel myself authorized by the Act of Assembly, to say that any punishment should be inflicted on the prisoner. I will only add, that our legislature seem to have also recognized the doctrine laid down by Ld. Hale, because in the Act of 1774, before spoken of, the benefit of clergy is taken away in express words, upon a second conviction &c ; the same thing is evidenced by many other Acts of Assembly.\\nII. But it has been also contended, on behalf of the State, that the offence with which the prisoner is charged, is a felony at common law, and that having been found guilty by the jury, he ought to be punished, independently of any Act of Assembly on the subject. This question arises out of the peculiarity of our situation ; slavery not being known to the laws of England, from them we cannot derive our usual information. Sir William Blackstone says, liberty is so deeply implanted in the English Constitution, that the moment a slave lands there, he falls under the protection of the laws, and so far becomes a free man ; though the master's right to his service may possibly continue ; 1 Bl. Com. 127. From this expression, I understand the author's meaning to be, that the reason why the laws extend their protection to a slave is, because the moment he lands in England he undergoes a change, his condition is ameliorated, and in contemplation of law, at least, he is no longer a slave, but a free man. If this be the reason, why a slave comes within the protection of the laws of England, it would follow, that if a slave were carried there, and his condition of slavery were not altered, the laws would not extend their protection to him ; because a slave in a pure state of slavery, has no rights. President Montesquieu, in his Spirit of Laws, Vol. I. Book 15. cap. I. and Sir William Blackstone in his Commentaries, Vol, I. 423, define pure slavery to be, that whereby an absolute power is given to the master, over the life and fortune of his slave. In some countries where slavery has existed, laws have been made from time to time, ameliorating its condition ; the power of taking away their lives, or cruelly treating them, has sometimes been restrained : these restraints, we find, were the consequence of positive laws : they did not exist before these laws imposed them ; they were unknown in a pure state of slavery. It is said in Co. Litt. 116, b, that he that was taken in battle, remained bond to his taker forever, and he could do with him as with his beast ; he could kill him with impunity, &c. Afterwards we find it ordained, that the life of a villein was not in the power of his lord ; that he that killed his villein, should have the same punishment as if he had killed a free man. The lord could not maim his villein ; if he did, the King would punish him for maiming his subject ; because he disabled him, so that he could not do the King service ; Co. Litt. 127. a. Villeinage however, as it existed in England, reflects but little light on our subject ; it had, attached to it, certain rights, that were unknown to a pure state of slavery. We have seen, that a villein is called the King's subject ; that the King had a right to exact services from him ; the lord's power over him was not absolute : a villein could not sue his lord, but could bring all manner of actions against every other person ; he might have an action of appeal against his lord for the death of his father &c ; Litt. sec. 189 : he might be an executor, and in that capacity sue his lord ; sec. 191.\\nSlaves in this country, possess no such rights ; their condition is more abject ; 2 Sal. 666 : they are not parties to our Constitution ; it was not made for them. What the powers of a master were over his slave, in this country, prior to the year 1774, have not been defined. I have not heard, that any convictions and capital punishments took place before that period, for killing of negroes. By an Act of Assembly, passed in April, in the year 1741, cap. 24, sec. 54, it is declared that if in the dispersing of any unlawful assemblies of rebel slaves &c., apprehending runaways &c., in correction &c., any slave shall happen to be killed or destroyed &c., the court of the county &c., shall put a valuation upon such slave. In the next succeeding section it is declared, that nothing herein contained, shall be construed, deemed, or taken to defeat or bar the action of any persons, whose slave or slaves shall happen to be killed, by any other person whatsoever, contrary to the directions & c., of this Act ; but all and every owner &c., shall and may bring his, her or their action for recovery of damages, for such slave or slaves so killed. From this part of the Act it appears, that before the Act passed, an action could have been suitained, by the owner of a slave, against any person who killed him ; the sole object of the last section is to fix such a construction on the first, and so to explain it, as that such action shall not be defeated or barred. It does not give the action, which before, would not lie, but guards it from such construction as would tend to narrow its operation. If then, this action could have been sustained, it must have been on the ground, that slaves were considered as chattels. Killing a person may amount to felony or not, as the circumstances of the case may be, that attend it. I understand that this action was sustainable in all cases of a killing of slaves, except in the cases provided for in the 54th. sec. If the killing of a slave, should be considered a felony at common law, in case it was done under the same circumstances of aggravation, as in the case of a freeman, would amount to felony ; what would be the result ? the person offending, would be answerable, both civiliter and criminaliter. The trespass, or civil injury, would not be extinguished in the felony ; but it would depend upon accident, whether a recovery could be effected or not. If the indictment should be first tried, and the prisoner found guilty and executed, the action would be at an end ; actio personalis moritur cum persona, and I take that to be such an action as the maxim would bear upon. These are consequences, I cannot be led to believe the legislature intended to give rise to : that they did not, may be further ascertained, from the Act passed in the year 1774, before mentioned ; where it is mentioned, that if any person shall be guilty of wilfully and maliciously killing a slave &c. such offender shall suffer twelve months imprisonment, and upon a second conviction, shall be adjudged guilty of murder, and shall suffer death without benefit of clergy ; in 3 sec. it is further declared, that such offender shall on the first conviction thereof, pay the owner such sum as shall be the value of such slave : it is not expressed what compensation shall be made to the owner, upon a second conviction, when the offender is to suffer death ; nor does the Act of 1791 direct that compensation shall be made to the owner, by the offender. So that, it does not appear that the legislature had an idea, that the offender should suffer death, and also make compensation to the owner of the slave ; which we have seen, would have been the case, if the killing of a slave had been felony at common law.\\nThe Act passed in the year 1774, is entitled an act to prevent the wilful and malicious killing of slaves. If it was a felony at common law to do so, the punishment due to it, was greater than that inflicted by this Act. I admit that nothing decisive of the question, is to be collected from the preamble, which expresses that doubts existed as to the punishment proper to be inflicted ; it is true the legislature might have thought that the punishment of death for the first offence, was too severe, and therefore not proper to be inflicted ; and in lieu of it, have substituted one year's imprisonment.\\nThe legislature declare, in the Act passed in the year 1791, sec. 3, that the punishment inflicted by the Act passed in the year 1774, is too mild ; and no doubt they intended, for the first offence, to inflict the punishment of death upon the first conviction : if so, and it was a felony at common law to kill a slave, under any circumstances which, in the case of a free man, would amount to felony, would not the same end have been answered by repealing the Act of 1774, and leaving the offence to be punished at common law, instead of passing an act, intended to speak the same language and to inflict the same punishment, as was spoken and inflicted by the common law ?\\nI have taken this view of the Acts of Assembly, to ascertain, as well as I could, the opinion entertained by the legislature on the latter question. From the consideration which I have given the whole case, if I even felt disposed to act the most rigid part towards the prisoner, the most I could say, and the greatest length I could go, would be, that it is doubtful whether the offence with which he is charged is a felony at common law or not. If it is doubtful whether he ought to be punished or not, that, certainly, is a sufficient reason for discharging him ; crimes and punishments ought to be ascertained with certainty. Feeling, however, as I do, but little doubt, I cannot hesitate to say, that he ought to be discharged.\\nJohnston, J.\\nThe murder of a slave, appears to me, a crime of the most atrocious and barbarous nature ; much more so, than killing a person who is free, and on an equal footing. It is an evidence of a most depraved, and cruel disposition, to murder one, so much in your power, that he is incapable of making resistance, even in his own defence ; and if at any time, his conduct becomes so obnoxious, that it cannot be longer borne by his master, he has it in his power to dispose of him and remove him to any distance he thinks proper. It is unnecessary to consider, what punishment was annexed to the murder of slaves in other countries either in antient or modern times ; the definition of murder, as laid down in our books, applies as forcibly to the murder of a slave as to the murder of a freeman ; and had there been nothing in our Acts of Assembly, I should not hesitate on this occasion to have pronounced sentence of death on the prisoner.\\nBut the Act of 1791, chap. 4, sect. 3, after enacting \\\" that if any person hereafter be guilty of wilfully and maliciously killing a slave, such offender shall, upon the first conviction thereof, be adjudged guilty of \\\"Murder ;\\\" had the act of assembly stopped here, there could have been no doubt in the present case ; but, when it goes on further to assign the punishment, it enacts in these words\\u2014 \\\" and shall suffer the same punishment, as if he had \\\" killed a freeman\\\". The killing of a freeman is punished in different ways, and in some cases no pun ishment is annexed to it ; as where a man kills another by accident, or as it is expressed in our books per infortunium ; or where a man kills another in his own defence. From the context, and taking every part of the section under consideration, there remains no doubt in my mind, respecting the intention of the legislature ; but the judges in this country as well as in England, have laid down, and invariably adhered to, very strict rules in the construction of penal statutes, in favor of life ; such as, that the words should be taken in mitiori sensu, where they are doubtful, or will admit of various constructions ; and that nothing shall be taken by construction, implication, or reference, from the context.\\nUnder these considerations ; under the influence of the decisions of the most respectable judges as reported in all the books which treat of the criminal law, though not without a considerable degree of reluctance, I am of opinion, that the judgment in this case should be arrested.\\nTaylor, J.\\nI cannot yield my assent to the position, that a new felony is created by the Act of 1791, or that any offence is created, which did not antecedently exist. For the killing of a slave, if accompanied with those circumstances which constitute murder, amounts to that crime, in my judgment, as much as the killing of a free man.\\nWhat is the definition of murder ? The unlawful killing of a reasonable creature within the peace of the state, with malice aforethought. A slave is a reasonable creature ; may be within the peace ; and is under the protection of the state ; and may become the victim of pre-conceived malice. Upon what foundation, can the claim of a master to an absolute dominion over the life of his slave, be rested ? The authority for it, is not to be found in the law of nature, for that will authorize a man to take away the life of another, only from the unavoidable necessity of saving his own ; and of this code, the cardinal duty is, to abstain from injury, and do all the good we can. It is not the necessary consequence of the state of slavery, for that may exist without it ; and its natural inconveniences ought not to be aggravated by an evil at which reason, religion, humanity and policy equally revolt. Policy may occasionally dictate the propriety of enhancing or mitigating the punishment ; may at one time subject the offender to a year's imprisonment, and at another to death ; yet amidst all these mutations the crime is unchanged in its essence, undiminished in its enormity. The scale of its guilt exists in those relations of things, which are prior to human institutions, and whose sanctions must forever remain unimpaired.\\nIt cannot be distinctly inferred, from the Act of 1774, that the legislature of that period doubted, whether this amounted to murder at common law ; they do indeed state, in the preamble of that Act, that some doubts have arisen, with respect to the punishment proper to be inflicted upon those guilty of the offence ; but such doubts resulting from considerations of a political nature, may very well consist with an entire conviction, that the crime is murder at common law. Doubtless, they may ordain what ever punishment they think fit for every crime ; they may at one time deem imprisonment sufficiently severe to repress the crime of killing a slave : when perhaps a different state of things may at another period suggest the necessity of an increased severity. But their adopting the lighter punishment, does not imply, that before the time of adoption, the act was without guilt. To pursue the argument in its consequences, it will follow, that from the first settlement of this state until the year 1774, no Act of the legislature having passed upon this subject, the crime of killing a slave with malice, was not punishable as homicide. The contrary conclusion appears to me most just ; namely that the crime was comprehended under the common law definition of murder, which the statutes of 23 Hen. 8 and 1 Ed. 6, deprived of clergy ; that it never ceased to be so considered: but, in 1774, the legis lature thought proper to mitigate the punishment of the first offence, from death, to imprisonment ; reserving the common law punishment of death to the second conviction. So it remained until 1791, when the legislature aimed to restore the former punishment, by the Act upon which this prisoner is indicted. The principle relied on is quite correct, that whenever an offence is made felony by statute, it shall have the benefit of clergy, unless it be expresly excluded from it ; and in all felonies clergy is allowable, unless taken away by statute ; but the Act of 1791 repealing that of 1774, necessarily revived the operation of those statutes by which murder is deprived of clergy, and if this Act had been a simple repeal, or sufficiently explicit in other respects, judgment of death must have been pronounced against the prisoner. But when the Court is called upon, under an Act of Assembly, to pronounce the highest punishment known to the law, they must he satisfied that the language used is clear and explicit to the object intended. For if it admits of two constructions, that must be adopted which is favorable to the prisoner. On this ground therefore and the reasons given by the rest of the Court, I think no judgment can be pronounced.\\nMacay, J.\\nThis indictment is grounded on the 3 sec. of the Act of the General Assembly, passed in 1791, entitled an Act to amend an Act, entitled an Act to prevent thefts and robberies by slaves, free negroes and mulattoes, passed in 1787, and to amend an Act, passed in 1774, entitled an Act to prevent the wilful and malicious killing of slaves.\\nThe third section enacts that if any person shall hereafter be guilty of wilfully and maliciouly killing a slave, such offender shall, upon the first conviction thereof, be adjudged guilty of murder, and shall suffer the same punishment as if he had killed a freeman, any law, or usage to the contrary notwithstanding.\\nHomicide, under the laws of this State, is divided into three classes, I. Murder, which is punishable with death and always attended with malice, express or implied ; II. Manslaughter, which is done on a sudden provocation, un-accompanied with malice, for this offence the offender is entitled to his clergy : III. Simple Homicide which is either justifiable or excusable, and for which the law of this State has inflicted no kind of punishment : the person charged being deemed unfortunate and not criminal. This is an offence first legislated upon by the Act of 1774, and finally by this Act of the General Assembly, of 1791, which has not affixed either the punishment of murder or manslaughter to it, but that of killing a freeman. The killing of a freeman under such circumstances as amounts neither to murder or manslaughter, is no crime ; no punishment can be inflicted ; the person charged is to be acquitted and discharged on his payment of costs. Therefore judgment must be stayed and the prisoner discharged.\\nJudgment arrested.\\nAccording to Judge Blackstone, the principal efficacy of human laws consists in restraining the conduct of men, as to in-indifferent points; but, he adds, \\\" with regard to such points as \\\" are not indifferent, human laws are only declaratory of, and \\\" act in subordination to, the divine and natural law. To in- \\\" stance in the case of murder: this is expressly forbidden by the \\\" divine and demonstrably by the natural law: and from these \\\" prohibitions arises the true unlawfulness of this crime. Those \\\" human laws, that annex a punishment to it, do not at all en- \\\" crease it's moral guilt, or superadd any fresh obligations in fo- \\\" ro conscience to abstain from it's perpetration.\\\" 1 Com. 43.\"}" \ No newline at end of file diff --git a/nc/12175630.json b/nc/12175630.json new file mode 100644 index 0000000000000000000000000000000000000000..7b459eb058c98840f27969f4c8928cab501262eb --- /dev/null +++ b/nc/12175630.json @@ -0,0 +1 @@ +"{\"id\": \"12175630\", \"name\": \"STATE OF NORTH CAROLINA v. SUSAN DENISE SHAW\", \"name_abbreviation\": \"State v. Shaw\", \"decision_date\": \"2014-09-16\", \"docket_number\": \"No. COA14-125\", \"first_page\": \"453\", \"last_page\": \"456\", \"citations\": \"236 N.C. App. 453\", \"volume\": \"236\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T02:25:09.562500+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges CALABRIA and STEPHENS concur.\", \"parties\": \"STATE OF NORTH CAROLINA v. SUSAN DENISE SHAW\", \"head_matter\": \"STATE OF NORTH CAROLINA v. SUSAN DENISE SHAW\\nNo. COA14-125\\nFiled 16 September 2014\\nAppeal and Error\\u2014appeal after guilty plea\\u2014driving while impaired\\u2014no statutory right\\nDefendant\\u2019s appeal from judgment entered after pleading guilty to driving while impaired was dismissed because she had no statutory right to appeal.\\nAppeal by defendant from judgment entered 25 February 2013 by Judge Sharon Tracey Barrett in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 August 2014.\\nAttorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.\\nRudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant.\", \"word_count\": \"1081\", \"char_count\": \"6490\", \"text\": \"ELMORE, Judge.\\nDefendant appeals from judgment entered 25 February 2013 after she pled guilty to driving while impaired (DWI). The trial court sentenced defendant to imprisonment for 12 months minimum, 12 months maximum, which was suspended for 18 months on various conditions including an active sentence of 14 days imprisonment. After careful consideration, we dismiss defendant's appeal.\\nI. Facts\\nOn 25 October 2011, Susan Denise Shaw (defendant) was convicted of misdemeanor DWI in Mecklenburg County District Court. She appealed the conviction to Mecklenburg County Superior Court and pled guilty to the same charge on 25 February 2013. The trial court found one grossly aggravating factor, a prior DWI conviction within seven years before the current conviction's offense date, and imposed a Level Two punishment. Defendant timely appeals to this Court.\\nII. Analysis\\na.) Right to Appeal\\nThe State argues for this Court to dismiss defendant's appeal because defendant has no statutory right to appeal. We agree.\\nN.C. Gen. Stat. \\u00a7 15A-1444(e) (2013), in relevant part, states:\\nExcept as provided in subsections (al) and (a2) of this section... the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for review by writ of certiorari.\\nThus, a defendant can appeal as a matter of statutory right pursuant. to a guilty plea, in pertinent part, if she satisfies either N.C. Gen. Stat. \\u00a7 15A-1444 (al) or (a2). Under subsection (al):\\nA defendant who has been found guilty, or entered a plea of guilty or no contest to a felony, is entitled to appeal as a matter of right the issue of whether his or her sentence is supported by evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record or conviction level and class of offense. Otherwise, the defendant is not entitled to appeal this issue as a matter of right but may petition the appellate division for review of this issue by writ of certiorari.\\nN.C. Gen. Stat. \\u00a7 15A-1444(al) (2013).\\nThe provision of (al) does not apply to the case at bar because defendant did not enter a plea of guilty to a felony. See id. Moreover, defendant's argument on appeal solely relates to the State's failure to give timely notice of its intent to seek a grossly aggravating factor at sentencing, not whether her sentence was supported by evidence introduced at the sentencing hearing. We also note that while defendant requests, in the alternative, that we \\\"review the case under [our] cer-tiorari jurisdiction[,]\\\" we do not have the authority to do so under these circumstances. See N.C. R. App. R 21(a)(1) (providing that this Court may issue a writ of certiorari to \\\"permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action, or when no right of appeal from an interlocutory order exists, or for review . of an order of the trial court denying a motion for appropriate relief'). Even if we had such authority, defendant nevertheless fails to satisfy the filing and content requirements of a petition for writ of certiorari pursuant to Appellate Rule 21(c). See N.C. R. App. P. 21(c).\\nUnder subsection (a2), the specific enumerated statutory avenues of appeal fall under Article 81B (Structured Sentencing), which is expressly inapplicable to a defendant convicted of DWI. See N.C. Gen. Stat. \\u00a7 15A-1444(a2); see also N.C. Gen. Stat. \\u00a7 15A-1340.10 (2013) (\\\"[Article 81B] applies to criminal offenses in North Carolina, other than impaired driving under G.S. 20-138.1[.]\\\") (emphasis added).\\nDefendant cites State v. Parisi in support of her assertion that she has a statutory right to appeal her DWI guilty plea. 135 N.C. App. 222, 519 S.E.2d 531 (1999). We are unpersuaded. In Parisi, the defendant pled guilty to DWI in superior court, and the sentencing judge determined that the defendant's prior conviction for \\\"driving while ability impaired\\\" in New York constituted a grossly aggravating factor. Id. at 222, 519 S.E.2d at 532. Defendant appealed, and this Court ruled on the merits of the defendant's argument. Id. at 223, 519 S.E.2d at 532. Unlike the case at bar, there is no indication that the State raised the issue of the defendant's statutory right to appeal through a motion to dismiss, and the Parisi court's opinion indicates that it did not consider or rule on that issue. This Court only addressed whether the prior New York conviction was a grossly aggravating factor. Id. at 223-27, 519 S.E.2d at 532-34.\\nHowever, in State v. Absher, our Supreme Court addressed the very issue presented to us in this appeal. 329 N.C. 264, 265, 404 S.E.2d 848, 849 (1991). In Absher, the defendant pled guilty to DWI in superior court, and he attempted to appeal the sentencing court's judgment to this Court. Id. at 265, 404 S.E.2d at 849. The State filed a motion to dismiss on appeal, arguing that the defendant \\\"had no right to appellate review from the judgment and sentence imposed pursuant to his plea of guilty.\\\" Id. Our Supreme Court ruled that dismissal of the defendant's appeal was necessary because \\\"[n]one of the exceptions mentioned in [N.C. Gen. Stat. \\u00a7 15A-1444(e)] apply in this case, and defendant is therefore not entitled to appeal as a matter of right from the judgment entered on his plea of guilty.\\\" Id. Similarly, no provision in N.C. Gen. Stat. \\u00a7 15A-1444(e) gives defendant in this case a statutory right to appeal. Thus, we dismiss defendant's appeal.\\nIII. Conclusion\\nIn sum, we dismiss the appeal because defendant does not have a statutory right to appeal.\\nDismissed.\\nJudges CALABRIA and STEPHENS concur.\"}" \ No newline at end of file diff --git a/nc/12209588.json b/nc/12209588.json new file mode 100644 index 0000000000000000000000000000000000000000..e3e036b10193b28cbe8c437265d452b85435e48b --- /dev/null +++ b/nc/12209588.json @@ -0,0 +1 @@ +"{\"id\": \"12209588\", \"name\": \"State v. Donald Jay Young\", \"name_abbreviation\": \"State v. Young\", \"decision_date\": \"2015-12-15\", \"docket_number\": \"468P13-3\", \"first_page\": \"606\", \"last_page\": \"606\", \"citations\": \"368 N.C. 606\", \"volume\": \"368\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:31:27.241694+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Donald Jay Young\", \"head_matter\": \"468P13-3\\nState v. Donald Jay Young\", \"word_count\": \"28\", \"char_count\": \"155\", \"text\": \"1. Def's Pro Se Motion for PDR (COAP15-745)\\n1. Dismissed\\n2. Def's Pro Se Motion to Appoint Counsel\\n2. Dismissed as moot\"}" \ No newline at end of file diff --git a/nc/12639556.json b/nc/12639556.json new file mode 100644 index 0000000000000000000000000000000000000000..ebe62df9f97300e78af2e8bddd3a1057cb752d7d --- /dev/null +++ b/nc/12639556.json @@ -0,0 +1 @@ +"{\"id\": \"12639556\", \"name\": \"STATE of North Carolina v. Ernest Lee Junior PETTIS.\", \"name_abbreviation\": \"State v. Pettis\", \"decision_date\": \"2007-09-18\", \"docket_number\": \"No. COA06-1380.\", \"first_page\": \"231\", \"last_page\": \"235\", \"citations\": \"651 S.E.2d 231\", \"volume\": \"651\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Court of Appeals of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of North Carolina\\nv.\\nErnest Lee Junior PETTIS.\", \"head_matter\": \"STATE of North Carolina\\nv.\\nErnest Lee Junior PETTIS.\\nNo. COA06-1380.\\nCourt of Appeals of North Carolina.\\nSeptember 18, 2007.\\nAppeal by defendant from judgment entered 28 February 2006 by Judge Nathaniel J. Poovey in Cleveland County Superior Court. Heard in the Court of Appeals 20 August 2007.\\nAttorney General Roy Cooper, by Assistant Attorney General Amy C. Kunstling, for the State.\\nRudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., Chapel Hill, for defendant-appellant.\", \"word_count\": \"2377\", \"char_count\": \"14310\", \"text\": \"McCULLOUGH, Judge.\\nDefendant appeals a judgment entered after a jury verdict of guilty of two counts of statutory rape, one count of second-degree rape and one count of taking indecent liberties with a child. We determine there was no prejudicial error.\\nFACTS\\nErnest Lee Junior Pettis (\\\"defendant\\\") was indicted for two counts of statutory rape, one count of second-degree rape, and one count of taking indecent liberties with a child. The State presented evidence at trial which tended to show the following:\\nA.W. was born on 1 June 1990. In December 2003, she was living at the Above and Beyond group home in Kings Mountain. Above and Beyond is a Level III facility that provides twenty-four-hour supervision.\\nIn December 2003, A.W. ran away from the group home and encountered defendant. Defendant told her to follow him, which she did. They went into the woods. After they had been talking in the woods for awhile, a man named Flinto picked up A.W. and defendant and took them to his house. At Flinto's house, A.W. had sex with Flinto because defendant told her that in order to stay at Flinto's house, A.W. had to have sex with Flinto.\\nFrom Flinto's house, A.W. and defendant went to Nancy Gladden's house, where they stayed for a couple of days. A.W. told defendant she was in the custody of DSS. She also told him she was fifteen or sixteen. A.W. testified that defendant told her he had a child her age. She also testified that defendant told her he was \\\"twenty-something.\\\" A.W. and defendant had sex at Ms. Gladdens' house. A.W. estimated that she and defendant had sex there four to ten times. Defendant did not wear a condom. The police located A.W. at Ms. Gladden's home. Defendant, who hid in the basement, had told A.W. not to mention anything about him.\\nWhen the police returned A.W. to the group home, A.W. said she had been raped. A.W. testified at trial that she had sex with defendant because she wanted to, and defendant did not force her to have sex with him.\\nA.W. was taken to the Kings Mountain Hospital's emergency room for a rape kit exam. Nurse Audrey Baker examined A.W. A.W. told Nurse Baker she had run away from the group home and met a person she did not know. A.W. said she was taken to one place in Bessemer City and raped and then taken to another place in Kings Mountain and raped repeatedly over several days. Nurse Baker observed that A.W. had a brownish-yellowish bruise on her left breast. A.W.'s genital, vaginal, and rectal exam results were normal.\\nHope Dorsey worked at the group home the night A.W. ran away. Ms. Dorsey testified that when she last saw A.W., A.W. was wearing gray jogging pants, a jacket, and shoes. A.W. was wearing a different outfit when the police brought her back to the group home. Kings Mountain police officers went to Nancy Gladden's house. Ms. Gladden consented to a search of the house. Captain Derek Johnson found a pair of gray jogging pants in the washing machine. There was no water in the washing machine, and the pants were not wet. Ms. Dorsey recognized the pants as being the pair A.W. was wearing when Ms. Dorsey last saw her before A.W. ran away. The gray pants were sent to the SBI lab for testing. Special Agent Jed Taub, who was received without objection as an expert in forensic serology, forensic DNA analysis, and forensic biology, testified that he found spermatozoa and semen and epithelial cells on the crotch of the pants. This was consistent with being vaginal drainage of a mixture of vaginal fluid and spermatozoa and semen. The predominant DNA profile obtained from the cutting from the crotch of the pants matched defendant's DNA profile.\\nA.W. identified defendant from a photo array, and subsequently, defendant was arrested. As part of the booking process, defendant told the arresting officer that his date of birth was 1 February 1969 and he was thirty-four years old.\\nWilliam Boyd, who was born on 21 January 1959, testified that he goes by the name Flinto. Mr. Boyd said he had never seen A.W. prior to court, and he denied having sex with her. Mr. Boyd testified that defendant \\\"might have brought a young lady over to the house.\\\" He said defendant and the girl were at his house for a few hours and were hugging. He said he then drove them to Monroe Avenue.\\nThe jury found defendant guilty of two counts of statutory rape, one count of second-degree rape, and one count of taking indecent liberties with a child. Defendant appeals.\\nI.\\nDefendant contends the trial court erred in denying his requested instruction on the offense of sexual battery because sexual battery is a lesser included offense of second-degree rape. We disagree.\\nThe North Carolina Supreme Court has defined what a lesser included offense is as follows:\\n[T]he definitions accorded the crimes determine whether one offense is a lesser included offense of another crime. In other words, all of the essential elements of the lesser crime must also be essential elements included in the greater crime. If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense.\\nState v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 378-79 (1982) (citation omitted), overruled in part on other grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993).\\nWe determine the offense of sexual battery under N.C. Gen.Stat. \\u00a7 14-27.5A(a)(2) (2005), is not a lesser included offense of second-degree rape under N.C. Gen.Stat. \\u00a7 14-27.3(a)(2) (2005). Second-degree rape under N.C. Gen.Stat. \\u00a7 14-27.3(a)(2) provides:\\n(a) A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:\\n.\\n(2) Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally disabled, mentally incapacitated, or physically helpless.\\nId. The sexual battery statute provides, in pertinent part:\\n(a) A person is guilty of sexual battery if the person, for the purpose of sexual arousal, sexual gratification, or sexual abuse, engages in sexual contact with another person:\\n.\\n(2) Who is mentally disabled, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know that the other person is mentally disabled, mentally incapacitated, or physically helpless.\\nN.C. Gen.Stat. \\u00a7 14-27.5A(a)(2) (2005). Therefore, the offense of sexual battery under N.C. Gen.Stat. \\u00a7 14-27.5A(a)(2) has a purpose element, requiring the act be completed for the purpose of sexual arousal, sexual gratification, or sexual abuse that is not an element of second-degree rape under N.C. Gen.Stat. \\u00a7 14-27.3(a)(2). Accordingly, sexual battery under N.C. Gen.Stat. \\u00a7 14-27.5A(a)(2) is not a lesser included offense of second-degree rape under N.C. Gen.Stat. \\u00a7 14-27.3(a)(2) and we disagree with defendant.\\nII.\\nDefendant contends the trial court erred in denying his requested instruction on the offense of assault on a female because assault on a female is a lesser included offense of statutory rape. We disagree.\\nAs explained above, \\\"[i]f the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense.\\\" Weaver, 306 N.C. at 635, 295 S.E.2d at 379. The crime of assault on a female under N.C. Gen.Stat. \\u00a7 14-33(c)(2) (2005) has essential elements that are not covered by the crime of statutory rape under N.C. Gen.Stat. \\u00a7 14-27.7A(a) (2005). First, the crime of assault on a female requires proof of an assault, N.C. Gen. Stat. \\u00a7 14-33(c)(2), whereas statutory rape does not require proof of an assault. N.C. Gen.Stat. \\u00a7 14-27.7A(a). Second, the crime of assault on a female requires proof that the defendant is a male, N.C. Gen.Stat. \\u00a7 14-33(c)(2), which the crime of statutory rape does not require. N.C. Gen.Stat. \\u00a7 14-27.7A(a). Accordingly, we disagree with defendant.\\nIII.\\nDefendant contends the trial court erred by admitting the testimony of an SBI agent regarding the DNA examination and report of a non-testifying SBI agent in violation of defendant's constitutional right to confrontation and the rules of evidence. We disagree.\\nWith regard to the DNA report, defense counsel was afforded the opportunity to formally object to the jury receiving the report during deliberations. The trial court asked defendant's counsel whether he wished to be heard on the matter. Not only did defense counsel fail to object to the jury receiving this document, he consented. The following exchange occurred:\\n[DEFENSE COUNSEL]: I don't know if they just want the specific DNA report o[r] if they want the other laboratory report. I would continue [sic] to the Court to send them both back.\\nTHE COURT: Do ya'll have any objections to sending all the exhibits back?\\n[PROSECUTOR]: No, Sir.\\n.\\n[DEFENSE COUNSEL]: I don't have any objection. If [the prosecutor] and I could just go through those documents, just very quickly make sure that we think everything is in there that is a document.\\nDefense counsel failed to object and his argument has not been preserved on appeal. N.C. R.App. P. 10(b)(1) (2007). Further, defense counsel did not assign error in his appellate brief to the jury receiving the DNA report during deliberations. N.C. R.App. P. 10(a). This assignment of error is dismissed.\\nAt trial, SBI Agent David Freeman testified about a DNA analysis that was performed by Agent Jenny Elwell on a cutting taken from the gray pants recovered from Ms. Gladden's house. Agent Elwell did not testify at trial because she was in Seattle, Washington, attending a conference. Agent Freeman's opinion was based on Agent Elwell's report and notes. Defendant objected at trial to Agent Freeman's testimony citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Defendant stated that the testimony violated his Sixth Amendment Confrontation Clause rights, as well as N.C. Gen.Stat. \\u00a7 8C-1, Rules 702 and 703. The trial court overruled defendant's objection. On appeal, defendant contends that Agent Freeman's testimony violated his Confrontation Clause rights and was inadmissible hearsay.\\nWe determine defendant's Confrontation Clause rights were not violated. \\\"[I]t is well established [that there is no violation of a defendant's right of confrontation under the rationale of Crawford when] an expert . base[s] an opinion on tests performed by others in the field and [d]efendant was given an opportunity to cross-examine [the testifying expert] on the basis of his opinion[.]\\\"\\nState v. Delaney, 171 N.C.App. 141, 144, 613 S.E.2d 699, 701 (2005). Although the State did not formally tender Agent Freeman as an expert witness, he can still testify as an expert. See State v. White, 340 N.C. 264, 293-94, 457 S.E.2d 841, 858 (\\\"While the better practice may be to make a formal tender of a witness as an expert, such a tender is not required.\\\"), cert. denied, 516 U.S. 994, 116 S.Ct. 530, 133 L.Ed.2d 436 (1995). Accordingly, we disagree with defendant.\\nIV.\\nDefendant contends the trial court erred in overruling his objection to his statement about his age made during a custodial interrogation without the benefit of Miranda warnings, in violation of his constitutional right to be free from self-incrimination. We disagree.\\nAt the time of defendant's arrest, Officer K.L. Putnam of the Kings Mountain Police Department asked defendant questions, including what defendant's date of birth was, as part of the booking process. Defendant objected at trial to allowing Officer Putnam to testify what defendant said his date of birth was, arguing that the statement was obtained in violation of his Miranda rights and should therefore be suppressed. The trial court overruled this objection and denied the motion to suppress. On appeal, defendant challenges this ruling.\\nAfter reviewing the record and transcript, we determine that any error by the trial court was harmless beyond a reasonable doubt. N.C. Gen.Stat. \\u00a7 15A-1443(b) (2005). Defendant's mother testified at trial that she gave birth to defendant on 1 February 1969. Therefore, even if Officer Putnam's testimony was completely disregarded, there was other evidence of defendant's date of birth. Accordingly, we disagree with defendant.\\nV.\\nDefendant contends the trial court's jury instructions failed to ensure that the jury's verdicts were unanimous. We disagree.\\nIn determining whether a defendant has been unanimously convicted by a jury, our courts have looked at many factors including: (1) whether defendant raised an objection at trial regarding unanimity; (2) whether the jury was instructed on all issues, including unanimity; (3) whether separate verdict sheets were submitted to the jury for each charge; (4) the length of time the jury deliberated and reached a decision on all counts submitted to it; (5) whether the record reflected any confusion or questions as to jurors' duty in the trial; and (6) whether, if polled, each juror individually affirmed that he or she had found defendant guilty in each individual case file number. See State v. Lawrence, 360 N.C. 368, 376, 627 S.E.2d 609, 613 (2006).\\nHere, we determine there was no problem with the unanimity of the jury's verdicts. The jury was instructed on all the issues, including unanimity. The trial court states that the jury's verdicts must be unanimous by stating, \\\"You may not return a verdict until all 12 jurors agree unanimously.\\\" Separate verdict sheets were submitted for each charge. In addition, two verdict sheets were used for the two statutory rape charges and were differentiated by the date of the alleged offense. Further, the record does not reflect that the jury was confused. Accordingly, we disagree with defendant.\\nNo prejudicial error.\\nChief Judge MARTIN and Judge TYSON concur.\"}" \ No newline at end of file diff --git a/nc/12641440.json b/nc/12641440.json new file mode 100644 index 0000000000000000000000000000000000000000..3297d358b9341c87cff1e194988265e74c0045b9 --- /dev/null +++ b/nc/12641440.json @@ -0,0 +1 @@ +"{\"id\": \"12641440\", \"name\": \"In the Matter of A.T.\", \"name_abbreviation\": \"In re A.T.\", \"decision_date\": \"2008-07-15\", \"docket_number\": \"No. COA08-223.\", \"first_page\": \"917\", \"last_page\": \"920\", \"citations\": \"662 S.E.2d 917\", \"volume\": \"662\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Court of Appeals of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-27T21:05:26.210796+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"In the Matter of A.T.\", \"head_matter\": \"In the Matter of A.T.\\nNo. COA08-223.\\nCourt of Appeals of North Carolina.\\nJuly 15, 2008.\\nAppeal by Petitioner from order entered 4 January 2008 by Judge Lisa V. Menefee in Forsyth County District Court. Heard in the Court of Appeals 11 June 2008.\\nTheresa A. Boucher, Assistant Forsyth County Attorney, for Petitioner-Appellant Forsyth County Department of Social Services.\\nWomble Carlyle Sandridge & Rice, by Andrew L. Fitzgerald, Winston-Salem, for Guardian ad Litem-appellee.\", \"word_count\": \"1554\", \"char_count\": \"9404\", \"text\": \"ARROWOOD, Judge.\\nPetitioner-appellant Forsyth County Department of Social Services (DSS) appeals from an order denying its motion for review of a nonsecure custody order. We dismiss the appeal.\\nThe pertinent history of this case is summarized as follows: In March 2006 DSS substantiated a report of neglect of a female child, A.T. On 3 July 2007, more than a year later, DSS filed a petition alleging that A.T. was neglected. In an attachment to the petition, DSS informed the trial court that since 2 March 2006 A.T. had \\\"been in a Kinship placement\\\" with her mother's ex-husband and the ex-husband's wife, \\\"K.C. and B.F.\\\" The court conducted a nonsecure custody hearing on 9 July 2007, and entered a written order on 18 September 2007. The court ordered, inter alia, that A.T.'s custody \\\"shall remain with [DSS]\\\" and that \\\"foster care board rate shall be paid to [K.C. and B.F.] effective March 2, 2006.\\\" A.T. was adjudicated neglected on 10 August 2007, and a written order was entered 25 September 2007. The trial court ordered that K.C. and B.F. continue to \\\"receive foster care Board Rate\\\" from DSS. Following a review hearing 5 October 2007, the court ordered A.T.'s custody to remain with DSS.\\nThe record shows that DSS did not object to the court's 9 July 2006 order that it pay foster care board to K.C. and B.F., and that it made no attempt to appeal either the nonsecure custody order, the adjudication order, or the review order. However, on 22 October 2007 DSS filed a \\\"Motion for Review\\\" seeking review of \\\"the foster care board rate provisions\\\" of the Court's nonsecure custody order. DSS asserted in its motion that it was \\\"not appropriate\\\" that the trial court had ordered DSS to pay foster care board rate retroactive to 2 March 2006, because A.T. \\\"has only been in the custody and placement responsibility of [DSS] since July 3, 2007.\\\" The trial court conducted a hearing on DSS's motion on 2 November 2007. On 4 January 2008 the trial court entered an order denying DSS's motion, from which DSS has appealed.\\nThe dispositive issue is whether Appellant's appeal is properly before the Court. We conclude that it is not, and that Appellant has no right of direct appeal from either the nonsecure custody order or from the trial court's ruling on DSS's motion for review of the nonsecure custody order.\\nAppeal in juvenile cases is governed by N.C. Gen.Stat. \\u00a7 7B-1001 (2007), which provides in pertinent part that:\\n(a) In a juvenile matter . appeal of a final order of the court . shall be made directly to the Court of Appeals. Only the following juvenile matters may be appealed:\\n(1) Any order finding absence of jurisdiction.\\n(2) Any order . which in effect determines the action and prevents a judgment from which appeal might be taken.\\n(3) Any initial order of disposition and the adjudication order upon which it is based.\\n(4) Any order, other than a nonsecure custody order, that changes legal custody of a juvenile.\\n(5) An order entered under [\\u00a7] 7B-507(c) .\\n(6) Any order that terminates parental rights or denies a [termination] petition[.]\\n(emphasis added).\\nIn the instant case, DSS appeals from a motion for review of the board payments ordered in a nonsecure custody order. Nonsecure custody orders are expressly excluded from the statutory list of appealable juvenile orders, and the motion for review is not a \\\"final order\\\" as defined in N.C. Gen. Stat. \\u00a7 7B-1001. Accordingly, Appellant has no right of appeal from the trial court's ruling on its motion. Appellant, however, argues that it has a right to appeal under N.C. Gen.Stat. \\u00a7 7B-1001(a)(1), which permits appeal from \\\"[a]ny order finding absence of jurisdiction.\\\" We disagree.\\nFirst, the term \\\"jurisdiction,\\\" used in reference to the trial court's order for foster care board payments, is a misnomer. \\\"`Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it[,'] .' [and] is conferred upon the courts by either the North Carolina Constitution or by statute.'\\\" In re McKinney, 158 N.C.App. 441, 443, 581 S.E.2d 793, 795 (2003) (quoting Haker-Volkening v. Haker, 143 N.C.App. 688, 693, 547 S.E.2d 127, 130 (2001) and Harris v. Pembaur, 84 N.C.App. 666, 667, 353 S.E.2d 673, 675 (1987)). \\\"Jurisdiction is the power of a court to decide a case on its merits; it is the power of a court to inquire into the facts, to apply the law, and to enter and enforce judgment. Jurisdiction presupposes the existence of a duly constituted court with control over a subject matter which comes within the classification limits designated by the constitutional authority or law under which the court is established and functions.\\\" Jones v. Brinson, 238 N.C. 506, 509, 78 S.E.2d 334, 337 (1953) (citations omitted).\\nUnder N.C. Gen.Stat. \\u00a7 7B-200(a) (2007) the trial court \\\"has exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected, or dependent.\\\" Nonsecure custody hearings are governed by N.C. Gen.Stat. \\u00a7 7B-506 (2007), which directs the trial court to conduct hearings on the need for continued nonsecure custody in certain circumstances. Under Section 7B-506(d), if the trial court determines that the juvenile meets the criteria for nonsecure custody, \\\"the court shall issue an order to that effect . in writing . signed and entered within 30 days of the completion of the hearing.\\\" Clearly, the trial court had jurisdiction over the nonsecure custody hearing and entry of a nonsecure custody order. Under N.C. Gen.Stat. \\u00a7 7B-1000(b) (2007), if the trial court \\\"finds the juvenile to be abused, neglected, or dependent, the jurisdiction of the court to modify any order or disposition made in the case shall continue during the minority of the juvenile[.]\\\" Accordingly, the trial court had jurisdiction to conduct a hearing and to rule on Appellant's motion for review. We conclude that the trial court had jurisdiction over the proceedings and orders at issue in this case.\\nWe further conclude that the issue raised by Appellant is not jurisdictional in nature. Appellant argues that the trial court erred by including in its nonsecure custody order a provision requiring DSS to pay foster care board retroactively to a date before the hearing. Assuming, arguendo, that the trial court erred in the scope of its order for board payments to K.C. and B.F., this does not necessarily deprive the court of jurisdiction. See, e.g., In re A.R.G., 361 N.C. 392, 398, 646 S.E.2d 349, 353 (2007) (\\\"absence of the juvenile's address on the petition did not prevent the trial court from exercising subject matter jurisdiction over this juvenile action\\\"); In re C.L.C., 171 N.C.App. 438, 443, 615 S.E.2d 704, 707 (2005), aff'd per curiam, 360 N.C. 475, 628 S.E.2d 760 (2006) (\\\"time limitations in the Juvenile Code are not jurisdictional\\\"); Parslow v. Parslow, 47 N.C.App. 84, 89-90, 266 S.E.2d 746, 750 (1980) (case tried in district court; Court holds that, although \\\"appropriate procedure\\\" would have been to try case in superior court, \\\"the defect is not jurisdictional\\\") (citations omitted). In the instant case, Appellant fails to articulate why an error in the award of foster care board fees would deprive the trial court of jurisdiction over the case.\\nAppellant also asserts a right to appeal based on the trial court's findings of fact numbers seven (7) and nine (9):\\n7. The Court recognizes now that the Juvenile Court had no jurisdiction regarding the care, custody or provision of services for [A.T.] prior to July 3, 2007.\\n9. Although the Court had no jurisdiction, the Court continues the July 9, 2007 Court Order as previously entered.\\nAppellant contends that the presence of these findings compels a conclusion that this is an order \\\"finding absence of jurisdiction\\\" and therefore subject to appeal. We disagree.\\nThe trial court did not rule that it lacked jurisdiction to decide DSS's motion for review. Instead, the court addressed the merits of DSS's motion for review and issued an order denying the requested relief. Consequently, the order is not one \\\"finding absence of jurisdiction.\\\" Further, it is not transformed into such an order merely because the trial court questioned whether it had the authority (characterized in the order as its \\\"jurisdiction\\\") to order foster care board rates in a nonsecure custody order that the court entered months earlier. We conclude that the court's ruling on Appellant's motion is not subject to immediate review as an order \\\"finding absence of jurisdiction\\\" in the meaning of N.C. Gen.Stat. \\u00a7 7B-1001(1).\\nFor the reasons discussed above, we conclude that the Appellant's appeal must be\\nDismissed.\\nChief Judge MARTIN and Judge ELMORE concur.\\nTo preserve the privacy of the minor child, we refer to her in this opinion by the initials \\\"A.T.\\\"\\nTo preserve the privacy of the individuals involved, we refer to A.T.'s guardians by the initials K.C. and B.F.\"}" \ No newline at end of file diff --git a/nc/12643411.json b/nc/12643411.json new file mode 100644 index 0000000000000000000000000000000000000000..b168871c88f14818407b454d21f62861b0d00382 --- /dev/null +++ b/nc/12643411.json @@ -0,0 +1 @@ +"{\"id\": \"12643411\", \"name\": \"James R. CRIDER, Sr. and wife, Kathy Crider v. John Vincent CATTIE, M.D.\", \"name_abbreviation\": \"Crider v. Cattie\", \"decision_date\": \"2015-08-20\", \"docket_number\": \"No. 197P15.\", \"first_page\": \"854\", \"last_page\": \"855\", \"citations\": \"775 S.E.2d 854\", \"volume\": \"775\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-27T21:05:34.430118+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"James R. CRIDER, Sr. and wife, Kathy Crider\\nv.\\nJohn Vincent CATTIE, M.D.\", \"head_matter\": \"James R. CRIDER, Sr. and wife, Kathy Crider\\nv.\\nJohn Vincent CATTIE, M.D.\\nNo. 197P15.\\nSupreme Court of North Carolina.\\nAug. 20, 2015.\\nSteven C. Lawrence, Fayetteville, for Crider, James R. (Sr.), et al.\\nJeffery Kent Carpenter, for Crider, James R. (Sr.).\\nScott M. Stevenson, Charlotte, for Cattie, John Vincent (M.D.).\\nKaren H. Stiles, Charlotte, for Cattie, John Vincent (M.D.).\\nScott A. Hefner.\\nStacey E. Tally, Fayetteville, for Crider, James R. (Sr.).\\nJacob Stump, Charlotte, for Cattie, John Vincent (M.D.).\\nORDER\", \"word_count\": \"145\", \"char_count\": \"889\", \"text\": \"Upon consideration of the petition filed on the 11th of June 2015 by Plaintiffs in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals:\\n\\\"Denied by order of the Court in conference, this the 20th of August 2015.\\\"\"}" \ No newline at end of file diff --git a/nc/12643575.json b/nc/12643575.json new file mode 100644 index 0000000000000000000000000000000000000000..4ed38d3fb3271c9dd4314682e919b5a061eee1c3 --- /dev/null +++ b/nc/12643575.json @@ -0,0 +1 @@ +"{\"id\": \"12643575\", \"name\": \"STATE v. Napoleon Junior RANKIN.\", \"name_abbreviation\": \"State v. Rankin\", \"decision_date\": \"2015-08-20\", \"docket_number\": \"No. 40P15\\u20133.\", \"first_page\": \"212\", \"last_page\": \"212\", \"citations\": \"776 S.E.2d 212\", \"volume\": \"776\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-27T21:05:35.166695+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE\\nv.\\nNapoleon Junior RANKIN.\", \"head_matter\": \"STATE\\nv.\\nNapoleon Junior RANKIN.\\nNo. 40P15-3.\\nSupreme Court of North Carolina.\\nAug. 20, 2015.\\nCatherine F. Jordan, Assistant Attorney General, for State of North Carolina.\\nNapoleon J. Rankin, for Rankins, Napoleon Junior.\\nJ. Douglas Flenderson, District Attorney, for State of North Carolina.\\nOpinion\", \"word_count\": \"82\", \"char_count\": \"521\", \"text\": \"The following order has been entered on the motion filed on the 13th of July 2015 by Defendant for Ineffective Assistance of Counsel:\\n\\\"Motion Dismissed by order of the Court in conference, this the 20th of August 2015.\\\"\"}" \ No newline at end of file diff --git a/nc/12643909.json b/nc/12643909.json new file mode 100644 index 0000000000000000000000000000000000000000..db4f716cbed6ee2f88fdc5ea0eb5c72827200cf7 --- /dev/null +++ b/nc/12643909.json @@ -0,0 +1 @@ +"{\"id\": \"12643909\", \"name\": \"STATE v. Marvin Wade MILLSAPS.\", \"name_abbreviation\": \"State v. Millsaps\", \"decision_date\": \"2015-11-05\", \"docket_number\": \"No. 374P13\\u20135.\", \"first_page\": \"269\", \"last_page\": \"270\", \"citations\": \"778 S.E.2d 269\", \"volume\": \"778\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-27T21:05:36.574652+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE\\nv.\\nMarvin Wade MILLSAPS.\", \"head_matter\": \"STATE\\nv.\\nMarvin Wade MILLSAPS.\\nNo. 374P13-5.\\nSupreme Court of North Carolina.\\nNov. 5, 2015.\\nBarry H. Bloch, Assistant Attorney General, for State of North Carolina.\\nMarvin W. Millsaps, Norlina, for Millsaps, Marvin Wade.\\nSarah Kirkman, District Attorney, for State of North Carolina.\\nOpinion\", \"word_count\": \"85\", \"char_count\": \"540\", \"text\": \"The following order has been entered on the motion filed on the 27th of August 2015 by Defendant for Exculpatory Evidence Information Record:\\n\\\"Motion Dismissed by order of the Court in conference, this the 5th of November 2015.\\\"\\nErvin, J. recused.\"}" \ No newline at end of file diff --git a/nc/12644968.json b/nc/12644968.json new file mode 100644 index 0000000000000000000000000000000000000000..e832f574c4763f1f5c762d8a5bbdc6623998426e --- /dev/null +++ b/nc/12644968.json @@ -0,0 +1 @@ +"{\"id\": \"12644968\", \"name\": \"STATE of North Carolina v. Truman Calvin BOONE.\", \"name_abbreviation\": \"State v. Boone\", \"decision_date\": \"2016-03-17\", \"docket_number\": \"No. 382P93\\u20132.\", \"first_page\": \"165\", \"last_page\": \"165\", \"citations\": \"784 S.E.2d 165\", \"volume\": \"784\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-27T21:05:39.765550+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of North Carolina\\nv.\\nTruman Calvin BOONE.\", \"head_matter\": \"STATE of North Carolina\\nv.\\nTruman Calvin BOONE.\\nNo. 382P93-2.\\nSupreme Court of North Carolina.\\nMarch 17, 2016.\\nTruman Calvin Boone, for Boone, Truman Calvin.\\nJoseph L. Hyde, Assistant Attorney General, for State of North Carolina.\\nJ. Douglas Henderson, District Attorney, for State of North Carolina.\\nORDER\", \"word_count\": \"109\", \"char_count\": \"661\", \"text\": \"Upon consideration of the petition filed by Defendant on the 15th of January 2016 in this matter for a writ of certiorari to review the order of the Superior Court, Guilford County, the following order was entered and is hereby certified to the Superior Court of that County:\\n\\\"Dismissed by order of the Court in conference, this the 17th of March 2016.\\\"\"}" \ No newline at end of file diff --git a/nc/12646421.json b/nc/12646421.json new file mode 100644 index 0000000000000000000000000000000000000000..069a3f7b18b10536faf73d9bf8aade2efaefda36 --- /dev/null +++ b/nc/12646421.json @@ -0,0 +1 @@ +"{\"id\": \"12646421\", \"name\": \"In the MATTER OF the ESTATE OF Richard Dixon PEACOCK Date of Death: 12/19/2013\", \"name_abbreviation\": \"In re Estate of Peacock\", \"decision_date\": \"2016-09-22\", \"docket_number\": \"No. 276P16\", \"first_page\": \"227\", \"last_page\": \"227\", \"citations\": \"793 S.E.2d 227\", \"volume\": \"793\", \"reporter\": \"South Eastern Reporter 2d\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-09-08T21:16:17.237805+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"In the MATTER OF the ESTATE OF Richard Dixon PEACOCK Date of Death: 12/19/2013\", \"head_matter\": \"In the MATTER OF the ESTATE OF Richard Dixon PEACOCK Date of Death: 12/19/2013\\nNo. 276P16\\nSupreme Court of North Carolina.\\nSeptember 22, 2016\\nRegan H. Rozier, Attorney at Law, Wilmington, for Peacock, Bernadine.\\nG. Grady Richardson, Jr., Attorney at Law, for K.A.P. (Minor)\\nORDER\", \"word_count\": \"109\", \"char_count\": \"654\", \"text\": \"Upon consideration of the petition filed on the 26th of July 2016 by Respondent in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals:\\n\\\"Denied by order of the Court in conference, this the 22nd of September 2016.\\\"\"}" \ No newline at end of file diff --git a/nc/139615.json b/nc/139615.json new file mode 100644 index 0000000000000000000000000000000000000000..d466d295d3296468361f99d10392172bb76059f1 --- /dev/null +++ b/nc/139615.json @@ -0,0 +1 @@ +"{\"id\": \"139615\", \"name\": \"STATE v. CHEATHAM\", \"name_abbreviation\": \"State v. Cheatham\", \"decision_date\": \"1997-06-05\", \"docket_number\": \"No. 198P97\", \"first_page\": \"284\", \"last_page\": \"284\", \"citations\": \"346 N.C. 284\", \"volume\": \"346\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:22:44.209244+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. CHEATHAM\", \"head_matter\": \"STATE v. CHEATHAM\\nNo. 198P97\\nCase below: 125 N.C.App. 744\", \"word_count\": \"24\", \"char_count\": \"148\", \"text\": \"Petition by defendant for discretionary review pursuant to G.S. 7A-31 denied 5 June 1997.\"}" \ No newline at end of file diff --git a/nc/2083003.json b/nc/2083003.json new file mode 100644 index 0000000000000000000000000000000000000000..145669fb6a6a7a7b0af8ce6f0215da972eadaef0 --- /dev/null +++ b/nc/2083003.json @@ -0,0 +1 @@ +"{\"id\": \"2083003\", \"name\": \"JOHN HARRIS and others, against JOHN ROSS and others\", \"name_abbreviation\": \"Harris v. Ross\", \"decision_date\": \"1859-08\", \"docket_number\": \"\", \"first_page\": \"413\", \"last_page\": \"418\", \"citations\": \"4 Jones Eq. 413\", \"volume\": \"57\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:11:10.543433+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN HARRIS and others, against JOHN ROSS and others.\", \"head_matter\": \"JOHN HARRIS and others, against JOHN ROSS and others.\\nWhere one legatee can resort to two funds, and another to but one of them, the former shall not be allowed to resort, in the first instance, to that which is the sole reliance of the latter legatee.\\nA charge upon land by will, for the maintenance of one who is deaf,, lame and helpless, to begin immediately, and to continue during- the life of such beneficiary, is to be preferred to legacies of an ordinary character charged on the residue of the estate after the expiration of a life interest therein.\\nThere is no reason, generally, why land devised to several, burlhened with a charge for the maintenance of a person, shall not be sold for a division;\\u2014 but this must be done cum onere. Where, however, the maintenance of snc.ii person can bo had on the land itself, but, probably, cannot be secured' by a sale, a Count of Equity will only order it, experimentally, to ascertain bow the fact is.\\nCause removed from the Court of Equity of McDowell County-\\nLewis Harris made his will in Jnly, 1845, containing the following provisions:\\n\\u201cI give to my wife all my lands with all my stock of every kind, and all my farming tools, and household and kitchen furniture, to be fully possessed by her during her life, or widowhood. My daughter, Sarah, to have her maintenance off the land, during her natural life. I give to my two sons, Giles and John, three hundred dollars each; to be raised out of my estate at the death of my wife. I give to my grand-son, Joab Harris, sixty-five dollars, when he arrives at the age of twenty-one years. The balance of my estate, after the payment of my debts, to be equally divided between all my children.\\u201d He appointed his son John Harris and John Ross, executors; and the testator died shortly afterwards and both of the executors proved the will, and left the effects in the enjoyment of the widow, who lived on the land, and kept her daughter, Sarah, with her. She, Sarah, was almost entirety deaf, had but one hand, and being considerably advanced in years, was, therefore, unable to perform any labor, or earn any thing towards her maintenance. The widow died in March, 1856, and at her death, administration of her estate was granted to her son Giles, who took possession of her effects; and at the same time, Ross, as executor of the testator, took possession of such of the personal things originally belonging to the testator, as were left by the widow. Giles Harris had lived with his mother and sister on the land, and worked it so as to maintain them; and after the widow\\u2019s death, he and Sarah continued in the possession of the place, as before, for the purpose of maintaining Sarah.\\nThe bill is filed by John Harris and Joab Harris, and the other children of the testator, against Giles, Sarah, and John Ross, and seeks an account of the personal estate of the testator and intestate widow, and that the latter may be equally divided among all the children, who are her next of kin, and that the former may be applied to the satisfaction of the several pecuniary legacies to John, Giles, and Joab, if sufficient for that purpose, and praying for a sale of the land, which the bill alleges to be of the value of $2.500, and that out of the proceeds, a sufficient sum shall be set apart, in the first in stance, and invested so as to yield interest annually to an amount adequate to the comfortable maintenance of Sarah, and out of the residue, the legacies to the two sons and grandson, or any balance of them, satisfied, and the surplus divided among all the children, under the residuary clause.\\nThe answers of Eoss and Giles Harris, set out accounts of the personal estates of the testator and Mrs. Harris; and that of the latter and Sarah, state, that she is decrepid, and so infirm, as to be wholly unable to provide for herself, and was the peculiar object of the care of her parents \\u2014 that the purpose of her father, in charging her maintenance on his land, was to provide her with a home, and secure, certainly, the means of her subsistence by an income, issuing out of the land; that the profits of the land which is cultivated for her, by her brother Giles, is barely sufficient to afford her a scanty subsistence, and would not do that, if she were not saved the expense of hiring a house, by living in that on the land; that the whole value of the land does not exceed $1,000, and that it 'would not sell for that sum; and that the interest thereon, would not support her in her present condition, much less, would it be adequate, hereafter, as she is old, and her infirmities increase yearly, so that each succeeding year will probably add to the expense of her maintenance; and, therefore, she insists that the land ought not to be sold, as she is willing to take it as it is, in satisfaction of the charge of her maintenance.\\nTo facilitate the hearing, the parties consented to have certain inquiries made by the master, and he reported the nett balance of the testator\\u2019s personal estate to be $148.47, in the the hands of the executor, Eoss, and of Mrs. Harris\\u2019 estate to be $72.52, in the hands of the defendant, Giles Harris. He further reports, that it will require the sum of $80 a year to maintain Sarah, comfortably, and that the land would not sell for more than $1000, and that the interest thereon would not support her; but, that the use of the land and houses, if unsold, would afford her much more comfort, as a home.\\nNeither party excepted to the report, but the plaintiffs in sist that the master is mistaken in finding the value of the land, and say that they will make it bring much more.\\nGaither, for the plaintiff.\\nAvery, for the defendant.\", \"word_count\": \"2088\", \"char_count\": \"11397\", \"text\": \"Rukrin, J.\\nOf course, the small sum in the hands of Giles Harris, as administrator of his mother, is subject to distribution amongst her next of kin, and there is no reason why it should not be made immediately.\\nThe personal estate of the testator, Harris, in the hands of Ross, cannot, until after the sale of the land. It is, indeed, applicable to the legacies to the two sons, and the grandson, but it may not be in equal proportions. For the latter legacy is payable out of the personal estate only, while the other two are charged upon the whole estate, including the land.\\u2014 Neither is to be defeated, if there are funds for their satisfaction, and, as it is ascertained that the personalty is not sufficient, and that, if divided,pro rata, the grandson will lose the the larger part of what is given to him, the application must be deferred until it shall appear what the land will raise, clear of Sarah's incumbrance, as it may bring enough to allow a payment in full to the grandson out of the personal estate, and then leave a sum, with the residue of the personal estate, sufficient to pay the $300 to each of the sons. In the meanwhile, the parties may require Ross to bring the money into court, and have it invested at interest, until it shall be seen how it ought to be applied. This is upon the common doctrine that testators intend the payment of all their legacies, if there be funds, and that where one legatee can resort to two funds, he shall not resort to the one, in the first instance, to which alone the other can look, so as to exhaust it, and defeat the latter.\\n\\\"With respect to the principal question, arising out of the provision for the daughter, Sarah, it may be observed that it is assumed in the pleadings on both sides, that it is the preferable charge; and the Court considers that to be correct. That charge, attached to the land immediately upon the death of the testator, and came into enjoyment as against the mother, the tenant for life; she held subject to it, and the will continues it, during the daughter's life; consequently, it continues to exist in the same state against those who take after the mother. But it is nothing more than a charge. No estate in the land vested in her, nor any right to the possession against the heirs at law. It is clear, that the testator did not intend any thing of that kind; because he directs the $600 for his sons to be raised out of Ids estate at the death of Ids wife, and, therefore, he must have contemplated that a sale might then be necessary, notwithstanding the daughter might be living. All the perplexity in the case, arises, therefore, out of a doubt, whether a sale will insure a proper maintenance for the daughter and leave any thing for the heirs, or the two sons. If it will not, as the master finds, it is manifest, that a sale can do no good to any one; and, therefore, as the land is all she has to look to, and she is willing to occupy it for her charge, there ought not, in that case, to be a sale, but she ought to be left in the enjoyment, unless the residuary devisees prefer having it sold, and securing to her an annual sum for maintenance.\\u2014 That is not likely to take place, as she, and the defendant, Giles, are two of the devisees, and they are both opposed to the sale, at present. But, the other parties insist that the land will bring a sum sufficient to secure the sister's maintenance, \\u2014-discharge the pecuniary legacies, and leave a surplus; and they further insist, that the only way to determine that, is by a sale. The Court, therefore, though inclined to concur with the master, as to the arrangement, best for the family, is obliged to have regard to the rights of the legatee, John Harris, and of those entitled to the residue, so as to give them the opportunity of, at least, an experimental sale, whereby it can be seen whether it will duly secure the maintenance of Sarah, and at the same time, yield anything for the other parties. It must, therefore, be declared, that Sarah is now entitled to the sum of $80 annually, for her maintenance, and also, that she is entitled to have such further sum allowed her annually, as from time to time, from her increasing age and infirmities may be proper, with liberty to her to apply therefor. The sale will, therefore, be made on these terms: That the purchaser shall give bond and good security to pay into Court, on a certain day, annually, the sum of $80, for the use of Sarah during her life, and that the same shall also be a charge on the land, and that for tbe principal sum, which, at six per centum, will yield interest to the amount of $80, namely, the sum of $1333.33-J, the purchaser shall give bond and good security, payable upon the death of Sarah, and as a further security, that the title of tbe land be retained until the further order of the Court: and that for the residue of the price, over and above the sum of $1333.33i, the purchaser give bond and good security, payable at one and two years with interest from the first day of the next term of this Court, subject, when collected, to the future order of the Court, so that it may be applied, if need be, to enlarging the allowance to Sarah, or to the other purposes of tbe will as may be right. U nless the land should, therefore, bring at least $1650, it would not, in the opinion of the Court, yield an adequate security for the daughter's maintenance, and the sale ought not to be confirmed, but, she left in the occupation according to her offer; and, therefore, the master will not let a purchaser into possession at a less price than that sum, until he shall have reported the sale to the Court, and the further order of tbe Court thereon.\\nPer Curjam, Decree accordingly.\"}" \ No newline at end of file diff --git a/nc/220004.json b/nc/220004.json new file mode 100644 index 0000000000000000000000000000000000000000..ab55bf246d9961fae0265937dc0dbdb9d4bbf0a3 --- /dev/null +++ b/nc/220004.json @@ -0,0 +1 @@ +"{\"id\": \"220004\", \"name\": \"CONWAY v. YEOMANS\", \"name_abbreviation\": \"Conway v. Yeomans\", \"decision_date\": \"2002-03-06\", \"docket_number\": \"No. 20P02\", \"first_page\": \"284\", \"last_page\": \"284\", \"citations\": \"355 N.C. 284\", \"volume\": \"355\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:09:12.831807+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CONWAY v. YEOMANS\", \"head_matter\": \"CONWAY v. YEOMANS\\nNo. 20P02\\nCase below: 148 N.C. App. 214\", \"word_count\": \"48\", \"char_count\": \"291\", \"text\": \"Notice of appeal by plaintiff pro se pursuant to G.S. 7A-30 (substantial constitutional question) dismissed ex mero motu 6 March 2002. Petition by plaintiff pro se for discretionary review pursuant to G.S. 7A-31 denied 6 March 2002.\"}" \ No newline at end of file diff --git a/nc/220160.json b/nc/220160.json new file mode 100644 index 0000000000000000000000000000000000000000..5db926599445e6861d4706a054c386b03d07092f --- /dev/null +++ b/nc/220160.json @@ -0,0 +1 @@ +"{\"id\": \"220160\", \"name\": \"STORCH v. WINN-DIXIE CHARLOTTE, INC.\", \"name_abbreviation\": \"Storch v. Winn-Dixie Charlotte, Inc.\", \"decision_date\": \"2002-06-27\", \"docket_number\": \"No. 205P02\", \"first_page\": \"757\", \"last_page\": \"757\", \"citations\": \"355 N.C. 757\", \"volume\": \"355\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:09:12.831807+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STORCH v. WINN-DIXIE CHARLOTTE, INC.\", \"head_matter\": \"STORCH v. WINN-DIXIE CHARLOTTE, INC.\\nNo. 205P02\\nCase below: 149 N.C. App. 478\", \"word_count\": \"27\", \"char_count\": \"169\", \"text\": \"Petition by defendant for discretionary review pursuant to G.S. 7A-31 denied 27 June 2002.\"}" \ No newline at end of file diff --git a/nc/2217815.json b/nc/2217815.json new file mode 100644 index 0000000000000000000000000000000000000000..5ffb142d4132187e76e5af0d4b3bc91f1a4b96fa --- /dev/null +++ b/nc/2217815.json @@ -0,0 +1 @@ +"{\"id\": \"2217815\", \"name\": \"BENJAMIN W. BOBBITT v. S. PIERSON\", \"name_abbreviation\": \"Bobbitt v. Pierson\", \"decision_date\": \"1927-03-23\", \"docket_number\": \"\", \"first_page\": \"437\", \"last_page\": \"437\", \"citations\": \"193 N.C. 437\", \"volume\": \"193\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:00:49.279477+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"BENJAMIN W. BOBBITT v. S. PIERSON.\", \"head_matter\": \"BENJAMIN W. BOBBITT v. S. PIERSON.\\n(Filed 23 March, 1927.)\\nEstates \\u2014 Remainders\\u2014\\u201cIssue\\u201d\\u2014Children\\u2014Rule in Shelley\\u2019s Case.\\nA devise to B. for his use or benefit as long as he lives, and at the time of his death to go to his issue: Hel\\u00e9, the word \\u201cissue\\u201d is construed as children who take in remainder by purchase, the rule in Shelley\\u2019s case not applying.\\nAppeal by both parties from Calvert, J., at November Term, 1926, \\u25a0 of Halifax.\\nAffirmed.\\nThe court was of opinion, upon the statement of agreed facts submitted by the parties to this controversy without action, O. S., 626, that Benjamin W. Bobbitt is not seized of an estate in fee simple in and to the lot of land, which he has contracted to convey to S. Pierson, but that, he is seized only of an estate for his life in and to said lot, with remainder to his children.\\nProm judgment in accordance with this opinion, both parties appealed to the Supreme Court.\\nDunn & Johnson for plaintiff.\\nNo counsel for defendant.\", \"word_count\": \"382\", \"char_count\": \"2088\", \"text\": \"Per Curiam.\\nBenjamin ~W. Bobbitt claims title to the lot of land which he has contracted to convey to S. Pierson, under the will of his grandfather, Walter Y. Bobbitt. The said lot is therein devised to Benjamin W. Bobbitt, \\\"for his own use and benefit as long as he lives, and at the time of his death, to go to his issue.\\\"\\nWe concur in the opinion of the court below that Benjamin W. Bobbitt is not seized, by virtue of this devise, of an estate in fee simple in the lot of land which he has contracted to convey to defendant. He has an estate therein only for his life, with remainder to his issue. The word \\\"issues,\\\" appearing in this will, must, in accordance with authoritative decisions of this Court, be construed as meaning children. Etheridge v. Realty Co., 179 N. C., 407; Ford v. McBrayer, 171 N. C., 420; Faison v. Odom, 144 N. C., 108.\\nThe rule in Shelley's case does not apply. The children of Benjamin W. Bobbitt, as his issue, take the remainder, after his death, as purchasers. Benjamin W. Bobbitt cannot convey to S. Pierson a fee-simple estate in and to the lot of land. The judgment is\\nAffirmed.\"}" \ No newline at end of file diff --git a/nc/2488682.json b/nc/2488682.json new file mode 100644 index 0000000000000000000000000000000000000000..c9dc7ece8af02adb54e9e5672c34c8b268763b5c --- /dev/null +++ b/nc/2488682.json @@ -0,0 +1 @@ +"{\"id\": \"2488682\", \"name\": \"STATE v. CANNON\", \"name_abbreviation\": \"State v. Cannon\", \"decision_date\": \"1989-05-04\", \"docket_number\": \"No. 113P89\", \"first_page\": \"433\", \"last_page\": \"433\", \"citations\": \"324 N.C. 433\", \"volume\": \"324\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:18:20.593431+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. CANNON\", \"head_matter\": \"STATE v. CANNON\\nNo. 113P89.\\nCase below: 92 N.C. App. 383.\", \"word_count\": \"29\", \"char_count\": \"161\", \"text\": \"Petition by defendant for writ of certiorari to the North Carolina Court of Appeals denied 4 May 1989.\"}" \ No newline at end of file diff --git a/nc/3736422.json b/nc/3736422.json new file mode 100644 index 0000000000000000000000000000000000000000..e4424ecf60d2edad405d7482310313e855b464eb --- /dev/null +++ b/nc/3736422.json @@ -0,0 +1 @@ +"{\"id\": \"3736422\", \"name\": \"STATE OF NORTH CAROLINA v. CHAUMON MARTE WEBB\", \"name_abbreviation\": \"State v. Webb\", \"decision_date\": \"2006-12-19\", \"docket_number\": \"No. 450P05\", \"first_page\": \"162\", \"last_page\": \"162\", \"citations\": \"361 N.C. 162\", \"volume\": \"361\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:03:17.308683+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF NORTH CAROLINA v. CHAUMON MARTE WEBB\", \"head_matter\": \"STATE OF NORTH CAROLINA v. CHAUMON MARTE WEBB\\nNo. 450P05\", \"word_count\": \"112\", \"char_count\": \"699\", \"text\": \"ORDER\\nThe Attorney General's Petition for Discretionary Review is allowed, pursuant to our general supervisory authority under Article IV, Section 12 of the Constitution of North Carolina, for the limited purpose of (1) vacating that portion of the Court of Appeals opinion ordering remand to the trial court for resentencing and (2) remanding to the Court of Appeals for reconsideration in light of State v. Timothy Earl Blackwell, 361 N.C. 41, - S.E.2d- (2006). The Court of Appeals opinion remains undisturbed in all other respects.\\nBy Order of the Court in Conference, this 19th day of December, 2006.\\ns/Timmons-Goodson. J. For the Court\"}" \ No newline at end of file diff --git a/nc/3737678.json b/nc/3737678.json new file mode 100644 index 0000000000000000000000000000000000000000..dfae4306f97161b5ccdefb2d752a4181f26fdd45 --- /dev/null +++ b/nc/3737678.json @@ -0,0 +1 @@ +"{\"id\": \"3737678\", \"name\": \"State v. Alexander\", \"name_abbreviation\": \"State v. Alexander\", \"decision_date\": \"2007-05-03\", \"docket_number\": \"No. 278P06\", \"first_page\": \"358\", \"last_page\": \"358\", \"citations\": \"361 N.C. 358\", \"volume\": \"361\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:03:17.308683+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hudson, J., Recused\", \"parties\": \"State v. Alexander\", \"head_matter\": \"State v. Alexander\\nCase below: 177 N.C. App. 281\\nNo. 278P06\", \"word_count\": \"43\", \"char_count\": \"255\", \"text\": \"1. Def's NOA Based Upon a Constitutional Question (COA05-971)\\n2. AG's Motion to Dismiss Appeal\\n3. Def's PDR Under N.C.G.S. \\u00a7 7A-31\\n1. _\\n2. Allowed 03/08/07\\n3. Denied 03/08/07\\nHudson, J., Recused\"}" \ No newline at end of file diff --git a/nc/3794250.json b/nc/3794250.json new file mode 100644 index 0000000000000000000000000000000000000000..897a966978c426986ca47da2a199aaf33e1d4e4a --- /dev/null +++ b/nc/3794250.json @@ -0,0 +1 @@ +"{\"id\": \"3794250\", \"name\": \"Cherney v. N.C. Zoological Park\", \"name_abbreviation\": \"Cherney v. N.C. Zoological Park\", \"decision_date\": \"2006-06-29\", \"docket_number\": \"No. 606A04-2\", \"first_page\": \"532\", \"last_page\": \"532\", \"citations\": \"360 N.C. 532\", \"volume\": \"360\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T02:10:35.550172+00:00\", \"provenance\": \"CAP\", \"judges\": \"Newby, J., and Timmons-Goodson, J., Recused\", \"parties\": \"Cherney v. N.C. Zoological Park\", \"head_matter\": \"Cherney v. N.C. Zoological Park\\nCase below: 166 N.C. App. 684\\nNo. 606A04-2\\nAllowed (06/29/06)\\nNewby, J., and Timmons-Goodson, J., Recused\", \"word_count\": \"28\", \"char_count\": \"187\", \"text\": \"Pit's Petition for Writ of Mandamus (COA03-1615)\"}" \ No newline at end of file diff --git a/nc/3805786.json b/nc/3805786.json new file mode 100644 index 0000000000000000000000000000000000000000..22224aba350d0aba5f9e2db4ff7ef22fe8ea46af --- /dev/null +++ b/nc/3805786.json @@ -0,0 +1 @@ +"{\"id\": \"3805786\", \"name\": \"ANNE BOGOVICH, Plaintiff v. EMBASSY CLUB OF SEDGEFIELD, INC., ROSS E. STRANGE, and wife, ANNE STRANGE, Defendants\", \"name_abbreviation\": \"Bogovich v. Embassy Club of Sedgefield, Inc.\", \"decision_date\": \"2011-04-19\", \"docket_number\": \"No. COA10-61\", \"first_page\": \"1\", \"last_page\": \"23\", \"citations\": \"211 N.C. App. 1\", \"volume\": \"211\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T00:33:31.654568+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges McGEE and STROUD concur.\", \"parties\": \"ANNE BOGOVICH, Plaintiff v. EMBASSY CLUB OF SEDGEFIELD, INC., ROSS E. STRANGE, and wife, ANNE STRANGE, Defendants\", \"head_matter\": \"ANNE BOGOVICH, Plaintiff v. EMBASSY CLUB OF SEDGEFIELD, INC., ROSS E. STRANGE, and wife, ANNE STRANGE, Defendants\\nNo. COA10-61\\n(Filed 19 April 2011)\\n1. Fraud\\u2014 constructive fraud \\u2014 breach of fiduciary duty\\nThe trial court did not err by granting summary judgment in favor of plaintiff with respect to the constructive fraud claim based on a breach of fiduciary duty by defendant individuals. The execution and recordation of the notes and deeds of trust without prior approval, in amounts that greatly exceeded the value of their claimed loans, constituted a breach of fiduciary duty by defendants. Further, the evidence supported a reasonable inference that defendants\\u2019 actions caused the corporation\\u2019s property to remain unsold during the years that plaintiff paid the ad valorem taxes.\\n2. Unfair Trade Practices\\u2014 summary judgment \\u2014 constructive fraud\\nThe trial court did not err by granting summary judgment in favor of plaintiff with respect to the unfair and deceptive trade practices claim given the upholding of summary judgment in favor of plaintiff for the constructive fraud claim.\\n.3. Damages and Remedies\\u2014 compensatory damages \\u2014 causal connection-\\nThe trial court did not err by submitting the issue of compensatory damages to the jury. The record did not establish that any claims adjudication procedure existed at the time the issue of damages was submitted to the jury. Further, plaintiff established a causal connection between defendants\\u2019 conduct and the unpaid ad valorem tax amounts.\\n4. Damages and Remedies\\u2014 punitive damages \\u2014 constructive fraud\\nThe trial court did not err by submitting to the jury the issue of whether plaintiff was entitled to recover punitive damages from defendant individuals. Punitive damages are justified in cases of constructive fraud.\\n5. Statutes of Limitation and Repose\\u2014 reimbursement for business expenses \\u2014 no tolling of statute\\nThe trial court did not err by concluding that defendant individuals\\u2019 reimbursement claims for alleged monies advanced and other obligations related to the corporation that allegedly arose in the 1970s and 1980s were barred by the statute of limitations under N.C.G.S. \\u00a7 1-52(1). Even if the applicable statute of limitations had been tolled until 1998, defendants never asserted a reimbursement claim.\\nAppeal by defendants from judgments entered 13 January 2009 and 30 March 2009 by Judge Catherine C. Eagles, from an order entered by Judge Eagles on 30 March 2009, and from an order entered 22 June 2009 by Judge Steve A. Balog, in Guilford County Superior Court. Heard in the Court of Appeals 18 August 2010.\\nSmith Moore Leatherwood LLP, by Elizabeth Brooks Scherer and Matthew Nis Leerberg, for Plaintiff-Appellee.\\nSmith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for Defendant-Appellant.\", \"word_count\": \"8850\", \"char_count\": \"54530\", \"text\": \"ERVIN, Judge.\\nDefendants Ross E. Strange and Anne Strange appeal from an order granting summary judgment in favor of Plaintiff Anne Bogovich with respect to her claims of constructive fraud and unfair and deceptive trade practices, from a judgment entered in favor of Plaintiff based on a jury verdict awarding compensatory and punitive damages against the Stranges, an order denying the Stranges' request for the entry of judgment notwithstanding the verdict, and from an order denying the Stranges' claims for reimbursement of money allegedly owed to Defendants Ross and Ann Strange. After careful consideration of the Stranges' challenges to the judgments and orders at issue in this case in light of the record and the applicable law, we conclude that the challenged judgments and orders should be affirmed.\\nI. Factual Background\\nA. Substantive Facts\\nMr. Strange was born in 1928. At the time of trial, he had been a practicing attorney for forty-eight years. Plaintiff Anne Bogovich is Mr. Strange's older sister.\\nThe litigation from which this appeal arises stems from the parties' ownership of Embassy Club, which was originally incorporated in 1971 by Mr. Strange, Art Lafata and Steven Kutos, all of whom owned an equal interest in the corporation. Embassy Club, which owned several acres of real property adjacent to the Sedgefield golf course, operated a private dinner club. The corporation purchased the shares owned by Mr. Lafata and Mr. Kutos in 1972 and 1973, respectively.\\nIn 1973, Ms. Bogovich purchased fifty percent (50%) of the shares in the corporation. Ms. Bogovich and Mr. Strange are equal shareholders in and directors of Defendant Embassy Club; Mr. Strange is the corporation's president and treasurer; Ms. Bogovich is the corporation's vice president; and Ms. Strange is the corporation's secretary.\\nThe corporation operated the dinner club from 1971 to 1976. Mr. Strange managed the club and its employees, performed physical work on the building, and had responsibility for the corporation's financial transactions and the maintenance of the corporation's records. Ms. Bogovich, who has lived in Florida since purchasing shares in Embassy Club, has not had any involvement in the daily operations of the corporation. In fact, Mr. Strange testified that Ms. Bogovich \\\"had no idea what was going on as far as the records were concerned, as far as the corporation was concerned.\\\" Although Mr. Strange testified that he and Ms. Bogovich periodically discussed the corporation by telephone, he admitted that he never provided his sister with tax returns, balance sheets, or other corporate reports and records.\\nThe dinner club operated by the corporation was never profitable. In December 1976, the dinner club and nearly all of Embassy Club's corporate records were destroyed in a fire. Since the fire, the corporation's property has not been used for any purpose.\\nIn December 1998, Ms. Bogovich's attorney wrote Mr. Strange for the purpose of seeking information about \\\"the status of the Embassy Club\\\" and informing Mr. Strange that Ms. Bogovich \\\"would like to accomplish the following objectives, hopefully without the necessity of legal action: (1) [conveyance by the corporation of a half interest in all property owned by [the corporation] to [Ms. Bogovich], or (2) [dissolution of the corporation with the conveyance of [one half] interest in all property owned by [the corporation] to her.\\\" After no action was taken in response to this request, Ms. Bogovich's attorney sent another letter to Mr. Strange in February 2000 requesting to be provided with an accounting and additional information about Mr. Strange's efforts to sell Embassy Club's property. Mr. Strange did not provide the requested information.\\nOn 27 July 2000, Ms. Bogovich's attorney wrote another letter to Mr. Strange's attorney. In this letter, Ms. Bogovich's attorney stated that Ms. Bogovich was prepared to initiate a civil action against Mr. Strange for breach of fiduciary duty and gave him 30 days to \\\"make concrete efforts to sell the property.\\\"\\nOn 10 August 2000, Defendants Ross Strange and Anne Strange executed and recorded notes and deeds of trust on behalf of the corporation securing an alleged obligation from Embassy Club to the Stranges, as individuals, in an amount in excess of $1,300,000.00. Mr. Strange admitted that he did not discuss these instruments with Ms. Bogovich before executing and recording them. In his deposition, Mr. Strange testified that he executed and recorded these notes and deeds of trust for the purpose of ensuring that, when Embassy Club's property was sold, he would be repaid for monies that he claimed that the corporation owed him.\\nIn his testimony, Mr. Strange attempted to substantiate his claim that Embassy Club owed him large amounts of money. For example, Mr. Strange testified that, beginning in the 1970s, he paid expenses associated with Embassy Club's operations using personal funds and that, between 1971 and 1976, he had worked at least five days a week at the club, that he handled \\\"all the book work,\\\" and that he had performed legal services for the corporation. Mr. Strange did not, however, state that Ms. Bogovich had recognized the alleged advances as loans and admitted that he had \\\"never discussed\\\" payment for his alleged legal work with Ms. Bogovich, that he had not kept records documenting the nature and extent of his legal services, and that the two of them had never discussed an interest rate that would be applicable to the alleged loans. Even so, at the time when Embassy Club's insurer settled the claim stemming from the dinner club fire, Mr. Strange retained several thousand dollars as payment for his alleged prior legal services.\\nIn addition, Mr. Strange testified that he expected to be reimbursed for the hours that he and Ms. Strange had worked at the dinner club from 1971 until the date upon which it closed and admitted that he had executed and recorded the notes and deeds of trust for the purpose, at least in part, of collecting monies that he and his wife were entitled to receive for working at the dinner club. However, Mr. Strange conceded that he and Ms. Bogovich had never discussed a specific amount of unpaid wages to which the Stranges were entitled and that Ms. Bogovich never executed a written agreement providing that he would receive a salary for his services.\\nMr. Strange did not dispute that he had a fiduciary relationship with his sister. According to Mr. Strange, Ms. Bogovich \\\"trusted that I would do what would be right.\\\" Mr. Strange testified that he took out loans in the name of the corporation without authorization given his \\\"friendly relationship with [his] sister.\\\" Mr. Strange did not discuss the sale of Embassy Club's property with Ms. Bogovich because his sister \\\"always left everything up to\\\" him. In response to questions addressing the extent of his communications with Ms. Bogovich about his right to receive a salary, Mr. Strange testified that Ms. Bogovich \\\"just trusted\\\" him and that they had \\\"probably not\\\" discussed a specific amount.\\nMr. Strange testified that, ever since the dinner club building burned in 1976, he had been \\\"attempting to sell the property\\\" by placing signs on the land and communicating with potential buyers. Mr. Strange admitted, however, that he had declined a 2008 offer to purchase the property for $1,500,000.00 without discussing it with Ms. Bogovich. Mr. Strange had not had the property professionally appraised or listed with a realtor because such actions \\\"w[ere]n't necessary\\\" in view of the fact that he previously held a real estate license and was \\\"familiar\\\" with real estate valuation.\\nAccording to Mr. Strange, the notes and deeds of trust \\\"were taken out solely because the Embassy Club owed that amount of money to me.\\\" However, Mr. Strange conceded that there were errors in his claims for reimbursement. For example, Mr. Strange admitted that he had erroneously compounded interest in the course of determining how much he was owed and acknowledged that the amounts specified in the notes and deeds of trust were \\\"more than likely\\\" based upon compounded interest, were incorrect, and \\\"would have to be redone completely.\\\" However, as of the date of his deposition, Mr. Strange had not taken any steps to correct these errors and admitted that, after he discovered these errors, \\\"[he] didn't change the Deeds of Trust, but they're wrong.\\\"\\nB. Procedural History\\nOn 4 March 2004, Ms. Bogovich filed a complaint alleging that the notes and deeds of trust executed and recorded by the Stranges were invalid on the grounds that the Stranges' conduct had defrauded Ms. Bogovich and reduced the value of her Embassy Club stock. As a result, Ms. Bogovich requested the court to invalidate the notes and deeds of trust, judicially dissolve Embassy Club, and award compensatoiy and punitive damages against the Stranges for breach of fiduciary duty, constructive fraud, and unfair and deceptive trade practices. In their answer, Defendants admitted that the Stranges had encumbered Embassy Club's real property by executing and recording the challenged notes and deeds of trust. However, Defendants denied that any of the Stranges' activities had been unlawful.\\nOn 11 November 2004, the parties reached a mediated settlement agreement that provided, in pertinent part, that Embassy Club's property would be sold \\\"to [a] bona fide purchaser for market value.\\\" On 7 September 2005, this case was administratively closed.\\nOn 13 March 2008, however, Ms. Bogovich filed a motion seeking to have the settlement agreement enforced. In her motion, Ms. Bogovich alleged that Mr. Strange had obstructed the sale of the Embassy Club property, had failed to list the property with a realtor, and had rejected an offer to purchase the property for $1,500,000.00. In addition, Ms. Bogovich asserted that she had been paying the property taxes because the Stranges refused to do so.\\nOn 10 April 2008, Judge Yvonne Mims Evans entered an order granting Ms. Bogovich's motion to enforce the settlement. In her order, Judge Evans ruled that Mr. Strange had obstructed the sale of the Embassy Club property, that Mr. Strange had \\\"refuse[d] to accept or negotiate]] bona fide offers\\\" to purchase the property, and that Ms. Bogovich had \\\"been paying [] all of the taxes on the [Embassy Club], because [Mr. Strange] [had] fail[ed] and refuse[d] to do so.\\\" As a result, Judge Evans reopened this case for the purpose of enforcing the settlement agreement. On 15 May 2008, Ms. Bogovich filed a motion to set aside the order transferring this case to the inactive calendar. Judge Eagles granted this motion on 12 June 2008.\\nOn 24 December 2008, Ms. Bogovich moved for partial summary-judgment. On 13 January 2009, Judge Eagles entered an order granting summary judgment in favor of Ms. Bogovich with respect to the constructive fraud and unfair and deceptive trade practices claims, invalidating the notes and deeds of trust, and ordering that the corporation be judicially dissolved and liquidated. According to Judge Eagles' order, \\\"[t]he only issue remaining . is the amount of actual and punitive damages to which [Ms. Bogovich] is entitled to recover on her claims,\\\" with the issue \\\"of attorneys' fees and treble damages\\\" left \\\"open\\\" for later resolution.\\nOn 14 January 2009, the parties stipulated that, in August 2000, the Stranges \\\"executed . . . promissory notes and deeds of trust... in favor of themselves personally, encumbering the [r]eal [property\\\" owned by Embassy Club and that the Stranges \\\"are Officers of the Corporation,\\\" and \\\"executed the Notes and Deeds of Trust in their official capacities as President and Secretary of the Corporation.\\\" The parties also stipulated that face value of the notes and deeds of trust totaled $1,327,831.00.\\nThe damage issue was heard before Judge Eagles and a jury beginning on 20 January 2009. On 23 January 2009, the jury returned a verdict finding the Stranges liable to Ms. Bogovich for $12,165.00 in compensatory damages for breach of fiduciary duty, finding Mr. Strange liable to Ms. Bogovich for $510,000.00 in punitive damages, and finding Ms. Strange liable to Ms. Bogovich for $1.00 in punitive damages. Subsequently, the Stranges filed motions for judgment notwithstanding the verdict and for a new trial, which Judge Eagles denied on 30 March 2009. On the same date, Judge Eagles entered judgment in favor of Ms. Bogovich based upon the jury's verdict. Prior to entering judgment, Judge Eagles reduced the jury's punitive damage award against Mr. Strange from $510,000.00 to $250,000.00 as required by N.C. Gen. Stat. \\u00a7 lD-25(b).\\nAfter the return of the jury's verdicts, the parties agreed that the Stranges' reimbursement claims would be heard by the court sitting without a jury. As a result, Judge Balog began conducting a nonjury proceeding for the purpose of addressing the claims reimbursement issue on 2 April 2009. On 22 June 2009, Judge Balog entered an order denying all of the Stranges' claims. Defendants noted an appeal to this Court from the 13 January 2009 order granting partial summary judgment in favor of Ms. Bogovich, the 30 March 2009 judgment, the 30 March 2009 order denying the Stranges' post-trial motions, and the 22 June 2009 order denying the Stranges' reimbursement request.\\nII. Legal Analysis\\nA. Constructive Fraud\\nFirst, the Stranges argue that Judge Eagles erred by granting summary judgment in favor of Ms. Bogovich with respect to her constructive fraud claim. In support of this contention, the Stranges assert that their \\\"conduct had no aggravating factors and did not cause any disadvantage or harm to\\\" Ms. Bogovich. The Stranges' argument lacks merit.\\nSummary judgment is proper when, viewed in the light most favorable to the non-movant, \\\"the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\\\" N.C.R. Civ. P. 56(c). The moving party initially bears the burden of demonstrating that no genuine issue of material fact exists. If the moving party makes the required showing, \\\"the burden shifts to the nonmovant to adduce specific facts establishing a triable issue.' \\\" Lunsford v. Renn, - N.C. App. - , - , 700 S.E.2d 94, 97 (2010) (citing S.B. Simmons Landscaping & Excavating, Inc. v. Boggs, 192 N.C. App. 155, 163-64, 665 S.E.2d 147, 152 (2008), and quoting Self v. Yelton, - N.C. App. -, -, 688 S.E.2d 34, 38 (2010)). On appeal, the Stranges essentially concede that there are no disputed issues of material fact, acknowledging in their brief that \\\"the issues raised in this appeal are questions of law, as to which the court must conduct de novo review.\\\" Given our agreement that the pertinent facts are largely undisputed, we must next consider whether Ms. Bogovich was entitled to judgment in her favor with respect to the relevant claims as a matter of law.\\nThe elements of a constructive fraud claim are proof of circumstances \\\"(1) which created the relation of trust and confidence [the 'fiduciary' relationship], and (2) [which] led up to and surrounded the consummation of the transaction in which defendant is alleged to have taken advantage of his position of trust to the hurt of plaintiff.\\\" Put simply, a plaintiff must show (1) the existence of a fiduciary duty, and (2) a breach of that duty.\\nKeener Lumber Co. v. Perry, 149 N.C. App. 19, 28, 560 S.E.2d 817, 823, disc. review denied, 356 N.C. 164, 568 S.E.2d 196 (2002) (quoting Terry v. Terry, 302 N.C. 77, 83, 273 S.E.2d 674, 677 (1981)). The Supreme Court has stated that:\\n\\\"A claim of constructive fraud does not require the same rigorous adherence to elements as actual fraud.\\\" . . . Thus, \\\"[constructive fraud differs from actual fraud in that it is based on a confidential relationship rather than a specific misrepresentation.\\\" Another difference is that intent to deceive is not an element of constructive fraud. When, as here, the superior party obtains a possible benefit through the alleged abuse of the confidential or fiduciary relationship, the aggrieved party is entitled to a presumption that constructive fraud occurred.\\nForbis v. Neal, 361 N.C. 519, 528-29, 649 S.E.2d 382, 388 (2007) (quoting Barger v. McCoy Hillard & Parks, 346 N.C. 650, 666, 488 S.E.2d 215, 224 (1997) (quoting Rhodes v. Jones, 232 N.C. 547, 549, 61 S.E.2d 725, 726 (1950)), and citing Link v. Link, 278 N.C. 181, 192, 179 S.E.2d 697, 704 (1971)) (other citation omitted).\\nAfter carefully reviewing the record, we conclude that the undisputed evidence demonstrated that Ms. Bogovich established a valid constructive fraud claim based on a breach of fiduciary duty by the Stranges. The Stranges do not appear to deny that a fiduciary relationship existed between them and Ms. Bogovich. They acknowledge in their brief that, because Ms. Bogovich and Mr. Strange were directors of Embassy Club, \\\"they stood in a mutual fiduciary relationship.\\\" Since the Stranges also admit that Ms. Strange is an officer of Embassy Club, she also stands in a fiduciary relationship with Ms. Bogovich. In addition, the Stranges also admit that:\\nMr. Strange prepared a series of promissory notes payable to himself and his wife secured by deeds of trust on the corporation's real estate. The documents were signed by Mr. Strange as president of the corporation and [Ms.] Strange as secretary of the corporation. The notes and deeds of trust total approximately $1.3 million. . . . Mr. Strange had no discussions with Ms. Bogovich about the notes and deeds of trust either before or after the date of their execution. There was no agreement of the parties on an interest rate. There was no formal approval of the loans____The amounts claimed on the notes and deeds of trust were greatly in excess of money actually advanced by Mr. Strange to the corporation.\\nThe execution and recordation of the notes and deeds of trust without proper approval, in amounts that greatly exceeded the value of their claimed loans, clearly constituted a breach of fiduciary duty on the part of the Stranges.\\nHowever, according to Defendants, the improper execution and recordation of these notes and deeds of trust did not constitute a valid basis for Judge Eagles' decision to grant summary judgment in Ms. Bogovich's favor with respect to her constructive fraud claim because \\\"[t]he only wrongful conduct that [Ms. Bogovich] was able to attribute to [the Stranges] were the execution of corporate notes and deeds of trust and recordation of deeds of trust on the corporation in their favor in the amount of approximately $1.3 million.\\\" Although the Stranges effectively concede that they engaged in \\\"wrongful conduct,\\\" they argue that their conduct was not sufficiently egregious to support a claim for constructive fraud. In essence, the Stranges contend that the \\\"only breach of fiduciary duty that rises to the level of constructive fraud is that which has some significant aggravating factor, ordinarily the tendency to deceive, to violate a confidence, or to injure public interests.\\\" In support of this argument, the Stranges cite Miller v. Bank, 234 N.C. 309, 316, 67 S.E.2d 362, 367-68 (1951), in which the Supreme Court stated that:\\nConstructive fraud differs from active fraud in that the intent to deceive is not an essential element, but it is nevertheless fraud though it rests upon presumption arising from breach of fiduciary obligation rather than deception intentionally practiced. Constructive fraud has been frequently defined as \\\"a breach of duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive, to violate confidence or to injure public interests. Neither actual dishonesty nor intent to deceive is an essential element of constructive fraud.\\\"\\n(citing Rhodes, id.) (other citations omitted). The language upon which the Stranges rely specifically reiterates that an intent to deceive is not an element of constructive fraud and does not state that a \\\"significant aggravating factor\\\" must be proven in order to establish a valid constructive fraud claim. As a result, we conclude that this aspect of Defendants' challenge to Judge Eagles' partial summary judgment order rests upon a misapprehension of applicable law.\\nIn addition, we reject the Stranges' argument that Ms. Bogovich was not entitled to summary judgment on her constructive fraud claim because (1) the Stranges had a valid reason for executing and recording the challenged notes and deeds of trust and (2) under appropriate circumstances, they would have been willing to cancel the challenged notes and deeds of trusts. In support of this contention, the Stranges assert that:\\n[T]he notes and deeds of trust were solely for the purpose of trying to insure that payments made to the corporation by [Mr.] Strange would be repaid, when the real estate of considerable value, the only remaining asset of the corporation, would be sold. The uncontradicted testimony of Mr. Strange is that he would have canceled the deeds of trust in order to facilitate the transaction, in the event a contract to sell the real estate was made.\\nThe Stranges have not cited any authority demonstrating that a defendant's belief that he is entitled to reimbursement for alleged loans constitutes a valid defense to a constructive fraud claim, and we have located no such authority during our own research. The basis for Judge Eagles' determination that the Stranges violated their fiduciary duty to Ms. Bogovich stemmed from the fact that they executed and recorded the challenged notes and deeds of trust without proper authorization rather than because the Stranges chose to act in this manner for any particular reason. As a result, we conclude that the fact that the Stranges claimed that to be entitled to reimbursement for their claims and their contention that they would, under certain circumstances, have agreed to the cancellation of the challenged instruments does not preclude a finding that they breached their fiduciary duty to Ms. Bogovich.\\nThirdly, the Stranges argue that Judge Eagles improperly granted summary judgment in favor of Ms. Bogovich with respect to her constructive fraud claim on the grounds that the execution and recordation of the notes and deeds of trust \\\"did not cause any disadvantage or harm to\\\" Ms. Bogovich. The Stranges do not dispute the fact that the challenged notes and deeds of trust constituted a lien on Embassy Club's property and admit that they executed and recorded these instruments \\\"to insure that payments made . by [Mr.] Strange would be repaid, when the real estate . . . w[as] sold.\\\" In addition, the Stranges concede that \\\"[t]he amounts claimed on the notes and deeds of trust were greatly in excess of money actually advanced by Mr. Strange to the corporation.\\\" As a result, the execution and recordation of the notes and deeds of trust significantly reduced the value of Ms. Bogovich's interest in the Embassy Club's assets, thus substantially \\\"disadvantag[ing] or harm[ing]\\\" her.\\nFourth, the Stranges argue that Judge Eagles improperly entered summary judgment in favor of Ms. Bogovich with respect to the constructive fraud issue because Ms. Bogovich failed to establish the amount of compensatory damages to which she was entitled. However, Judge Eagles granted partial summary judgment in favor of Ms. Bogovich based on her unrebutted forecast of evidence tending to show a breach of fiduciary duty. Judge Eagles' summary judgment order specifically reserved the issue of the amount of actual damages which Ms. Bogovich was entitled to recover from the Stranges for determination by a jury. At bottom, the undisputed evidence established the existence of all of the elements required for a finding of liability for constructive fraud. According to well-established law, \\\"[o]nce a cause of action is established, plaintiff is entitled to recover, as a matter of law, nominal damages . . . .\\\" Hawkins v. Hawkins, 101 N.C. App. 529, 532, 400 S.E.2d 472, 474 (1991), aff'd, 331 N.C. 743, 417 S.E.2d 447 (1992) (citations omitted).\\nIn addition, the Stranges acknowledge that Ms. Bogovich claimed to be entitled to recover the monies that she spent paying ad valorem taxes relating to the Embassy Club's real property from 2005 through 2008 as compensatory damages. However, the Stranges argue that these tax payments \\\"could not properly be regarded as damages\\\" because these amounts were more properly treated as loans to the corporation recoverable through the claims reimbursement process.\\nAt the time that Judge Eagles entered partial summary judgment in favor of Ms. Bogovich on 13 January 2009, no receiver had been appointed and the parties had not agreed to a \\\"claims adjudication process.\\\" In fact, as late as the end of the damages proceeding before the jury, no \\\"claims adjustment process\\\" had been created. When the parties prepared to present their closing arguments to the jury on the damages issue, the Stranges requested Judge' Eagles to preclude Ms. Bogovich's counsel from arguing that Ms. Bogovich was entitled to recover the ad valorem tax payments that she had made on behalf of the corporation as damages on the grounds that, after the appointment of a receiver, a claims adjudication proceeding would be conducted. In response, Judge Eagles stated that:\\n[DEFENSE COUNSEL]:... [W]e'd ask you to instruct the jury . that the Court has already determined there'll be an equal division of the net assets of [Embassy Club.]\\n[TRIAL] COURT: You know, I'm not going to get into that. . . . I have not appointed a receiver. I have not signed anything[.]\\n[DEFENSE COUNSEL]: . I think [Ms. Bogovich's counsel] will say to the jury, you know who paid these taxes of $13,500, and that's our monetary damage[.]\\n[PLAINTIFF'S COUNSEL]: . . . [T]hat's my damage issue.\\n[TRIAL] COURT: I think that is what she's going to say.\\n[DEFENSE COUNSEL]: I don't think she should say that[,] . . . [b]ecause those are claims, and they will be submitted in the claims adjudication process, just as our claims are.\\n[TRIAL] COURT: You know, I have not made any decision. Because, when I looked at this case, there's nothing in the pleadings about these darned claims of Mr. Strange. And, you know, how that's going to be dealt with is just not here today.\\n[DEFENSE COUNSEL]: I'm not talking about his claims. I'm saying, she should not be allowed to bootstrap up on taxes, to say they're damages, when they truly are claims that will be presented to the receiver.\\n[TRIAL] COURT: I don't know that.\\nAs a result, the record simply does not support the Stranges' contention that, at the time summary judgment was granted, a \\\"claims adjudication process\\\" under which Ms. Bogovich might have recovered her tax payments was in place. Furthermore, the Stranges have cited no authority establishing that, had a \\\"claims adjustment process\\\" existed, Plaintiff would have been required to seek relief through that process instead of seeking to recover those payments as damages, and we have not found any such authority during our own research.\\nFinally, the Stranges argue that their actions in encumbering the Embassy Club property did not proximately case Ms. Bogovich to make the unpaid ad valorem tax payments. However, the undisputed evidence in the record shows that: (I) beginning in the mid to late 1990s, Ms. Bogovich repeatedly asked that the Embassy Club property be sold and that she be provided with various corporate records; (2) that the Stranges subjected Embassy Club's property to liens totaling in excess of $1,000,000.00; (3) that Mr. Strange did not consult an appraiser or list the property for sale with a real estate agent; and (4) that Mr. Strange rejected offers to buy the property, including a $1,500,000.00 offer made in the year prior to trial, without consulting Ms. Bogovich. This uncontradicted evidence is sufficient to support a reasonable inference that the Stranges' actions caused the corporation's property to remain unsold during the years that Ms. Bogovich paid the ad valorem taxes, thereby establishing a valid basis for a compensatory damages award. As a result, for all of these reasons, we conclude that Judge Eagles did not err by entering summary judgment in favor of Ms. Bogovich with respect to her constructive fraud claim.\\nB. Unfair and Deceptive Trade Practices\\nIn addition to challenging Judge Eagles' decision to grant summary judgment in favor of Ms. Bogovich with respect to her constructive fraud claim, the Stranges argue that Judge Eagles erroneously granted summary judgment in Ms. Bogovich's favor with respect to her unfair and deceptive trade practices claim. In challenging this aspect of Judge Eagles' partial summary judgment order, the Stranges claim that \\\"an intracorporate dispute cannot amount to an unfair trade practice.\\\" Having upheld Judge Eagles' decision to grant summary judgment in favor of Ms. Bogovich with respect to the constructive fraud issue, we need not address the merits of the Stranges' challenge to Judge Eagles' ruling concerning the unfair and deceptive trade practices claim. \\\"Plaintiffs may in proper cases elect to recover either punitive damages under a common law claim or treble damages under [N.C. Gen. Stat.] \\u00a7 75-16, but they may not recover both.\\\" Ellis v. Northern Star Co., 326 N.C. 219, 227, 388 S.E.2d 127, 132 (1990) (citing Bicycle Transit Authority v. Bell, 314 N.C. 219, 230, 333 S.E.2d 299, 306 (1985), and Mapp v. Toyota World, Inc., 81 N.C. App. 421, 426-27, 344 S.E.2d 297, 301, disc. rev. denied, 318 N.C. 283, 347 S.E.2d 464 (1986)) (other citation omitted). In this case, as Judge Eagles' judgment plainly indicates, Ms. Bogovich elected to receive punitive damages rather than treble damages. \\\"[T]o obtain relief on appeal, an appellant must not only show error, but... must also show that the error was material and prejudicial, amounting to denial of a substantial right that will likely affect the outcome of an action.\\\" Starco, Inc. v. AMG Bonding and Ins. Services, 124 N.C. App. 332, 335, 477 S.E.2d 211, 214 (1996) (citing Cook v. Southern Bonded, Inc., 82 N.C. App. 277, 346 S.E.2d 168 (1986), disc. review denied, 318 N.C. 692, 351 S.E.2d 741 (1987)). The Stranges have not explained how any error that Judge Eagles may have committed with respect to the unfair and deceptive trade practices issue prejudiced them given our decision to affirm her ruling with respect to the constructive fraud issue. As a result, the Stranges are not entitled to relief on the basis of their claim that Judge Eagles erred by granting summary judgment in Ms. Bogovich's favor with respect to the unfair and deceptive trade practices issue.\\nC. Compensatory Damages\\nNext, the Stranges argue that Judge Eagles erred by submitting the issue of compensatory damages to the jury. According to the Stranges, there \\\"was no basis for [the] recovery of compensatory damages in this case\\\" because the ad valorem taxes that underlie Ms. Bogovich's compensatory damage claim \\\"constitute recoverable claims in the dissolution and liquidation [process], not compensatory damages\\\" and should be \\\"recoverable by means of a claims adjudication procedure rather than as an element of damages.\\\" As we have noted above, however, the record does not indicate that any \\\"claims adjudication procedure\\\" existed at the time the issue of damages was submitted to the jury. In addition, Defendants have cited no authority to the effect that ad valorem taxes may not be an element of damages. We note, for example, that in SNML Corp. v. Bank, 41 N.C. App. 28, 38, 254 S.E.2d 274, 280, cert. denied, 298 N.C. 204, 254 S.E.2d 274 (1979), the \\\"trial court ordered that the plaintiff recover of appellant the sum of $27,057.15, the precise amount of ad valorem taxes . . . which plaintiff was required to pay after all other parties failed to pay. The trial court was undoubtedly following the general rule that plaintiff was entitled to damages . . . which naturally and proximately are caused by the breach of defendant's duty to plaintiff.\\\" See also, e.g., Dawson v. Dep't of Env't & Nat. Resources, \\u2014 N.C. App. \\u2014, \\u2014, 694 S.E.2d 427, 429 (2010) (stating that the Commission \\\"found DENR negligent and ordered DENR to pay the Dawsons damages for the purchase price, closing costs, lost earnings, appraisal fees, expert fees, and ad valorem taxes\\\"). Finally, Ms. Bogovich established an adequate causal connection between the Stranges' conduct and the unpaid ad valorem tax amounts. As a result, the Stranges are not entitled to relief based upon this argument.\\nD. Punitive Damages\\nFourth, the Stranges contend that Judge Eagles erred by submitting the issue of whether Ms. Bogovich was entitled to recover punitive damages from the Stranges to the jury. We disagree.\\nN.C. Gen. Stat. \\u00a7 ID-15 provides, in pertinent part, that:\\n(a) Punitive damages may be awarded only if the claimant proves that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to the injury for which compensatory damages were awarded: (1) Fraud[,] (2) Malice[, or] (3) Willful or wanton conduct.\\n(b) The claimant must prove the existence of an aggravating factor by clear and convincing evidence.\\nAs an initial proposition, the Stranges argue that, \\\"[b]ecause there were no recoverable compensatory damages,\\\" Ms. Bogovich was not entitled to recover punitive damages. For the reasons we have already discussed, however, Judge Eagles did not err by concluding that Ms. Bogovich was entitled to the submission of a compensatory damages issue to the jury.\\nIn addition, the Stranges assert that Ms. Bogovich sought to recover punitive damages \\\"solely on the basis of fraud\\\" and note the provision of N.C. Gen. Stat. \\u00a7 lD-5(4) stating that, punitive damages \\\"shall not be awarded... solely for breach of contract.\\\" On this basis, Defendants assert that \\\"[f]raud does not include constructive fraud unless an element of intent is present\\\" and that \\\"an aggravating factor of fraud must be proven 'by clear and convincing evidence.' \\\" However, contrary to the implication of the Stranges' argument, there is no per se prohibition against the recovery of punitive damages based upon constructive fraud in the relevant statutory language.\\nA trial court is entitled to submit the issue of punitive damages to the jury upon a showing of constructive fraud. . As discussed above, the trial court properly determined that a fiduciary relationship existed and then the jury found that defendant failed to overcome the presumption of fraud by not proving his actions were open, fair and honest. Thus, the issue of punitive damages was properly submitted to the jury.\\nMelvin v. Home Federal Savings & Loan Ass'n, 125 N.C. App. 660, 665, 482 S.E.2d 6, 8-9 (citing Bumgarner v. Tomblin, 92 N.C. App. 571, 576, 375 S.E.2d 520, 523, disc. review denied, 324 N.C. 333, 378 S.E.2d 789 (1989), and Booher v. Frue, 98 N.C. App. 570, 579, 394 S.E.2d 816, 821, disc. review denied, 327 N.C. 426, 395 S.E.2d 674 (1990)), disc. rev. denied, 346 N.C. 281, 487 S.E.2d 551 (1997). \\\"Moreover, in Compton [v Kirby, 157 N.C. App. 1, 577 S.E.2d 905 (2003),] our Court recognized that '[p]unitive damages are justified in cases of constructive fraud, N.C. Gen. Stat. \\u00a7 1D-I5(a)(l) (2001), as long as 'some compensatory damages have been shown with reasonable certainty.' \\\" Babb v. Graham, 190 N.C. App. 463, 478, 660 S.E.2d 626, 636 (2008) (quoting Compton, 157 N.C. App. at 21, 577 S.E.2d at 917 (quoting Olivetti Corp. v. Ames Business Systems, Inc., 319 N.C. 534, 549, 356 S.E.2d 578, 587 (1987)), disc. rev. denied, 360 N.C. 174, 625 S.E.2d 781 (2009).\\nDuring her consideration of the Stranges' objection to the submission of a punitive damages issue to the jury, Judge Eagles stated that:\\n[TRIAL] COURT: . . . I'm going to deny the motion. I think there's plenty of evidence to go to the jury on punitive damages[.] . [I]f the jury believes the evidence this way, somebody who refused for years to disclose any information about the financial condition of this corporation at all, and then, in the face of some lawyer letters, filed liens against this property . . . when he knew he didn't have any evidence to support these loans, which is what he testified to. . . . [I]f they believe that, they could find that. . . appalling, and impose some punitive damages on that. And that's believing his testimony.\\nWe agree with Judge Eagles that the record evidence concerning the Stranges' conduct, if credited by the jury, would support an award of punitive damages based on clear and convincing evidence that the Stranges intentionally committed a fraudulent act. As a result, we conclude that Judge Eagles did not err by allowing the jury to consider a punitive damages issue.\\nE. Reimbursement Claims\\nAs we have already noted, Ms. Bogovich's complaint against the Stranges was predicated, in large measure, on the fact that the' Stranges improperly executed and recorded notes and deeds of trust on behalf of Embassy Club securing an alleged liability to themselves in an amount in excess of $1,300,000.00. In response to the interrogatories inquiring about the \\\"consideration for the indebtedness of [the] Embassy Club\\\" evidenced by the notes and deeds of trust, the Stranges stated that the consideration consisted of \\\"personal loans\\\" made by the Stranges and Anne Strange to Embassy Club, salaries owed to the Stranges, and Mr. Strange's payment of certain corporate debts. In his deposition and at trial, Mr. Strange reiterated the validity of this assertion.\\nOn 2 April 2009, Judge Balog conducted a nonjury proceeding for the purpose of addressing the Stranges' reimbursement claims. At that proceeding, Mr. Strange testified that he had made payments on loans owed by Embassy Club, that he had advanced personal funds to Embassy Club, and that he had continued to pay Embassy Club's expenses after the 1976 fire. Mr. Strange stated that he did not receive a salary for his work on behalf of Defendant Embassy Club and that he had never asked Plaintiff Anne Bogovich for authorization to receive a salary or to obtain repayment of the money he claimed to have advanced to the corporation. On cross-examination, Mr. Strange admitted that there were errors in his claims for reimbursement and that he had kept part of the insurance settlement relating to the 1976 fire.\\nOn 22 June 2009, Judge Balog entered an order denying the Strange's reimbursement claims, finding, in pertinent part, that:\\n(4) Over the course of several years until the latter part of the 1980s [Mr.] Strange advanced substantial sums of money used by the corporation in the operation of the supper club. By a preponderance of the evidence, the amount of money Mr. Strange advanced to the corporation was $120,220.70.\\n(5) This money was advanced by Mr. Strange to the corporation without any approval by the corporation.\\n(6) There were no instruments evidencing any debts to Mr. Strange for any of these alleged loans.\\n(7) There was no fixed interest rate or payment schedule for any of these alleged loans.\\n(8) These monies advanced by Mr. Strange to the corporation were used for its business purposes.\\n(9) There was a total disregard of corporate formalities with regard to corporate meetings and minutes.\\n(10) Mr. Strange did not receive any formal authorization . . . for these alleged loans. [Ms.] Bogovich was not informed of these advances of money or any details of operation of the supper club.\\n(11) These advances of monies by Mr. Strange were not shareholder loans and lawful debts of the corporation and this money is not owed to Mr. Strange by the corporation.\\n(12) Claims that these monies were shareholder loans are also absolutely barred by the applicable statute of limitations.\\n(13) [The] Strange[s] have asserted claims that the corporation owes them salaries for their time devoted to operation of the supper club.\\n(14) There was no agreement by the corporation to pay a salary to [the] Strange [s].\\n(15) There is no valid claim for salary[.]\\n(16) Any claims for salary . . . are also barred absolutely by the statute of limitations.\\nBased on these findings of fact, Judge Balog concluded as a matter of law that:\\n(2) Monies advanced by Mr. Strange to the corporation are not shareholder loans and lawful debts of the corporation and this money is not owed to Mr. Strange.\\n(3) Claims for monies advanced to the corporation by Mr. Strange are barred by the statute of limitations.\\n(4) Claims by [the] Strange [s] for salaries and claims under quantum meruit to recover for time spent on behalf of the corporation are not valid.\\n(5) Claims by [the] Strange [s] for salaries and claims under quantum meruit to recover for time spent on behalf of the corporation are barred by the statute of limitations.\\nOn appeal, the Stranges challenge Judge Balog's decision to reject their claim for reimbursement on several grounds.\\n1. Statute of Limitations\\nFirst, the Stranges argue that Judge Balog erred by concluding that their reimbursement claims were barred by the applicable statute of limitations. This argument lacks merit.\\nN.C. Gen. Stat. \\u00a7 l-15(a) provides that \\\"[c]ivil actions can only be commenced within the periods prescribed in this Chapter, after the cause of action has accrued, except where in special cases a different limitation is prescribed by statute.\\\" The Stranges do not posit any statutory or common law basis for their reimbursement claims or contend that their reimbursement claims sound in contract. As a result, we will assume for purposes of discussion that the Stranges are relying on an implied contract or oral agreement theory in support of their reimbursement claims.\\nAccording to N.C. Gen. Stat. \\u00a7 1-52(1), an action \\\"[u]pon a contract, obligation or liability arising out of a contract, expressed or implied,\\\" must be filed within three years of an alleged breach of that contract. However, \\\"where money is lent pursuant to an oral agreement which fails to specify a time for repayment, the repayment is due within a reasonable time. A party must bring an action to recover the repayment within three years after the reasonable time period has passed. In essence, a party has a reasonable time period plus three years in which to bring the action before it is barred by the statute of limitations.\\\" Phillips & Jordan Investment Corp. v. Ashblue Co., 86 N.C. App. 186, 188, 357 S.E.2d 1, 2, disc. rev. denied, 320 N.C. 633, 360 S.E.2d 92 (1987).\\nThe Stranges' reimbursement claims are based on advances made and other obligations that allegedly arose in the 1970s and 1980s. The Stranges have never filed a civil action seeking payment of their claims, even after Ms. Bogovich filed suit against them in 2004. The Stranges do not contend that the more than ten year interval between the last date upon which they provided monies or services to Embassy Club and the date upon which they first mentioned their claim against the corporation constituted a \\\"reasonable time.\\\" Instead, they assert that their reimbursement claims were not time-barred because \\\"the statute of limitations does not run between co-fiduciaries absent demand.\\\" We do not, however, believe that the principle upon which the Stranges rely permits the maintenance of their reimbursement claims.\\nAdmittedly, \\\" 'where a fiduciary relation exists between the parties, with respect to money due by one to the other, the statute of limitations does not begin to run until there has been a demand and refusal.' \\\" Glover v. First Union National Bank, 109 N.C. App. 451, 455, 428 S.E.2d 206, 208 (1993) (quoting Efird v. Sikes, 206 N.C. 560, 562, 174 S.E. 513, 513-14 (1934)). Thus, if Ms. Bogovich had agreed that the Stranges would be repaid for monies allegedly advanced to the corporation and paid wages for work performed on behalf of the corporation, the statute of limitations might have been tolled until the Stranges requested reimbursement and Ms. Bogovich rejected that request. For example, in Fulp v. Fulp, 264 N.C. 20, 26, 140 S.E.2d 708, 714 (1965), the Supreme Court held that:\\nUnquestionably, therefore, the statute of limitations began to run against plaintiff's claim against defendant when . . . she called upon him to perform his agreement. . . and he replied \\\"You don't think I'm a damn fool, do you?\\\" This was a flat repudiation of his agreement and was notice to plaintiff that he intended to misappropriate the funds which he had received from her through their confidential relationship.\\nIn this case, however, the Stranges do not claim that an express agreement existed or that Ms. Bogovich refused to honor it. Instead, the Stranges contend that the statute of limitations was tolled until 1998, when Ms. Bogovich sent Mr. Strange what the Stranges characterized as \\\"demand letters.\\\" Although the Stranges do not specifically identify the letters upon which they rely in support of this argument, the record indicates that Ms. Bogovich sent several letters to Mr. Strange seeking information about Embassy Club's financial status and Mr. Strange's efforts to sell the corporation's real property. Ms. Bogovich did not \\\"demand\\\" anything in these letters except to be provided with corporate information to which she was indisputably entitled. In addition, the Stranges never \\\"refused\\\" to provide the requested information; instead, after Ms. Bogovich sent another letter in 2000, Mr. Strange replied that he was \\\"in the process of collecting the [requested] information\\\" and would \\\"contact [Ms. Bogovich's attorney] when [the collection process had been] completed\\\" on 10 March 2000. The Stranges have failed to explain how this exchange of letters could be construed as a \\\"demand and refusal\\\" that would belatedly trigger the running of the applicable statute of limitations.\\nMoreover, even if the applicable statute of limitations had been tolled until 1998, the Stranges never asserted a reimbursement claim. In September 2004, the Stranges filed answers to Ms. Bogovich's interrogatories in which they stated that the challenged instruments were supported by \\\"consideration\\\" in the form of debts allegedly owed to the Stranges. Assuming, without in any way deciding, that these interrogatory responses were the equivalent of asserting a reimbursement claim, the Stranges have made no attempt to establish that the six year interval between 1998 and 2004 constituted a \\\"reasonable\\\" time to wait before seeking reimbursement for monies advanced and services provided in the 1970s and 1980s. Instead, the Stranges argue that the filing of a lawsuit by Ms. Bogovich tolled the limitations period applicable to their reimbursement claims \\\"because no statute of limitations runs against a litigant while his case is pending in court.\\\"\\nThe initial problem with this aspect of the Stranges' argument is that the claim pending in the judicial system was brought by Ms. Bogovich rather than the Stranges. Moreover, although the Stranges cite several cases in support of their argument:\\nNone of them, however, is applicable to the case at bar. Each involves a plaintiff's claim against a single defendant before the Industrial Commission and holds that while the plaintiffs claim for compensation is pending before the Commission, no statute of limitations runs against the litigant on that claim.\\nBernard v. Ohio Casualty Ins. Co., 79 N.C. App. 306, 308-09, 339 S.E.2d 20, 22 (1986) (citing Giles v. Tri-State Erectors, 287 N.C. 219, 214 S.E. 2d 107 (1975), and Watkins v. Motor Lines, 279 N.C. 132, 181 S.E. 2d 588 (1971) (other citations omitted). The Stranges have cited no support for the proposition that litigation initiated by a plaintiff tolls the statute of limitations with respect to a defendant's counterclaim, and any such assertion would be contrary to the relevant decisions. See e.g., State Farm Mut. Auto. Ins. Co. v. Gaylor, 190 N.C. App. 448, 451, 660 S.E.2d 104, 106 (2008), disc. rev. denied, 363 N.C. 130, 676 S.E.2d 310 (2009) (stating that, where the defendants \\\"failed to file their counterclaims within the three-year statute of limitations period,\\\" the trial court \\\"did not err when it granted [plaintiffs] motion to dismiss the . . . counterclaims\\\"). Thus, the filing of Ms. Bogovich's complaint does not in any way serve to toll the statute of limitations applicable to any claims asserted by the Stranges.\\nFinally, the Stranges assert that their \\\"execution of the notes and deeds of trust, instruments under seal, had the effect of preserving these claims for a ten-year period from and after August 10, 2000, the date of their execution.\\\" In support of this contention, the Stranges cite N.C. Gen. Stat. \\u00a7 1-47(2), which prescribes a ten year statute of limitations for actions \\\"[u]pon a sealed instrument.\\\" The Stranges have not, however, filed any claims or counterclaims, so that they have not filed a claim or counterclaim \\\"upon a sealed instrument,\\\" effectively rendering N.C. Gen. Stat. \\u00a7 1-47(2) inapplicable to their reimbursement claims.\\nAt bottom, the Stranges' reimbursement claims are based on monies allegedly advanced to Embassy Club and services provided to the corporation in the 1970s and 1980s. The Stranges concede that there is no written contract or express agreement providing for payment of these claims. Moreover, the Stranges do not contend that their reimbursement claims were asserted within a \\\"reasonable time.\\\" Instead, the Stranges assert that the applicable statute of limitations was tolled until 1998, when Ms. Bogovich sought corporate information from Mr. Strange. Even if one were to accept this portion of their argument, the record clearly shows that the Stranges have never filed a claim or counterclaim seeking reimbursement for these alleged advances and other obligations. Even if we were to treat the discovery responses provided by the Stranges as a \\\"claim,\\\" these responses were not provided until 2004, a six year period which even the Stranges do not claim to have been \\\"reasonable.\\\" The filing of Ms. Bogovich's civil action against the Stranges did not toll the statute of limitations relating to these reimbursement claims, and N.C. Gen. Stat. \\u00a7 1-47(2) does not apply in this instance. As a result, we conclude that Judge Balog did not err by concluding that the Stranges' reimbursement claims were barred by the applicable statute of limitations.\\n2. Other Reimbursement Claim Issues\\nIn addition, the Stranges argue that their failure to obtain approval for the reimbursement of the alleged advances and for the payments of the value of their services to the corporation does not preclude recovery of their claims on the grounds that \\\"they were fair to the corporation.\\\" As a result, the Stranges contend that Judge Balog erred by ruling that Mr. Strange's advances to the corporation \\\"were not shareholder loans, were not lawful debts of the corporation, and were not owed back to\\\" Mr. Strange. We do not, however, need to address this facet of the Stranges' argument in light of our conclusion that their reimbursement claims were barred by the statute of limitations.\\nIII. Conclusion\\nThus, for the reasons set forth above, we conclude that none of the Stranges' challenges to Judge Eagles' and Judge Balog's decisions have merit and that the Stranges are not entitled to relief on appeal. As a result, the challenged judgments and orders should be, and hereby are, affirmed.\\nAFFIRMED.\\nJudges McGEE and STROUD concur.\\n. The trial court instructed the jury, without objection by the Stranges, that Ms. Bogovich was entitled to recover at least nominal damages.\\n. Giles and Watkins are the two cases cited by the Stranges in support of their argument.\"}" \ No newline at end of file diff --git a/nc/4115440.json b/nc/4115440.json new file mode 100644 index 0000000000000000000000000000000000000000..82621d20cc9a3e97f145d7a05564d66ae40a4893 --- /dev/null +++ b/nc/4115440.json @@ -0,0 +1 @@ +"{\"id\": \"4115440\", \"name\": \"JACQUES A. DALLAIRE and FERNANDE DALLAIRE, Plaintiffs v. BANK OF AMERICA, N.A., HOMEFOCUS SERVICES, LLC, and LANDSAFE SERVICES, LLC, Defendants\", \"name_abbreviation\": \"Dallaire v. Bank of America, N.A.\", \"decision_date\": \"2012-12-18\", \"docket_number\": \"No. COA12-626\", \"first_page\": \"248\", \"last_page\": \"256\", \"citations\": \"224 N.C. App. 248\", \"volume\": \"224\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T01:54:13.249835+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges STROUD and HUNTER, JR. concur.\", \"parties\": \"JACQUES A. DALLAIRE and FERNANDE DALLAIRE, Plaintiffs v. BANK OF AMERICA, N.A., HOMEFOCUS SERVICES, LLC, and LANDSAFE SERVICES, LLC, Defendants\", \"head_matter\": \"JACQUES A. DALLAIRE and FERNANDE DALLAIRE, Plaintiffs v. BANK OF AMERICA, N.A., HOMEFOCUS SERVICES, LLC, and LANDSAFE SERVICES, LLC, Defendants\\nNo. COA12-626\\nFiled 18 December 2012\\n1. Appeal and Error \\u2014 preservation of issues \\u2014 argument abandoned\\nAppeal from a summary judgment for defendant Homefocus Services, LLC (later Landsafe Services, LLC) was abandoned where the entirety of plaintiffs\\u2019 brief was dedicated to allegations against defendant Bank of America.\\n2. Mortgages and Deeds of Trust \\u2014 refinanced home mortgage\\u2014 first priority loan \\u2014 duty of borrower and lender\\nThe trial court did not err by granting summary judgment for Bank of America (defendant) where there was no genuine issue of fact as to whether defendant owed plaintiffs a contractual duty to provide a first mortgage loan. The terms of the contract designated to plaintiffs the affirmative duty to assure that the lien had and maintained first priority and plaintiffs could establish no affirmative duty on the part of defendant to inform plaintiffs that the lien held second priority status.\\n3. Fiduciary Relationship \\u2014 lender and borrower \\u2014 interaction prior to loan \\u2014 summary judgment not proper\\nSummary judgment should not have been granted for defendant Bank of America in an action arising from a refinanced home mortgage where plaintiffs alleged breach of fiduciary duty. While uncommon, North Carolina law does leave room for the recognition of a fiduciary relationship between lender and borrower. In this case, plaintiffs did not receive outside advice and, when the facts are viewed in the light most favorable to plaintiffs, there is a question of fact as to whether the circumstances of the parties\\u2019 interaction prior to signing the loan gave rise to a fiduciary relationship.\\n4. Fraud \\u2014 negligent misrepresentation \\u2014 home refinancing\\u2014 summary judgment\\nSummary judgment should not have been granted for defendant Bank of America on the issue of whether defendant negligently misrepresented the priority a home refinancing loan would receive.\\n5. Mortgages and Deeds of Trust \\u2014 home refinancing \\u2014 statute not retroactive\\nThe trial court properly granted summary judgment for Bank of America (defendant) on a claim that defendant violated the Secure and Fair Enforcement Mortgage Licensing Act, N.C.G.S. \\u00a7 53-244.110 (2011), where plaintiffs\\u2019 claims arose from negotiations and a contract executed prior to the enactment of the statute. The legislature expressed a clear intent that the statute be applied prospectively.\\n6. Appeal and Error \\u2014 preservation of issues \\u2014 argument not sufficient\\nPlaintiffs abandoned an argument concerning the Mortgage Lending Act (MLA), N.C.G.S. \\u00a7 53-243.01 to -543.18 (2001) (repealed 2009), the predecessor to the current statute, by not arguing what the statutory standard was or how it was violated.\\nAppeal by Plaintiffs from judgment entered 14 February 2012 by Judge W. David Lee in Cabarrus County Superior Court. Heard in the Court of Appeals 29 November 2012.\\nFerguson, Scarbrough, Hayes, Hawkin & DeMay, P.A., by James E. Scarbrough, for the Plaintiff-Appellants.\\nMcGuire Woods, LLP, by Lia A. Lesner and Robert A. Muckenfuss, for Defendant-Appellees.\\nJerome N. Frank Legal Services Organisation, by J.L. Pottenger, Jr., Amicus Curiae.\", \"word_count\": \"3238\", \"char_count\": \"20188\", \"text\": \"BEASLEY, Judge.\\nJacques and Femande Dallaire (Plaintiffs) appeal from the trial court's entry of summary judgment in favor of Defendants. For the following reasons, we affirm in part and reverse and remand in part.\\nIn 2005, Plaintiffs filed Chapter 7 bankruptcy to relieve their personal liability on their debts. Through the bankruptcy proceedings, Plaintiffs were relieved of their personal liability on three mortgage liens held by two lenders against Plaintiffs' home. Defendant Bank of America held two of these liens: one, a deed of trust on a mortgage note in first priority status, in the original amount of $138,900 and a second, an equity line deed of trust in second priority status, in the original amount of $25,000. The third lien secured a business loan and was held by Branch Banking & Trust (BB&T) in the original amount of $241,449.37 in third priority status. All liens remained valid as against the property.\\nIn July 2007, Plaintiffs responded to Defendant's mailing solicitations for refinancing home mortgages and went to Defendant Bank of America's local branch to discuss a refinance mortgage for their home. Plaintiffs allege that they informed Defendant's agent fully with respect to their bankruptcy and remaining liens. Plaintiffs also allege that Defendant Bank of America's agent repeatedly assured them that a new refinancing loan would receive first priority status and advised them to increase the amount of the loan to pay off two car notes. Relying on this assurance and advice, and without seeking outside counsel, Plaintiffs applied for a refinancing loan in the amount of $166,000. They were approved and received roughly $24,000 in cash from the loan to repay their car notes. Overall, their monthly expenses were reduced.\\nThe Plaintiffs' loan application was for a first-mortgage lien. On the application, Plaintiffs disclosed that they had \\\"been obligated on [a] loan which resulted in foreclosure, transfer of title in lieu of foreclosure, or judgment[.]\\\" However, Plaintiffs checked \\\"No\\\" next to the disclosure asking whether they had \\\"been declared bankrupt within the past 10 years[.]\\\"\\nFollowing the application and in accordance with general procedure, Defendant Bank of America ordered a \\\"title search\\\" from its subsidiary, Defendant HomeFocus (now Landsafe Services). This \\\"title search\\\" showed the three liens held against Plaintiffs home. Defendant Bank of America employed LSI Title Agency (LSI), upon which Defendant employed to do \\\"curative title work[,]\\\" to assess the validity of the BB&T lien. LSI gathered information from Plaintiffs and noted that Plaintiffs advised LSI that the BB&T lien was discharged. LSI advised Defendant Bank of America that it was secure in moving forward with the loan. Defendant Bank of America did not have an attorney review the information and handled the full refinance process itself.\\nIn 2010, Plaintiffs attempted to sell their home and conducted a title search. The search revealed the priority status of the liens on the home: the BB&T lien now held first priority and the new Bank of America lien held second priority.\\nOn 15 December 2010, Plaintiffs filed the instant action. Plaintiffs alleged negligent misrepresentation, negligent title search, breach of contract, breach of fiduciary duty, and statutory violations. On 18 January 2011, Defendants filed a motion to dismiss for failure to state a claim. The trial court denied this motion on 21 February 2011. On 19 December 2011, Plaintiffs moved to join LSI Title Agency as an additional defendant. On 29 December 2011, Defendants filed a motion for summary judgment. On 14 February 2012, the trial court heard both motions and granted Defendants' motion for summary judgment but dismissed the action without prejudice as to the non-party LSI Title Agency. Plaintiffs appeal the dismissal.\\n\\\"Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that 'there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.' \\\" In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)).\\nWe first note that Plaintiffs attribute no breach of duty, negligent act, or legal wrong to Defendant Landsafe Services (formerly HomeFocus Services). The entirety of Plaintiffs' brief is dedicated to allegations against Defendant Bank of America. Consequently, we affirm summary judgment with respect to Landsafe Services (formerly HomeFocus Services). We also note that Plaintiffs did not argue that the trial court erred in granting summary, judgment on the claim of negligent title search. \\\"Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.\\\" N.C. R. App. P. 28(b)(6). This argument is thus abandoned.\\nI. Breach of Contract Claim\\nPlaintiffs first argue that the trial court erred in granting Defendants' motion for summary judgment because a genuine issue of material fact exists as to whether Defendant Bank of America owed Plaintiffs a contractual duty to provide a first mortgage loan. We disagree.\\n\\\"The elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract.\\\" Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000)(citation omitted).\\nHere, Plaintiffs make no clear allegations in their brief that a contract existed outside of the signed note and deed of trust to secure the loan. Thus, to establish a breach of contract, Plaintiffs must show that Defendant breached the duty undertaken in the express terms of the written loan contract between the parties. The terms of deed of trust include the following duties:\\nBorrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender, but only so long as Borrower is performing such agreement; (b) contests the lien in good faith by, or defends against enforcement of the lien in, legal proceedings which in Lender's opinion operate to prevent the enforcement of the lien while those proceedings are pending, but only until such proceedings are concluded; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Lender determines that any part of the Property is subject to a lien which can attain priority over this Security Instrument, Lender may give Borrower a notice identifying the lien. Within 10 days of the date on which that notice is given, Borrower shall satisfy the lien or take one or more of the actions set forth above in this Section 4.\\n(emphasis added). Thus, the terms of the contract designate the affirmative duty to assure that this lien has and maintains first priority to Plaintiffs as the borrowers. The only duty assumed by Defendant is a discretionary one in which Defendant may choose to notify Plaintiffs if it learns that this lien does not have first priority, but Defendant does not have to perform this action. Therefore, Plaintiffs can estab lish no affirmative duty on the part of Defendant to inform Plaintiffs that the lien held second priority status.\\nII. Tort Claims\\nPlaintiffs next argue that the trial court erred in granting summary judgment because a genuine issue of material fact exists as to whether a duty existed with respect to Plaintiffs' tort claims. We agree.\\nA. Breach of Fiduciary Duty\\nA fiduciary relationship \\\"may exist under a variety of circumstances; it exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence.\\\" Abbitt v. Gregory, 201 N.C. 577, 598, 160 S.E. 896, 906 (1931). Beyond the usual occurrence, such as that found between a lawyer and client, the relationship \\\"extends to any possible case in which a fiduciary relation exists in fact, and in which there is confidence reposed on one side, and resulting domination and influence on the other.\\\" Id. (citation omitted)(internal quotation marks omitted). \\\"Whether such a relationship exists is generally a question of fact for the jury.\\\" Carcano v. JBSS, LLC, 200 N.C. App. 162, 178, 684 S.E.2d 41, 53 (2009)(citation omitted).\\nWhile uncommon, North Carolina law does leave room for the recognition of a fiduciary relationship between lender and borrower.\\n[A]n ordinary debtor-creditor relationship generally does not give rise to such a special confidence: [t]he mere existence of a debtor-creditor relationship between [the parties does] not create a fiduciary relationship. This is not to say, however, that a bank-customer relationship will never give rise to a fiduciary relationship given the proper circumstances. Rather, parties to a contract do not thereby become each others' fiduciaries; they generally owe no special duty to one another beyond the terms of the contract and the duties set forth in the U.C.C.\\nBranch Banking & Trust Co. v. Thompson, 107 N.C. App. 53, 60-61, 418 S.E.2d 694, 699 (1992)(second and third alteration in original)(cita tions omitted)(internal quotation marks omitted). In Branch Banking & Trust Co., this Court found that no fiduciary duty existed where the borrowers relied on outside counsel and advice in addition to the representations of the lender. Id.\\nHere, Plaintiffs argue that special circumstances were present to give rise to a fiduciary relationship where the facts suggest that Defendant advised Plaintiffs that a first priority lien was possible and being provided. Plaintiffs allege that they openly discussed their circumstances with Defendant and that Defendant assured them they could obtain a first priority lien mortgage loan. We find this case distinguishable from Branch Banking & Trust Co. because Plaintiffs did not receive outside advice. Id. When the facts are viewed in the light most favorable to Plaintiffs, we find that there is a question of fact as to whether or not the circumstances of the parties' interaction prior to signing the loan give rise to a fiduciary relationship and consequently created a fiduciary duty for Defendant.\\nB. Negligent Misrepresentation\\nPlaintiffs argue that Defendant negligently misrepresented that the new loan would receive first priority status. \\\"The tort of negligent misrepresentation occurs when a party justifiably relies to his detriment on information prepared without reasonable care by one who owed the relying party a duty of care.\\\" Raritan River Steel Co. v. Cherry, Bekaert & Holland, 322 N.C. 200, 206, 367 S.E.2d 609, 612 (1988)(citations omitted). In addition, \\\"parties to a contract impose upon themselves the obligation to perform it; [however,] the law [also] imposes upon each of them the obligation to perform it with ordinary care . . . .\\\" See Toone v. Adams, 262 N.C. 403, 407, 137 S.E.2d 132, 135 (1964).\\nGiven our decision to remand on the issue of whether a fiduciary duty existed, we remand on this issue as well to determine, if a duty existed, whether Defendant negligently misrepresented the priority the loan would receive.\\nIII. The Secure and Fair Enforcement Mortgage Licensing Act\\nPlaintiffs argue that the trial court erred in dismissing the statutory claims under \\u00a7 53-244.110 of the Secure and Fair Enforcement Mortgage Licensing Act (the S.A.F.E. Act), N.C. Gen. Stat. \\u00a7 53-244.110 (2011), and its predecessor the Mortgage Lending Act (MLA), N.C. Gen. Stat. \\u00a7 53-243.01 to -543.18 (2001)(repealed 2009). We disagree.\\n\\\"It is a well-established rule of construction in North Carolina that a statute is presumed to have prospective effect only and should not be construed to have a retroactive application unless such an intent is clearly expressed or arises by necessary implication from the terms of the legislation.\\\" State v. Green, 350 N.C. 400, 404, 514 S.E.2d 724, 727 (1999)(citation omitted). \\\"The application of a statute is deemed 'retroactive' or 'retrospective' when its operative effect is to alter the legal consequences of conduct or transactions completed prior to its enactment.\\\" Gardner v. Gardner, 300 N.C. 715, 718, 268 S.E.2d 468, 471 (1980). For example, in Estridge v. Ford Motor Co., 101 N.C. App. 716, 718-19, 401 S.E.2d 85, 87 (1991), this Court refused to apply the North Carolina \\\"Lemon Law\\\" under the New Motor Vehicles Warranties Act, N.C. Gen. Stat. \\u00a7 20-351 to -351.10 (1990), to a plaintiff's vehicle lease where \\\"the rights and obligations involved in the plaintiffs claim [arose] out of the lease contract which was executed . . . prior to the time when the statute came into effect in North Carolina\\\" and there was no indication that the legislature intended such retroactive application. Estridge, 101 N.C. App. at 718, 401 S.E.2d at 86.\\nHere, it is not proper to retroactively apply the S.A.F.E. Act to the circumstances of Plaintiffs' loan with Defendant. The S.A.F.E. Act was enacted in July of 2009. Secure and Fair Enforcement Mortgage Licensing Act, ch. 374, 2009 N.C. Sess. Laws 681 (codified at N.C. Gen. Stat. \\u00a7 53-244.010 to 53-244.121 (2011)). The legislature expressed clear intent that it be applied prospectively:\\nExcept as otherwise provided by Section 5 of this act [(pertaining to individuals licensed under the old requirements and the effect of the Act on their licensure status)], this act becomes effective July 31, 2009, and applies to all applications for licensure as a mortgage loan originator, mortgage lender, mortgage broker, or mortgage servicer filed on or after that date.\\nch. 374, \\u00a7 6, 2009 N.C. Sess. Laws at 709. As in Estridge, Plaintiffs' claims arise out of the negotiations and contract executed prior to the enactment of this statute. In fact, Plaintiffs signed the contract in 2007, two years before the S.A.F.E. Act came into existence. Thus, it is inapplicable to the facts of this case and the trial court properly dismissed the claim that Defendant violated this Act.\\nWith respect to Plaintiffs' reliance on the MLA, we find Plaintiffs' claim abandoned. \\\"Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.\\\" N.C. R. App. P. 28(b)(6). Plaintiffs fail to provide any provision of the MLA that creates a statutory duty applicable to the case sub judice. Plaintiffs' brief merely alleges that the MLA had a similar purpose to the S.A.F.E. Act in protecting consumers in mortgage loan transactions. In order to vaguely establish that the MLA created duties of disclosure, Plaintiffs brief then cites Guyton v. FM Lending Servs., Inc., 199 N.C. App. 30, 681 S.E.2d 465 (2009), where this Court found the MLA created a duty for a lender's to notify the borrower that the property was in a flood plain. Id. at 39-44, 681 S.E.2d at 473-76. However, Plaintiffs fail to provide any argument as to how that case or the MLA itself directly apply to the case sub judice. Plaintiffs' mere statement that \\\"issues of material fact exist as to whether [Defendant] violated its statutory standards of conduct\\\" is insufficient where there is no argument as to what that statutory standard is or how it was violated. This Court will not make the argument for Plaintiffs.\\nAffirmed in part, Reversed and Remanded in part.\\nJudges STROUD and HUNTER, JR. concur.\\n. In their briefs, both parties refer to the research performed by Defendant HomeFocus (now LandSafe Services) as a \\\"title search.\\\" We have placed this language in quotations because a title search in North Carolina is an act which constitutes the practice of law as defined by N.C. Gen. Stat. \\u00a7 84-2.1 (2011). We also note that corporations are prohibited from practicing law. See N.C. Gen. Stat. \\u00a7 84-5 (2011).\\n. Because this leaves only Defendant Bank of America as a defendant in this action, this opinion will use the term \\\"Defendant\\\" moving forward to reference Defendant Bank of America.\\n. Plaintiffs allude to the possibility that Defendant's refinancing solicitations or subsequent negotiations constituted an offer but provide nothing specific allowing this Court to determine that a clear and definite offer was made or accepted prior to the written contract signed by the parties.\\n. Although Plaintiffs' complaint alleges in the alternative that they were intended third-party beneficiaries of the contract between LandSafe and Bank of America, Plaintiffs do not advance this argument on appeal. Accordingly, we need not address it.\\n. Specifically, a question of fact exists as to whether or not Defendant sought to give legal advice to Plaintiffs. In either event, when a financial institution undertakes to provide a customer with a service beyond that inherent in the creditor-debtor relationship, it must do so reasonably and with due care.\"}" \ No newline at end of file diff --git a/nc/4168566.json b/nc/4168566.json new file mode 100644 index 0000000000000000000000000000000000000000..26332916db10d421a1cb7b90a86ae2010d903b78 --- /dev/null +++ b/nc/4168566.json @@ -0,0 +1 @@ +"{\"id\": \"4168566\", \"name\": \"JAMIE MOORE, Employee, Plaintiff v. SULLBARK BUILDERS, INC., Employer; BUILDERS MUTUAL INSURANCE CO., Carrier Defendant\", \"name_abbreviation\": \"Moore v. Sullbark Builders, Inc.\", \"decision_date\": \"2009-08-04\", \"docket_number\": \"No. COA08-1348\", \"first_page\": \"621\", \"last_page\": \"631\", \"citations\": \"198 N.C. App. 621\", \"volume\": \"198\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T18:28:00.561923+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges ELMORE and STEELMAN concur.\", \"parties\": \"JAMIE MOORE, Employee, Plaintiff v. SULLBARK BUILDERS, INC., Employer; BUILDERS MUTUAL INSURANCE CO., Carrier Defendant\", \"head_matter\": \"JAMIE MOORE, Employee, Plaintiff v. SULLBARK BUILDERS, INC., Employer; BUILDERS MUTUAL INSURANCE CO., Carrier Defendant\\nNo. COA08-1348\\n(Filed 4 August 2009)\\n1. Workers\\u2019 Compensation\\u2014 affirmative defense \\u2014 intoxication \\u2014 test results did not indicate level \\u2014 marijuana metabolites\\nThe Industrial Commission did not err in a workers\\u2019 compensation case by concluding plaintiff\\u2019s injuries were compensable and that N.C.G.S. \\u00a7 97-12 did not bar plaintiff\\u2019s claim even though the evidence showed defendant tested positive on the date of the injury for cannabinoids, a metabolite of marijuana, because; (1) the competent evidence before the Commission supported its conclusion that plaintiff\\u2019s injury was not a result of intoxication by marijuana; (2) the Commission is the sole judge of the weight and credibility of conflicting evidence, and it was within the Commission\\u2019s discretion to determine that a doctor\\u2019s opinion that plaintiff\\u2019s toxicology results obtained during testing at the hospital were insufficient to establish plaintiff was under the influence of marijuana was more credible than another doctor\\u2019s conflicting opinion; (3) although a rebuttable presumption of intoxication may be established as a result of a positive medical test pursuant to N.C.G.S. \\u00a7 97-12, such tests must \\u201cbe in a manner generally acceptable to the scientific community and consistent with applicable State and federal law, and both doctors testified that the test performed' by the hospital was not completed for forensic purposes and should only be used for medical purposes; (4) a doctor testified that the test results did not indicate the level of marijuana metabolites, thus only allowing the conclusion that marijuana was in plaintiff\\u2019s system at the time of the injury; and (5) defendant\\u2019s argument that the award of compensation to a plaintiff injured while under the influence of a controlled substance is against public policy need not be addressed based on competent evidence that defendant was not intoxicated at the time of his injury.\\n2. Workers\\u2019 Compensation\\u2014 disability \\u2014 incapable of work or earning same wages\\nThe Industrial Commission did not err in a workers\\u2019 compensation case by determining that plaintiff was entitled to temporary total disability benefits because: (1) the medical evidence shows that plaintiff was physically incapable of work in any employment after his injury; (2) there was competent evidence to show that plaintiff was incapable after his injury of earning the same wages he earned before his injury in any other employment; (3) plaintiff\\u2019s attempt to return to work with defendant and his unsuccessful attempt to work with his former employer show that he made a reasonable effort to obtain employment but was incapable of earning the same wages in any other employment; and (4) plaintiff\\u2019s limited education, his past work in carpentry and construction, and his physical condition which caused him continuing pain and restricted his motion, his doctor\\u2019s restrictions of no lifting over forty pounds and no repetitive bending made it futile for him to seek other employment.\\nAppeal by defendant from Opinion and Award entered 14 July 2008 by the North Carolina Industrial Commission. Heard in the Court of Appeals 25 March 2009.\\nLaw Offices of Brian Peterson, by Brian Peterson, for plaintiff-appellee.\\nLewis & Roberts, PLLC, by Jeffrey A. Misc.heimer, for defendant-appellants.\", \"word_count\": \"3634\", \"char_count\": \"22810\", \"text\": \"BRYANT, Judge.\\nSullbark Builders, Inc. (defendant) appeals from an Opinion and Award determining that defendant failed to meet its burden of proof to successfully assert an affirmative defense pursuant to N.C. Gen. Stat. \\u00a7 97-12. We affirm.\\nFacts\\nJamie Moore (plaintiff) began working for defendant in September of 2005 as a trim carpenter. Plaintiff's primary duties included installing interior trim, installing crown and window molding, installing hardwood floors, and preparing stair railings. To perform his duties, plaintiff had to transport job-related materials around the building site. On 7 December 2005, plaintiff was assisting another employee when plaintiff fell approximately 12 feet to. the bottom of a retaining wall. Plaintiff lost his balance when his ankle twisted while carrying two-by-twelve boards on his shoulders.\\nAfter his fall, plaintiff was transported to Mission Hospitals where he was diagnosed with a thoracic spine fracture, pulmonary contusion, and dehydration. Plaintiff was admitted to the hospital and submitted to a urine toxicology screening and other tests. The urine screening, testing for Ethanol and six drugs, indicated Plaintiffs urine contained cannabinoids and opiates. The toxicology report did not indicate the levels or concentrations of the detected substances.\\nOn 14 December 2005, defendant filed a Form 61 Denial of Workers' Compensation Claim on the basis that plaintiff's claim was barred by N.C. Gen. Stat. \\u00a7 97-12 because plaintiff was intoxicated at the time of the accident. Plaintiff filed a request for hearing and the matter was heard on 9 October 2006.\\nAt the hearing, the deposition testimony of Drs. Shayne Cox Gad (Dr. Gad) and Andrew Mason (Dr. Mason) were presented. An Opinion and Award was filed 18 December 2007 concluding that defendant failed to meet its burden of proof to assert the defense of intoxication. Defendant appealed to the Full Commission (the Commission). On 14 July 2008, the Commission filed an Opinion and Award adopting the Deputy Commissioner's Award with modifications. Defendant appeals.\\nOn appeal, defendant argues: (I) the Full Commission committed reversible error by finding and concluding plaintiff's claim for compensation was not barred by N.C. Gen. Stat. \\u00a7 97-12; (II) it is against public policy to award compensation to plaintiff who was injured at work while intoxicated; and (III) the Full Commission erred by finding and concluding plaintiff was entitled to benefits under the Workers' Compensation Act.\\nStandard, of Review\\n\\\"Our review of the Commission's opinion and award is limited to determining whether competent evidence of record supports the find ings of fact and whether the findings of fact, in turn, support the conclusions of law.\\\" Rose v. City of Rocky Mount, 180 N.C. App. 392, 395, 637 S.E.2d 251, 254 (2006), review denied, 361 N.C. 356, 644 S.E.2d 232 (2007). \\\"Under our Workers' Compensation Act, the Commission is the fact finding body. The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\\\" Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (citations and quotations omitted). The Commission's findings \\\"are conclusive on appeal when supported by competent evidence, even though there is evidence that would have supported findings to the contrary.\\\" Hollman v. City of Raleigh, 273 N.C. 240, 245, 159 S.E.2d 874, 877 (1968).\\nI\\nDefendant argues the Commission erred by concluding plaintiff's injuries were compensable and that N.C. Gen. Stat. \\u00a7 97-12 did not bar plaintiff's claim. We disagree.\\nUnder N.C.G.S. \\u00a7 97-12,\\n[n]o compensation shall be payable [to an employee] if the injury or death to the employee was proximately caused by:\\n(2) His being under the influence of any controlled substance listed in the North Carolina Controlled Substances Act, G.S. 90-86, et seq., where such controlled substance was not by prescription by a practitionerf.]\\nN.C.G.S. \\u00a7 97-12(2) (2007).\\nThe statute further provides:\\n\\\"Intoxication\\\" and \\\"under the influence\\\" shall mean that the employee shall have consumed a sufficient, quantity of intoxicating beverage or controlled substance to cause the employee to lose the normal control of his or her bodily or mental faculties, or both, to such an extent that there was an appreciable impairment of either or both of these faculties at the time of the injury.\\nA result consistent with \\\"intoxication\\\" or being \\\"under the influence\\\" from a blood or other medical test conducted in a manner generally acceptable to the scientific community and consistent with applicable State and federal law, if any, shall create a rebut-table presumption of impairment from the use of alcohol or a controlled substance.\\nId. \\\"[B]eing under the influence of a controlled substance [is an] affirmative defense which place [s] the burden of proof on the employer in a claim for Workers' Compensation. [This defense] will be a proximate cause of the employee's death or injury if it is a cause in fact.\\\" Harvey v. Raleigh Police Dep't., 85 N.C. App. 540, 545, 355 S.E.2d 147, 151 (1987).\\nThe evidence presented in this case showed defendant tested positive on the date of the injury for cannabinoids, a metabolite of marijuana. The Commission made the following findings regarding plaintiff's positive test results:\\n13. Plaintiff had a urine toxicology screen a few hours after arriving at Mission Hospitals. The urine toxicology screen results indicated a positive result for cannabinoids and opiates. The results did not provide any numeric levels of concentrations. No confirmatory tests were performed.\\n17. Dr. Mason testified, \\\"it's well recognized in the scientific community, urine tests cannot be used to establish impairment.\\\" Dr. Mason provided a list of ten quotes taken from scientific articles of forensic toxicology that support his statement that \\\"even competently performed forensic urine tests, by themselves, do not establish impairment.\\\"\\n18. Dr. Gad testified that to determine impairment, the drug test had to provide the levels of concentrations in order to be able to give an opinion about impairment. Dr. Gad stated: \\\"If the substance is metabolite for cocaine or marijuana, if you\\u2014 those metabolites have minimal or very limited activity. And if you just know that you have some of it in the urine, you can't\\u2014 you can't speak .to impairment.\\\" Dr. Gad's testimony shows that the test results in this case, because it only reported a positive result for marijuana, merely showed that \\\"at some point, he used marijuana.\\\"\\n19. Following the urine toxicology results, the medical record in question states \\\"positive results have not been verified by a second confirmatory procedure. Unconfirmed results should not be used for nonmedical purposes.\\\" Both toxicologists agree that the urine toxicology test in question was a test completed for medical purposes only, not valid for forensic purposes. Both toxicologists agree that a urine toxicology test that does not provide an actual level for cannabinoid concentration does not address impairment and therefore cannot be used to show impairment.\\n20. Both Dr. Mason and Dr. Gad testified that the psychoactive effects of marijuana remain active for a limited period of time. Dr. Mason testified that it was usually up to four hours, while Dr. Gad testified that it was between four and six hours, depending on the dose. Even if the Plaintiff had smoked marijuana just before going to work, any psychoactive effects would have faded before the work accident.\\n23. The testimony of those who were with the Plaintiff on the day of the accident confirm that he did not consume marijuana at any time during the work period on the day he was injured. There is no credible evidence that on the day of plaintiffs work injury, Plaintiff was under the influence of marijuana or other controlled substances. This conclusion is consistent with the medical records. The greater weight of the evidence shows no indication that Plaintiff was impaired or intoxicated at the time of his work related accident.\\n24. Plaintiff's fall at work was caused by an accidental misstep of the Plaintiff and the circumstances of the work environment, where the railing he attempted to use to steady himself gave way. The greater weight of the credible and competent evidence fails to establish that the accident which caused plaintiff's injuries was proximately caused by plaintiff being under the influence of any controlled substance.\\n28. Based on Plaintiff's work experience and vocational and educational limitations, it would have been futile for Plaintiff to seek to obtain physically suitable employment during the time that he was under restrictions of part-time work with no lifting over twenty-five pounds.\\n29. Defendant did not terminate the Plaintiff as an employee. In May 2006, the owners of Defendant discussed with the Plaintiff the possibility of his returning to limited part-time work activities with Defendant. Defendant would not make accommodations for the Plaintiff to return to work with them once the Plaintiff was released to limited part-time work. Plaintiff has not performed any work for Defendant since the date of his injury, December 7, 2005.\\nThe Commission then concluded:\\n2. The positive toxicology result from Mission Hospitals is not a result that would establish intoxication or being under the influence, such as to create a presumption of impairment. However, even if such a presumption of impairment were created, Plaintiff has presented sufficient competent testimony through toxicologist, Dr. Andrew P. Mason, which rebuts any such presumption. Defendants' assertion of such defenses are therefore rejected. N.C. Gen. Stat. \\u00a7 97-12.\\nIn the present case, the competent evidence before the Commission supported its conclusion that plaintiff's injury was not a result of intoxication by marijuana. As the Commission is the sole judge of the weight and credibility of conflicting evidence, it was within the Commission's discretion to determine that Dr. Mason's opinion that plaintiff's toxicology results obtained during testing at the hospital were insufficient to establish plaintiff was under the influence of marijuana was more credible than Dr. Gad's conflicting opinion. Although a rebuttable presumption of intoxication may be established as a result of a positive medical test pursuant to N.C.G.S. \\u00a7 97-12, such tests must \\\"be in a manner generally acceptable to the scientific community and consistent with applicable State and federal law.\\\" Id. Both Dr. Mason and Dr. Gad testified that the test performed by the hospital was not completed for forensic purposes, and should only be used for medical purposes. Also, Dr. Gad testified that the test results did not indicate the level of marijuana metabolites, only allowing the conclusion that marijuana was in plaintiff's system at the time of the injury. The test results were insufficient to establish that plaintiff was \\\"impaired\\\" and did not have \\\"the normal control of his or her bodily or mental faculties, or both, to such an extent that there was an appreciable impairment of either or both of these faculties at the time of the injury.\\\" Id.\\nThe Commission's conclusion that defendant failed to meet its burden of proof that plaintiff was under the influence of a controlled substance at the time of his injury was supported by competent evidence in the record. Therefore, this assignment of error is overruled.\\nII\\nDefendant argues that awarding compensation to a plaintiff injured while under the influence of a controlled substance is against the public policy of the State, however, we decline to address this argument because we have determined the Commission's conclusion that plaintiff was not intoxicated at the time of his injury was supported by competent evidence in the record. Therefore, this assignment of error is overruled.\\nIll\\nDefendant argues the Commission erred by finding and concluding plaintiff was entitled to benefits under the Worker's Compensation Act because plaintiff did not produce any competent evidence to establish the existence of his disability. We disagree.\\nIn order to support a conclusion of disability, the Commission must find:\\n1. that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment,\\n2. that plaintiff was incapable after his injury of earning the same wages he earned before his injury in any other employment,\\n3. that this individual's capacity to earn was caused by plaintiff's injury.\\nHilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). The burden is on the plaintiff to prove both the existence, of his disability and its degree. Id.\\nThe Full Commission's Conclusion of Law number 6 states:\\nAs a consequence of his injuries sustained in the accident of December 7, 2005, Plaintiff was unable to earn wages in the same or any other employment and was totally disabled beginning December 7, 2005 and continuing at least through the hearing date of October 9, 2006. Plaintiff is entitled to have Defendants pay him temporary total disability compensation at the rate of $357.98 per week during this period. N.C. Gen. Stat. \\u00a7 97-29.\\nPlaintiff did not work from the date of his injury on 7 December 2005 through the date of the Full Commission hearing on 9 October 2006 with the exception of two days he unsuccessfully tried to work painting. Plaintiff has also shown that he is entitled to temporary total disability compensation during this time by satisfying the test for disability set out in Hilliard.\\nFirst, the burden is on the employee to show that he is unable to earn the same wages he had earned before the injury in the same employment. Hilliard at 595, 290 S.E.2d at 683. The employee may meet this burden in one of four ways: (1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment, (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment, (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment, or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury. Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (internal citations omitted).\\nThe medical evidence shows that plaintiff was physically incapable of work in any employment after his injury. When plaintiff was released from the hospital on 16 December 2005, the Discharge Instructions regarding \\\"Returning to Work/School/Day Care\\\" stated \\\"when your doctor says it is okay,\\\" and plaintiff was discharged to home rest, with only light activity until follow-up. Over the next several months, plaintiff continued visiting his treating physician, Dr. Lytle, and on 17 March 2006, Dr. Lytle wrote that plaintiff was \\\"written out of work until next appointment on 5/16/06.\\\" Although Dr. Lytle noted on 22 May 2006 that plaintiff could resume work on a limited basis up to four hours per day with no lifting greater than forty pounds and no repetitive bending, on 18 July 2006, Dr. Lytle wrote that plaintiff \\\"has been unable to return to his work, as they do not have anything for him to do on a short-term basis and also feel like he's too high risk to continue to work.\\\" Because plaintiff was not able to afford a follow-up visit, the appointment on 18 July 2006 was the last time he was treated by Dr. Lytle. At that time, Dr. Lytle's medical record established that plaintiff was incapable of work \\\"at the current time\\\" and that he would write plaintiff a work release to return to work \\\"depending on how he improves.\\\" Thus, there is competent evidence to support the Full Commission's conclusion that plaintiff was physically incapable of work in any employment.\\nThere is also competent evidence to show that plaintiff was incapable after his injury of earning the same wages he earned before his injury in any other employment. Plaintiff attempted to return to work with defendant, but because he refused to sign a release form stating that he would not file any legal action against defendant if he was injured again on the job, he did not accept the part-time position offered. He also attempted to obtain employment with a former employer who made special accomodations for him. After working only two days, plaintiffs former employer released plaintiff because he was physically unable to do the work. Plaintiff's attempt to return to work with defendant and his unsuccessful attempt to work with his former employer show that he made a reasonable effort to obtain employment but was incapable of earning the same wages in any other employment.\\nAdditionally, plaintiff was limited to lifting no more than forty pounds and no repetitive bending because of his .injury. These restrictions hindered him from any work in carpentry, construction, or painting. This is supported by the evidence that neither defendant nor plaintiff's former employer had work to .accommodate plaintiff's restrictions. Thus, plaintiff's incapacity to earn the same wages was caused by his work injury.\\nPlaintiff has met his burden of proving his disability because he satisfies each prong of the test for disability set out in Hilliard. Therefore, this conclusion of law is supported by competent evidence.\\nThe Full Commission's conclusion of law number 7 states:\\nPlaintiff is entitled to have Defendants pay him temporary total disability compensation or temporary partial disability compensation until such time as Plaintiff is able to return to work at the same or greater wages than his weekly compensation rate. Therefore, unless the parties reach a private resolution of this matter, and until further agreement of the parties or order of the Commission, Defendants shall continue to pay Plaintiff total disability compensation. N.C. Gen. Stat. 97-29.\\nTo earn his pre-injury earnings, plaintiff needed to find employment that paid him at or near $26.80 per hour and allowed him to work only four hours per day \\u2014 the amount of time to which he was restricted by his doctor. Because of plaintiff's limited education, his past work in carpentry and construction, and his physical condition which caused him continuing pain and restricted his motion, his doctor's. restrictions of no lifting over forty pounds and no repetitive bending made it futile for him to seek other employment. This determination of futility takes into account plaintiff's work experience, educational and vocational limitations, and his average weekly wage to conclude that plaintiff could not obtain suitable employment dur ing the time he was under his doctor's restrictions. Therefore, this conclusion of law is supported by competent evidence.\\nBecause there is substantial and competent evidence to support the Full Commission's findings of fact and conclusions of law that plaintiff was entitled to benefits under the Worker's Compensation Act, this assignment of error is overruled. For the foregoing reasons, the Order and Award of the Full Commission is affirmed.\\nAffirmed.\\nJudges ELMORE and STEELMAN concur.\"}" \ No newline at end of file diff --git a/nc/4175275.json b/nc/4175275.json new file mode 100644 index 0000000000000000000000000000000000000000..a14c802cdba83c5d997a5af9325957b9abcd780d --- /dev/null +++ b/nc/4175275.json @@ -0,0 +1 @@ +"{\"id\": \"4175275\", \"name\": \"STATE OF NORTH CAROLINA v. CHARLES DANIEL FRALEY\", \"name_abbreviation\": \"State v. Fraley\", \"decision_date\": \"2010-02-16\", \"docket_number\": \"No. COA09-785\", \"first_page\": \"457\", \"last_page\": \"468\", \"citations\": \"202 N.C. App. 457\", \"volume\": \"202\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T00:09:50.395926+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges WYNN and BEASLEY concur.\", \"parties\": \"STATE OF NORTH CAROLINA v. CHARLES DANIEL FRALEY\", \"head_matter\": \"STATE OF NORTH CAROLINA v. CHARLES DANIEL FRALEY\\nNo. COA09-785\\n(Filed 16 February 2010)\\n1. Sexual Offenses\\u2014 solicitation of child by means of computer for purpose of committing unlawful sex act \\u2014 motion to dismiss \\u2014 sufficiency of evidence\\nA de novo review revealed the trial court did not err by denying defendant\\u2019s motion to dismiss the charge of solicitation of a person believed to be a child by means of a computer for the purpose of committing an unlawful sex act under N.C.G.S. \\u00a7 14-202.3(a) based on alleged insufficient evidence that defendant \\u201centiced or advised\\u201d the undercover detective to meet with him. Defendant\\u2019s words, including his entire online and telephone conversations, fell within these definitions and accurately described his course of conduct.\\n2. Evidence\\u2014 cross-examination \\u2014 opinion testimony \\u2014 invited error\\nThe trial court did not commit plain error in a case involving the solicitation of a person believed to be a child by means of a computer for the purpose of committing an unlawful sex act by allowing a detective to give opinion testimony that defendant was going to have sex with a fourteen-year-old. Even assuming the elicited statements were error, defendant cannot be prejudiced .by them as a matter of law when he invited them during cross-examination.\\n3. Constitutional Law\\u2014 effective assistance of counsel \\u2014 failing to renew motion to dismiss \\u2014 eliciting and failing to move to strike testimony\\nDefendant did not receive ineffective assistance of counsel based on his trial counsel\\u2019s failing to renew his motion to dismiss at the close of all evidence and by eliciting and failing to move to strike a detective\\u2019s lay opinion testimony. There was no reasonable probability that a different outcome would have resulted absent the alleged errors.\\n4. Appeal and Error\\u2014 preservation of issues \\u2014 failure to argue\\nAssignments of error defendant failed to argue in his brief were deemed abandoned under N.C. R. App. P. 28(b)(6).\\nAppeal by defendant from judgment entered 17 February 2009 by Judge W. Osmond Smith in Wake County Superior Court. Heard in the Court of Appeals 8 December 2009.\\nAttorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State.\\nMark Montgomery, for defendant-appellant.\", \"word_count\": \"4529\", \"char_count\": \"26671\", \"text\": \"CALABRIA, Judge.\\nCharles Daniel Fraley (\\\"defendant\\\") appeals a judgment entered upon a jury verdict finding him guilty of soliciting a person the defendant believed to be a child by means of a computer for the purpose of committing an unlawful sex act. We find no error.\\nI. BACKGROUND\\nOn 7 December 2007, defendant, a married father of a nine-year-old daughter, logged on to the Yahoo Internet chat room titled NC Romance (\\\"NC Romance\\\"). Defendant did not log on using his real name, but instead used the pseudonym \\\"moonrakerlrain.\\\" Detective Kelly Marshburn (\\\"Detective Marshburn\\\"), a cyber crimes detective with the Raleigh Police Department (\\\"RPD\\\"), also logged on to NC Romance that day. As part of her duties with the RPD, Detective Marshburn signed on to NC Romance as \\\"cassia dutra\\\" (\\\"Cassia\\\"). Detective Marshburn adopted the persona of Cassia, a 14 year-old-girl who lived with her mother in Raleigh near Crabtree Valley Mall (\\\"the mall\\\"), in order to see if someone would solicit a child for sex using a computer.\\nAt 2:50 p.m. on 7 December 2007, defendant made his initial contact with Cassia in the NC Romance chat room. By 3:00 p.m., defendant asked Cassia if she was \\\"looking for a hook up.\\\" At 3:08 p.m., defendant asked Cassia if she would \\\"like [to] meet and have good sex,\\\" and then asked Cassia to send him a picture of herself over the Internet. Cassia sent defendant three pictures. The pictures were actually photographs of a female coworker at the RPD taken when the coworker was 14 years old. The coworker had given Detective Marshburn permission to use the photos. When defendant received the pictures, he replied to Cassia, \\\"you look pretty.\\\" Defendant then sent two pictures of himself to Cassia. In one photo, defendant was pictured wearing only a small bathing suit and sunglasses, and in the other, defendant was wearing military fatigues. Defendant then told Cassia, \\\"you look hot to [sic] . do you want to get together?\\\" When Cassia asked how old he was, he replied that he was 32 and asked how old Cassia was. When she answered that she was 14, defendant stated that he thought she was older. However, defendant continued to chat with Cassia online for nearly 30 minutes. During this time, defendant asked Cassia where she lived, joked that he could \\\"hook up\\\" with her and her mother, and suggested meeting Cassia in person so they could \\\"go somewhere and park.\\\"\\nOn 12 December 2007, defendant logged on to NC Romance under the pseudonym \\\"dan claussen.\\\" Defendant chatted with Cassia for nearly 50 minutes. During the chat, Cassia again identified herself as being 14 years old. Defendant expressed interest in meeting Cassia and asked her, \\\"what do you want to do when we meet?\\\" When Cassia asked what defendant wanted to do, he answered, \\\"that is up to you sweetie[.]\\\" Defendant suggested that he and Cassia meet at 1:00 p.m. on 13 December, and Cassia agreed. He stated, \\\"I get the feeling that you are wanting to talk about sex[.]\\\" Cassia said \\\"sure,\\\" and defendant then stated that sex was something he would talk about in person. Defendant then asked Cassia if she was a virgin and also asked for her telephone number. Cassia gave him a number that, unbeknownst to defendant, was a specific undercover number the RPD would use for Detective Marshbum's cases. Defendant said he would call Cassia later that evening, and he and Cassia also agreed to meet at the food court at the mall the next day. On 13 December 2007, defendant sent Cassia an offline instant message stating, \\\"hey sweetie . sorry I didn't call, I will still be there at 1 today and I hope to see you there, bye for now sweetie.\\\" However, defendant and Cassia did not meet that day.\\nAfter the online chat of 12 December 2007, Detective Marshburn was able to identify the IP address of \\\"moonrakerlrain\\\" and \\\"dan claussen,\\\" and tracked it to a military base. Detective Marshburn then obtained a subpoena for the Internet carrier service, which identified defendant as the subscriber who had been chatting under those pseudonyms. On 16 December 2007, defendant sent three offline instant messages to Cassia. In one, he asked if they could meet the next night. Cassia did not respond and did not meet with defendant on 17 December. On 20 December 2007, defendant sent a chat message to Cassia stating that he was going to be away for Christmas and would \\\"catch back up\\\" with Cassia after that. Cassia did not respond.\\nOn 9 January 2008, defendant called Cassia on the telephone. During the course of the conversation, defendant told Cassia that she had a nice voice, and stated that he would come see her on Tuesday. He also stated that he could get in trouble for talking to Cassia because she was so young. When Cassia stated that she was nervous because she \\\"never did this before,\\\" defendant replied that he had done so once, \\\"but not with someone this young,\\\" adding that he and his previous paramour \\\"just kissed.\\\" When Cassia asked if defendant liked younger girls, he replied in the affirmative because \\\"[t]hey just look better, feel better.\\\" Defendant and Cassia agreed to meet in person at the food court at the mall, and agreed to chat more online so that Cassia could tell defendant \\\"everything that [she] want[ed] to do.\\\"\\nDefendant and Cassia engaged in an online chat that day that lasted an hour. Defendant stated that he was still interested in meeting Cassia in person and asked again for her phone number, which she gave him. Defendant told Cassia that she \\\"sound[ed] very sexy\\\" and asked her \\\"what all [she] want[ed] to get into\\\" when he saw her. When Cassia asked if they were going to kiss, defendant replied, \\\"if you want,\\\" and stated, \\\"we can do more if you want.\\\" Defendant then asked if Cassia was \\\"turned on,\\\" and told her, \\\"I want you on top of me[.]\\\" When Cassia asked, \\\"like sex,\\\" defendant replied, \\\"yeah.\\\" Defendant agreed to meet Cassia that afternoon. Cassia stated that she would be wearing her pink New York Yankees baseball cap. However, they did not meet. Defendant sent a chat message to Cassia stating that the reason he could not meet was because he locked his keys in his vehicle.\\nQn 15 January 2008, defendant sent an offline instant message to Cassia stating that he would meet her at 9:30 that morning. Later that morning, defendant and Cassia agreed that they would meet at 11:30 a.m. at the food court at the mall. At 10:00 that morning, Detective Marshburn was sitting at a table in the food court of the mall. Detective Regina Corcoran (\\\"Detective Corcoran\\\") of the RPD portrayed Cassia. Detective Corcoran was sitting at another table in the food court approximately 25 feet from Detective Marshburn. Detective Corcoran was wearing jeans, a sweatshirt, and a pink New York Yankees baseball cap and was pretending to listen to an Ipod. As defendant entered the food court and sat down across from Detective Corcoran, Detective Marshburn and Sergeant Gary Hinnant (\\\"Sergeant Hinnant\\\") of the RPD approached defendant and asked to speak with him. At that point, defendant stated, \\\"I knew it.\\\"\\nDefendant was arrested and indicted on a charge of solicitation of a child by computer to commit an unlawful sex act. The trial commenced on 17 February 2009. At the close of the State's evidence, defendant moved to dismiss the charge, and the trial court denied the motion. Defendant then presented evidence. There is nothing in the record or transcript showing defendant renewed his motion at the' close of all the evidence. On 19 February 2009, the jury returned a verdict of guilty. The trial court then sentenced defendant to a minimum term of four months to a maximum term of five months in the custody of the North Carolina Department of Correction and ordered defendant to register as a sex offender upon his release. Defendant appeals.\\nII. MOTION TO DISMISS\\nDefendant argues that the trial court erred in denying his motion to dismiss. We disagree.\\nAs an initial matter, we note that defendant made a motion to dismiss at the conclusion of the State's case, but there is nothing in the record showing that he renewed his motion at the conclusion of all the evidence. N.C. R. App. P. 10(b)(3) (2009) states:\\nA defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial. If a defendant makes such a motion after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal or judgment in case of nonsuit made at the close of State's evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.\\nGenerally, if a defendant failed to renew his motion to dismiss after he presented evidence, he is precluded from challenging the denial of his motion to dismiss on appeal. State v. Brunson, 187 N.C. App. 472, 476, 653 S.E.2d 552, 555 (2007). \\\"However, pursuant to N.C. R. App. P. 2, we will hear the merits of defendant's claim despite the rule violation because defendant also argues ineffective assistance of counsel based on counsel's failure to make the proper motion to dismiss.\\\" State v. Gayton-Barbosa,-N.C. App.-,-, 676 S.E.2d 586, 593 (2009).\\nWe review a trial court's denial of a motion to dismiss criminal charges de novo, to determine \\\"whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense.\\\" State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). \\\"Substantial evidence is evidence that a reasonable mind might find adequate to support a conclusion.\\\" State v. Hargrave,-N.C. App.-, \\u2014\\u2022, 680 S.E.2d 254, 261 (2009) (citation omitted). \\\"The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom. .\\\" Powell, 299 N.C. at 99, 261 S.E.2d at 117. \\\"[C]ontradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve[.]\\\" State v. Prush, 185 N.C. App. 472, 478, 648 S.E.2d 556, 560 (2007). \\\" 'The test of the sufficiency of the evidence on a motion to dismiss is the same whether the evidence is direct, circumstantial, or both. All evidence actually admitted, both competent and incompetent, which is favorable to the State must be considered.' \\\" State v. Israel, 353 N.C. 211, 216, 539 S.E.2d 633, 637 (2000) (quoting State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984)). \\\"In addition, the defendant's evidence should be disregarded unless it is favorable to the State or does not conflict with the State's evidence.\\\" State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (citation omitted).\\nThe crime of solicitation of a child by computer to commit an unlawful sex act is defined as follows:\\nA person is guilty of solicitation of a child by a computer if the person is 16 years of age or older and the person knowingly, with the intent to commit an unlawful sex act, entices, advises, coerces, orders, or commands, by means of a computer, a child who is less than 16 years of age and at least 3 years younger than the defendant, or a person the defendant believes to be a child who is less than 16 years of age and who the defendant believes to be at least 3 years younger than the defendant, to meet with the defendant or any other person for the purpose of committing an unlawful sex act. Consent is not a defense to a charge under this section.\\nN.C. Gen. Stat. \\u00a7 14-202.3(a) (2007).\\nIn the instant case, defendant was 32 years old and Cassia stated she was 14 years of age. On 7 December 2007, defendant and Cassia engaged in a chat on NC Romance. During the chat, defendant asked Cassia if she was \\\"looking for a hook up.\\\" When Cassia responded that she liked to \\\"hang out and have fun,\\\" defendant asked if she was into \\\"anything sexual\\\" and asked her if she wanted to \\\"have good sex with [defendant].\\\" Defendant and Cassia then exchanged photos and defendant asked Cassia her age. When Cassia replied that she was fourteen, defendant stated, \\\"oh, i [sic] am sorry, I thought you were older,\\\" but later asked, \\\"so, if we were to meet, how would we do it?\\\" During the same chat, defendant subsequently asked Cassia if she wanted to \\\"go somewhere and park\\\" and \\\"see how it goes.\\\"\\nOn 12 December 2007, defendant, now using the pseudonym \\\"dan claussen,\\\" and Cassia engaged in another chat on NC Romance. Defendant again asked Cassia her age. When Cassia responded that she was fourteen, defendant stated, \\\"you are underage, and i [sic] am not . I am apprehensive about meeting you in person . . . .\\\" Defendant then stated that he and Cassia could meet in person \\\"and see where it goes from there\\\" and do things like \\\"catch a movie at the mall, or just hang out, or find other things to get into.\\\" When Cassia asked what defendant meant by that statement, defendant responded, \\\"I get the feeling that you are wanting to talk about sex .,\\\" and that \\\"[t]hat is something we could talk about in person if you like.\\\" Defendant then agreed to meet Cassia the next day at the mall. Before signing off, defendant asked Cassia, \\\"are you a virgin?\\\" Defendant signed off by telling Cassia, \\\"ok, bye sweetie.\\\"\\nOn 9 January 2008, defendant spoke by telephone with Detective Marshburn. Defendant identified himself by his middle name, Dan, and Detective Marshburn identified herself as Cassia. During that conversation, defendant told Cassia she had a \\\"nice voice.\\\" He then stated, \\\"I can just get in trouble for talking to you . . . [c]ause [sic] you're young.\\\" When Cassia stated that she was nervous because she \\\"never did this before,\\\" defendant said \\\"[w]ell, I have once, but not with someone this young[.]\\\" When Cassia asked defendant what he did on that prior occasion, defendant said, \\\"we just kissed and stuff.\\\" Defendant asked Cassia if she liked \\\"older guys.\\\" She replied in the affirmative, then asked defendant if he liked \\\"younger girls.\\\" He replied, \\\"[y]eah, I do . . [because] [t]hey just look better, feel better....\\\" Defendant and Cassia engaged in another chat on NC Romance that day. Defendant told Cassia, \\\"you sound very sexy\\\" and stated he wanted \\\"to do whatever you are curious about or want to try.\\\" When Cassia asked defendant if they were going to kiss, defendant replied, \\\"if you want . we can do more if you want[.]\\\" Defendant then asked Cassia, \\\"are you turned on at all right now?\\\" Defendant stated that he was also turned on and told Cassia, \\\"I want you on top of me Cassia replied, \\\"like sex,\\\" and defendant answered \\\"yeah.\\\" On 15 January 2008, defendant and Detective Marshbum engaged in another chat on NC Romance. Defendant agreed to meet Cassia at the mall at 11:30 a.m. that day. Substantial evidence sustained the jury verdict of guilty of solicitation of a person the defendant believed to be a child, by means of a computer, for the purpose of committing an unlawful sex act.\\nDefendant argues that there was no evidence that he \\\"enticed or advised\\\" Detective Marshburn to meet with him within the meaning of N.C. Gen. Stat. \\u00a7 14-202.3(a). We disagree.\\nDefendant does not suggest definitions for these words. They are not defined in N.C. Gen. Stat. \\u00a7 14-202.3(a), nor can we find any case law in our state providing us with a definition. When a word used in a statute is not explicitly defined by that statute, the General Assembly is presumed to have used the word to convey its natural and ordinary meaning. State v. Worley,- N.C. App.-,-, 679 S.E.2d 857, 861 (2009). \\\" 'The best indicia of [the legislature's] intent are the language of the statute or ordinance, the spirit of the act and what the act seeks to accomplish.' \\\" State v. Abshire, 363 N.C. 322, 330, 677 S.E.2d 444, 450 (2009) (quoting Coastal Ready-Mix Concrete Co. v. Bd. of Comm'rs of Town of Nags Head, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980)). The purpose of statutes such as N.C. Gen. Stat. \\u00a7 14-202.3 is to protect children against exploitation. Outmezguine v. State, 97 Md. App. 151, 166, 627 A.2d 541, 548 (1993); Bone v. State, 771 N.E.2d 710, 717 (Ind. App. 2002); Ward v. State, 994 So.2d 293, 300 (Ala. Crim. App. 2007); PROTECT Act, Pub. L. No. 108-21, \\u00a7 1(a), 117 Stat. 650, 650 (2003).\\n\\\"Webster's Ninth New Collegiate Dictionary... defines 'advise' as 'recommendf.]' \\\" People v. Hatcher, 392 Ill. App. 3d 163, 167, 910 N.E.2d 757, 761 (2009) (citing Webster's Ninth New Collegiate Dictionary 59 (1988)).\\nEntice has been defined as: \\\"to lure; to lead on by exciting hope of reward or pleasure; to tempt,\\\" Webster's New 20th Century Dictionary (2d ed. 1960), and \\\"[t]o wrongfully solicit, persuade, procure, allure, attract, draw by blandishment, coax or seduce.... To lure, induce, tempt, incite, or persuade a person to do a thing.\\\" Black's Law Dictionary 531 (6th ed. 1990).\\nState v. Scieszka, 897 P.2d 1224, 1226 (Utah Ct. App. 1995); State v. Hansen, 750 N.W.2d 111, 114 (Iowa 2008); Government of Virgin Islands v. Berry, 604 F.2d 221, 225 n. 6 (1979), superseded on other grounds by statute, 14 V.I.C. \\u00a7 1052(b) (2009); Bayouth v. State, 294 P.2d 856, 863 (Okla. Crim. App. 1956). We believe that defendant's words to Cassia fall within these rather broad definitions, particularly when the entire online and telephone conversations are considered. Hatcher, 392 Ill. App. 3d at 167, 910 N.E.2d at 761. \\\"We do not find [the above] definitions at all inconsistent with defendant's conduct. On the contrary, they accurately describe his course of conduct.\\\" Scieszka, 897 P.2d at 1226. Defendant's assignment of error is overruled.\\nIII. PLAIN ERROR\\nDefendant argues that the trial court committed plain error in allowing Detective Marshburn to give opinion testimony. We disagree.\\nUnder the plain error standard of review, defendant has the burden of showing: \\\" '(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.' \\\" State v. McNeil, 165 N.C. App. 777, 784, 600 S.E.2d 31, 36 (2004) (quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)). \\\"Indeed, even when the 'plain error' rule is applied, '[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.' \\\" State v. Odom, 307 N.C. 655, 660-61, 300 S.E.2d 375, 378 (1983) (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1736, 52 L. Ed. 2d 203, 212 (1977)).\\n\\\"Statements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law.\\\" State v. Gobal, 186 N.C. App. 308, 319, 651 S.E.2d 279, 287 (2007) (citing State v. Greene, 324 N.C. 1, 11, 376 S.E.2d 430, 437 (1989), vacated on other grounds, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990)); N.C. Gen. Stat. \\u00a7 15A-1443(c) (2007) (\\\"A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct.\\\"); see also State v. Chatman, 308 N.C. 169, 177, 301 S.E.2d 71, 76 (1983) (holding that the defendant could not assign error to testimony elicited by his counsel during a cross-examination of the State's witness).\\nIn the instant case, the following exchange occurred when defendant's counsel cross-examined Detective Marshburn:\\nQ: And one last question. In your last chat [defendant] said he was coming to Raleigh, which is State's Exhibit Number 17.\\nA: Um-hum.\\nQ: Just to be sure, there is no specific references [sic] to any sex act; is that correct?\\nA: That's correct.\\nQ: So you don't know why he was coming to Raleigh on that day.\\nA: It is my opinion he was coming to Raleigh to have sex with a 14 year old.\\nQ: But you don't know that.\\nA: That's my opinion.\\nEven assuming arguendo the elicited statements above are error, defendant cannot be prejudiced by them as a matter of law because he invited them. Gobal, 186 N.C. App. at 319, 651 S.E.2d at 287. Defendant's assignment of error is overruled.\\nIV. INEFFECTIVE ASSISTANCE OF COUNSEL (\\\"IAC\\\")\\nIn the alternative, defendant urges this Court to hold that he was denied the effective assistance of counsel because his trial counsel: (1) failed to renew his motion to dismiss at the close of all the evidence, and (2) elicited and failed to move to strike Detective Marshburn's lay opinion testimony. We disagree.\\n\\\"Claims of ineffective assistance of counsel are . . . most properly raised in a motion for appropriate relief.\\\" State v. Jones, 176 N.C. App. 678, 688, 627 S.E.2d 265, 271 (2006). \\\"Our Supreme Court has held that an ineffective assistance claim brought on direct review will be decided on the merits only 'when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.' \\\" Id. (quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001)).\\n\\\"To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense.\\\" State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). \\\"Deficient performance may be established by showing that counsel's representation fell below an objective standard of reasonableness.\\\" Id. (internal quotations and citations omitted). \\\"Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\\\" Id. (internal quotations and citations omitted).\\nAs for defendant's first IAC argument, if the evidence is sufficient to support a conviction, the defendant is not prejudiced by his counsel's failure to make a motion to dismiss at the close of all the evidence. Gayton-Barbosa,-N.C. App. at-, 676 S.E.2d at 594. Since we have found that the evidence in the instant case was sufficient to support the jury's verdict, \\\"defendant has not shown counsel's assistance to be constitutionally inadequate, [and thus his] assignment of error is without merit.\\\" Id. at-, 676 S.E.2d at 594.\\nAs for defendant's second IAC argument, \\\"[t]he fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings.\\\" State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985) (citing Strickland, 466 U.S. at 695, 104 S. Ct. at 2068-69, 80 L. Ed. 2d at 698). The online chats and the telephone call between defendant and Detective Marshbum provide overwhelming evidence that defendant thought Detective Marshbum was a 14-year-old girl and that defendant was meeting her at the mall for a sexual encounter. Even if defendant's counsel had not elicited or had moved to strike Detective Marshbum's lay opinion testimony, there was no reasonable probability that a different outcome would have resulted.\\nV. CONCLUSION\\nDefendant's remaining assignments of error not argued in his brief are abandoned. N.C. R. App. P 28(b)(6) (2009). Defendant received a fair trial free from error.\\nNo error.\\nJudges WYNN and BEASLEY concur.\\n. \\\"Chat rooms\\\" and \\\"instant messenger\\\" are types of Internet services that allow users to engage in real time dialogue \\\"by typing messages to one another that appear almost immediately on the others' computer screens.\\\" Reno v. American Civil Liberties Union, 521 U.S. 844, 851-52, 117 S. Ct. 2329, 2335, 138 L. Ed. 2d 874, 885 (1997).\\n. After defendant's offense date, our General Assembly adopted a series of amendments to this statute, including, inter alia, enticing \\\"by means of a computer or any other device capable of electronic data storage or transmission,\\\" and stating that the age difference between the defendant and the victim or perceived victim is to be five years. See N.C. Gen. Stat. \\u00a7 14-202.3(a) (2009).\"}" \ No newline at end of file diff --git a/nc/4177188.json b/nc/4177188.json new file mode 100644 index 0000000000000000000000000000000000000000..40911fa7c28db78117452ffee18e44a5da9c683f --- /dev/null +++ b/nc/4177188.json @@ -0,0 +1 @@ +"{\"id\": \"4177188\", \"name\": \"RODNEY A. LEE, and wife, STEPHANIE F. LEE, LEO GIBSON, KAMAMU ABUBAKARI and wife, JENIFER P. ABUBAKARI, HARLEE DAVIS and wife, ALMA P. DAVIS and MARY B. GRIFFIN, Plaintiffs v. WINGET ROAD, LLC, NVR, INC., T/A RYAN HOMES, NVR SETTLEMENT SERVICES, INC., BRIAN IAGNEMMA, TODD DAVID WILLIAMS, KUESTER ESTATE SERVICES, INC., and ERIN BOTTENBERG, Defendants\", \"name_abbreviation\": \"Lee v. Winget Road, LLC\", \"decision_date\": \"2010-05-18\", \"docket_number\": \"No. COA09-828\", \"first_page\": \"96\", \"last_page\": \"105\", \"citations\": \"204 N.C. App. 96\", \"volume\": \"204\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T00:14:28.509524+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges HUNTER, JR. and ERVIN concur.\", \"parties\": \"RODNEY A. LEE, and wife, STEPHANIE F. LEE, LEO GIBSON, KAMAMU ABUBAKARI and wife, JENIFER P. ABUBAKARI, HARLEE DAVIS and wife, ALMA P. DAVIS and MARY B. GRIFFIN, Plaintiffs v. WINGET ROAD, LLC, NVR, INC., T/A RYAN HOMES, NVR SETTLEMENT SERVICES, INC., BRIAN IAGNEMMA, TODD DAVID WILLIAMS, KUESTER ESTATE SERVICES, INC., and ERIN BOTTENBERG, Defendants\", \"head_matter\": \"RODNEY A. LEE, and wife, STEPHANIE F. LEE, LEO GIBSON, KAMAMU ABUBAKARI and wife, JENIFER P. ABUBAKARI, HARLEE DAVIS and wife, ALMA P. DAVIS and MARY B. GRIFFIN, Plaintiffs v. WINGET ROAD, LLC, NVR, INC., T/A RYAN HOMES, NVR SETTLEMENT SERVICES, INC., BRIAN IAGNEMMA, TODD DAVID WILLIAMS, KUESTER ESTATE SERVICES, INC., and ERIN BOTTENBERG, Defendants\\nNo. COA09-828\\n(Filed 18 May 2010)\\nAppeal and Error\\u2014 notice of appeal \\u2014 failure to serve on all parties \\u2014 jurisdictional\\u2014significant violation\\nAn appeal was dismissed where plaintiff-appellants failed to comply with N.C. R. App. P. Rule 3(a) by not serving a notice of appeal on the non-appealing plaintiffs and previously dismissed defendants. Compliance with Rule 3 is jurisdictional and may be raised by the court. Furthermore, noncompliance is a significant and fundamental violation that frustrates the adversarial process and that no sanction less than dismissal will remedy.\\nAppeal by plaintiffs Rodney A. Lee and wife, Stephanie F. Lee, Harlee Davis and wife, Alma R Davis, and Mary B. Griffin from order entered 4 February 2009 by Judge Yvonne Mims Evans in Superior Court, Mecklenburg County. Heard in the Court of Appeals 19 November 2009.\\nParker Poe Adams & Bernstein LLP, by Michael G. Adams and Morgan H. Rogers, for defendants-appellees.\", \"word_count\": \"3723\", \"char_count\": \"22311\", \"text\": \"STROUD, Judge.\\nPlaintiff-appellants filed a notice of appeal of a summary judgment order dismissing their claims. After the parties briefed the issues, defendant-appellees filed a motion to dismiss the appeal for failure to comply with the requirements of North Carolina Rule of Appellate Procedure 3(a) as to service of the notice of appeal. We agree with defendant-appellees and dismiss the appeal.\\nI. Background\\nOn 7 March 2008, Rodney and Stephanie Lee (\\\"Lees\\\"), Leo Gibson (\\\"Mr. Gibson\\\"), Kamamu and Jenifer Abubakari (\\\"Abubakaris\\\"), Harlee and Alma Davis (\\\"Davises\\\"), and Mary Griffin (\\\"Ms. Griffin\\\") filed a complaint against Winget Road, LLC (\\\"Winget\\\"), NVR, Inc. T/A Ryan Homes (\\\"NVR One\\\"), NVR Settlement Services, Inc. (\\\"NVR Two\\\"), Brian Iagnemma (\\\"Mr. Iagnemma\\\"), Todd Williams (\\\"Mr. Williams\\\"), Kuester Real Estate Services, Inc. (\\\"Kuester\\\"), and Erin Bottenberg (\\\"Ms. Bottenberg\\\") regarding modifications to the Declaration for Winget Pond Subdivision. On 13 November 2008, all plaintiffs voluntarily dismissed defendants Kuester and Ms. Bottenberg from the action with prejudice. All remaining defendants, Winget, NVR One, NVR Two, Mr. Iagnemma, and Mr. Williams, filed motions for summary judgment.\\nOn 4 February 2009, the trial court granted defendants' motions for summary judgment. On 5 March 2009, Roger Bruny, as counsel for plaintiff-appellants the Lees, the Davises, and Ms. Gibson, filed a notice of appeal. On or about 11 June 2009, plaintiff-appellants withdrew their appeal as to Winget. On or about 16 September 2009, defendant-appellees NVR One, NVR Two, Mr. Iagnemma, and Mr. Williams, filed a motion to dismiss plaintiff-appellants' appeal. The motion to dismiss was based on two grounds; the first ground is that \\\"Appellants failed to serve the Notice of Appeal on all parties because Appellants failed to serve the Notice of Appeal on the non-appealing Plaintiffs and the Kuester Defendants.\\\"\\nII. Motion to Dismiss\\nDefendant-appellees argue that plaintiff-appellants appeal should be dismissed because plaintiff-appellants failed to serve a notice of appeal on non-appealing plaintiffs, the Abubakaris and Mr. Gibson, and on previously dismissed defendants, Kuester and Ms. Bottenberg, in violation of North Carolina Rule of Appellate Procedure 3(a). We first consider plaintiff-appellants' failure to serve the non-appealing plaintiffs.\\nA. Failure to Serve Notice of Appeal on Other Plaintiffs\\nThe notice of appeal in the record provides that only the Lees, the Davises, and Ms. Griffin are appealing. The certificate of service for the notice of appeal certifies that it was served on Richard Fennell, Winget's attorney, and Michael Adams and Morgan Rogers, attorneys for NVR One, NVR Two, Mr. Iagnemma, and Mr. Williams. Neither the notice of appeal nor certificate of service mentions the Abubakaris or Mr. Gibson. The record shows that Kenneth Davies of Davies & Grist, LLP represented the non-appealing parties, the Abubakaris and Mr. Gibson, before the trial court. The notice of appeal and certificate of service also make no mention of Mr. Davies or his law firm.\\n1. Standing and Waiver\\nPlaintiff-appellants contend that defendant-appellees do not have standing to bring their motion to dismiss and that because defendant-appellants had over six months notice of this appeal, during which time substantial time and money have been spent, the issues in the motion to dismiss have been waived. However,\\n[i]n order to confer jurisdiction on the state's appellate courts, appellants of lower court orders must comply with the requirements of Rule 3 of the North Carolina Rules of Appellate Procedure. The provisions of Rule 3 are jurisdictional, and failure to follow the requirements thereof requires dismissal of an appeal.\\nStephenson v. Bartlett, 177 N.C. App. 239, 241, 628 S.E.2d 442, 443 (citations and quotation marks omitted), disc. review denied, 360 N.C. 544, 635 S.E.2d 58 (2006). Furthermore, \\\"an appellate court has the power to inquire into jurisdiction in a case before it at any time, even sua sponte.\\\" Xiong v. Marks, 193 N.C. App. 644, 652, 668 S.E.2d 594, 599 (2008). Thus, even assuming arguendo that defendantappellees do not have standing or that they have waived any arguments for which they properly had standing, this Court still may and will consider whether plaintiff-appellants complied with Rule 3(a). See id. -, see also Guthrie v. Conroy, 152 N.C. App. 15, 17, 567 S.E.2d 403, 406 (2002) (\\\"[D]efendant's motion for dismissal presents a question of jurisdiction, which may be addressed by this Court at any time, sua sponte, regardless of whether defendants properly preserved it for appellate review.\\\" (citation omitted)).\\nIn addition, plaintiff-appellants' argument as to standing is based on a lack of prejudice to defendant-appellees. However, clearly the parties most likely to be prejudiced by this appeal are the unserved parties who, as best we can tell from the record, are unaware of the appeal and therefore cannot possibly file a motion to dismiss. Likewise, the parties who would need to waive the lack of service of the notice of appeal were not served with a notice and thus have not had the opportunity to waive service. Thus, we must consider whether dismissal of the appeal is necessary as this is the only way that we can address this issue of compliance with the Rules of Appellate Procedure and protection of the rights of all of the parties.\\n2. North Carolina Rule of Appellate Procedure 3(a)\\nPlaintiff-appellants argue that Rule 3(a) does not provide \\\"that the Notice of Appeal must be served on all parties to the action at the trial level, nor does it provide that the Notice of Appeal should be served on parties who have chosen not [to] appeal.\\\" We disagree with these contentions. Rule 3(a) provides that\\n[a]ny party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil action or special proceeding may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed by subdivision (c) of this rule.\\nN.C.R. App. P. 3(a) (emphasis added).\\nNeither defendant-appellees nor plaintiff-appellants direct this Court to any case law regarding an appellant's failure to serve a notice of appeal on parties on the same side of a suit. However, the plain language of Rule 3(a) provides that \\\"all other parties\\\" must be served with a copy of the notice of appeal. N.C.R. App. P. 3(a). \\\" 'All' is defined as 'the whole quantity of,' 'everyone,' or 'entirely.' \\\" Farrior v. State Farm Mut. Auto. Ins. Co., 164 N.C. App. 384, 388, 595 S.E.2d 790, 793 (citation omitted), disc. review denied, 358 N.C. 731, 601 S.E.2d 530 (2004). Furthermore, this Court has dismissed a plaintiff's appeal \\\"because there is no proof of service of the notice of appeal on the other parties to the appeal, as is required by our Rules of Appellate Procedure.\\\" Spivey and Self v. Highview Farms, 110 N.C. App. 719, 729, 431 S.E.2d 535, 541, disc. review denied, 334 N.C. 623, 435 S.E.2d 342 (1993).\\nIn Hale v. Afro-American Arts Int'l, 335 N.C. 231, 436 S.E.2d 588 (1993), the appellant filed a notice of appeal, but failed to include in the record a certificate of service of the notice of appeal upon the appellee. Id. at 232, 436 S.E.2d at 589. The Court of Appeals dismissed the appeal, finding that the lack of a certificate of service of the notice of appeal was a jurisdictional defect. Id. Judge Wynn dissented and concluded that failure to serve the notice of appeal could be waived \\\"by not raising the issue by motion or otherwise and by participating without objection in the appeal.\\\" Id. The Supreme Court adopted Judge Wynn's dissent and reversed the majority opinion. Id. Thus, pursuant to Hale, filing of the notice of appeal is jurisdictional, but where a notice of appeal is filed, service of the notice of appeal upon all parties may be waived. Id.\\nIn Ribble v. Ribble, the appellant filed a notice of appeal but failed to include in the record a certificate of service upon the appellee, who did not appear or file a brief in the appeal. 180 N.C. App. 341, 343, 637 S.E.2d 239, 240 (2006). This Court discussed Hale and concluded that the appellant in Ribble did not fall within the Hale exception because the \\\"[appellee]... has not filed a brief or any other document with this Court or otherwise participated in this appeal. This record does not indicate plaintiff had notice of this appeal and plaintiff has not waived defendant's failure to include proof of service in the record before this Court.\\\" Ribble at 343, 637 S.E.2d at 240; see In re C.T., 182 N.C. App. 166, 168, 641 S.E.2d 414, 415 (dismissing appeal pursuant to Ribble), aff'd per curiam, 361 N.C. 581, 650 S.E.2d 593 (2007); see also Blyth v. McCrary, 184 N.C. App. 654, 660, 646 S.E.2d 813, 817 (2007) (noting that the fact that a party allegedly told the appellant that he did not wish to be served with court documents still does not excuse another party from failing to serve all required documents on all required parties), disc. review denied, 362 N.C. 175, 658 S.E.2d 482 (2008).\\nHere, the record does not reflect that the non-appealing plaintiffs were ever notified of this appeal, and they have not filed any briefs or participated in the appeal in any way. In response to the motion to dismiss the appeal the appellants could have obtained written waivers from the unserved plaintiffs to present to this Court, but they failed to do so. The plaintiff-appellants' failure to comply with Rule 3 has not been waived by the non-appealing plaintiffs.\\n3. North Carolina Rule of Appellate Procedure 26(e)\\nPlaintiffs argue that because North Carolina Rule of Appellate Procedure 3(e) refers to Rule 26, Rule 26 controls. Rule 3(e) provides that \\\"[s]ervice of copies of the notice of appeal may be made as provided in Rule 26 of these rules.\\\" N.C.R. App. P. 3(e). Plaintiffs then argue that North Carolina Rule of Appellate Procedure 26(e) states that \\\"[a]ny paper required by these rules to be served on a party is properly served upon all parties joined in the appeal by service upon any one of them.\\\" N.C.R. App. P. 26(e) (emphasis added). However, the provision of Rule 26(e), entitled \\\"Joint appellants and appellees,\\\" allows service on one party only as to parties who are joined in the appeal. See id. There is no indication in the record that plaintiffs-appellants and the Abubakaris and Mr. Gibson are \\\"joint appellants.\\\" See N.C.R. App. P. 5(a).\\nNorth Carolina Rule of Appellate Procedure 5 sets forth the requirements for joinder of appellants in an appeal. See id. In order for appellants to be considered joined they\\nmay give a joint oral notice of appeal or file and serve a joint notice of appeal in accordance with Rule 3 and 4; or they may join in appeal after timely taking of separate appeals by filing notice of joinder in the office of the clerk of superior court and serving copies thereof upon all other parties.\\nId. Rule 5(c) goes on to provide that \\\"[a]fter joinder, the parties proceed as a single appellant or appellee. Filing and service of papers by and upon joint appellants or appellees is provided by Rule 26(e).\\\" N.C.R. App. P 5(c) (emphasis added).\\nRule 3(a) directs that all parties must be served with the notice of appeal. See N.C.R. App. P. 3(a). Rule 26 is entitled, \\\"Filing and service.\\\" N.C.R. App. P. 26. Rule 26 describes methods of serving various appellate documents. See id. Furthermore, Rule 26(e) specifically addresses \\\"[j]oint appellants and appellees[.]\\\" N.C.R. App. P. 26(e). However, plaintiff-appellants' argument ignores Rule 5, which sets forth the procedure for joinder. See N.C.R. App. P. 5. The purpose of a notice of appeal is obviously to provide parties with notice that an appeal is being made. If the parties wish to join in the appeal under Rule 5, they may do so. See N.C.R. App. P. 5. However, unless there is joinder, all parties have to be served with the notice of appeal. See N.C.R. App. P. (3)(a), 5, 26(e). The Abubakaris and Mr. Gibson were not \\\"joined in the appeal\\\" with plaintiff-appellants and thus Rule 26(e) is inapplicable. N.C.R. App. P. 26(e), see N.C.R. App. P. 5(a), (c).\\n4. Dismissal\\nAs plaintiff-appellants have failed to comply with Rule 3, we must now consider whether the appeal must be dismissed pursuant to Dogwood Dev. & Mgmt. Co. LLC, v. White Oak Transp. Co., 362 N.C. 191, 193, 657 S.E.2d 361, 362 (2008). If the failure to comply with Rule 3 created \\\"[a] jurisdictional default\\\" we would be required \\\"to dismiss the appeal.\\\" Id. at 197, 657 S.E.2d at 365 (citations omitted). In fact, Dogwood noted lack of notice of appeal in the record or failure to give timely notice of appeal as examples of jurisdictional defects. Id. at 197-98, 657 S.E.2d at 365. However, Dogwood did not address the situation we have here, where a notice of appeal is properly and timely filed, but not served upon all parties. Pursuant to Hale, as noted above, we find that this violation of Rule 3 is a nonjurisdictional defect. Hale, 335 N.C. 231, 436 S.E.2d 588.\\nDogwood states that a nonjurisdictional failure to comply with appellate rules \\\"normally should not lead to dismissal of the appeal.\\\" Id. at 198, 657 S.E.2d at 365 (citations omitted). Neither dismissal nor other sanctions under North Carolina Rules of Appellate Procedure 25 or 34 should be considered unless the noncompliance is a \\\"substantial failure\\\" to comply with the Rules or a \\\"gross violation\\\" of the Rules. Id. at 199, 657 S.E.2d at 366 (quotation marks omitted). This Court is required to make a \\\"fact-specific inquiry into the particular circumstances of each case\\\" mindful of the need to enforce the rules as uniformly as possible. Id. at 199-200, 657 S.E.2d at 366 (citations omitted). Dismissal is appropriate only for the \\\"most egregious instances of nonjurisdictional default[.]\\\" Id. at 200, 657 S.E.2d at 366 (citations omitted). To determine the severity of the rule violation, this Court is to consider: \\\"[(1)] whether and to what extent the noncompliance impairs the court's task of review[,] [(2)] . whether and to what extent review on the merits would frustrate the adversarial process . . . [, and (3)] [t]he court may also consider the number of rules violated[.]\\\" Id. at 200, 657 S.E.2d at 366-67 (citations omitted).\\nIn this instance, we find that the noncompliance has impaired this Court's task of review and that review on the merits would frustrate the adversarial process. Failure to serve notice of appeal on all parties is a significant and fundamental violation. A notice of appeal is intended to let all parties to a case know that an appeal has been filed by at least one party. Because two of the parties to this case were never informed of the fact that there was an appeal which affects their interests, this Court has no way of knowing the positions these parties would have taken in this appeal. The fact that these parties have not objected to our consideration of the appeal is irrelevant, because as far as we can tell from the record, these parties are unaware of the appeal. Simply put, all parties to a case are entitled to notice that a party has appealed. The unserved plaintiffs have been denied the opportunity to be heard, as they received no notice of the appeal and there is no written waiver filed in the record or in response to the motion to dismiss.\\nNotice to all parties is not a mere formality but a fundamental requirement of Rule 3(a). The United States Supreme Court has long recognized the importance of notice. \\\"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.\\\" Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 314, 94 L. Ed. 865, 873 (1950) (citations omitted). The North Carolina Supreme Court has also noted that \\\"[t]he fundamental premise of procedural due process protection is notice and the opportunity to be heard.\\\" Peace v. Employment Sec. Comm'n, 349 N.C. 315, 322, 507 S.E.2d 272, 278 (1998) (citation omitted). Although we are not directly addressing a due process issue in this case, these basic principles of law inform our analysis of the importance of the requirement of Rule 3(a) of service of a notice of appeal upon all parties. See N.C.R. App. P. 3(a), see generally Mullane at 314, 94 L. Ed. at 873, Peace at 322, 507 S.E.2d at 278.\\nThe principles of due process also support our finding that failure to serve the notice of appeal upon all parties is a \\\"gross violation\\\" of the rules \\\"which frustrates the adversarial process[.]\\\" Dogwood at 200, 657 S.E.2d at 366-67. Once notice is served upon all parties, any party may chose not to participate, but our rules require that all parties have notice and an opportunity to participate to protect their own interests. See N.C.R. App. P. 3(a), see generally Mullane at 314, 94 L. Ed. at 873; Peace at 322, 507 S.E.2d at 278. The noncompliance impairs this Court's task of review as well, see Dogwood at 200, 657 S.E.2d at 366, as parties have been omitted from the case and we cannot review any contentions or arguments those parties might have raised.\\nIn addition, requiring service of the notice of appeal on all parties promotes uniformity in enforcement of the rules. See Dogwood at 199-200, 657 S.E.2d at 366. Rule 3 states plainly that \\\"all. . . parties\\\" must be served with the notice of appeal, N.C.R. App. P. 3(a), and as noted above, this is a fundamental requirement for the rest of the appeal. Hale has previously recognized that where the unserved parties have actual notice of the appeal and have participated in the appeal without objection, dismissal is not appropriate. Hale, 335 N.C. 231, 436 S.E.2d 588. In the situation presented in Hale, neither the adversarial process nor this Court's task of review was compromised; the violation in Hale was merely technical. Compare id.\\nNo lesser sanction, such as monetary sanctions, can remedy this particular rule violation, as a sanction less than dismissal cannot make up for the failure to notify all parties of the existence of this appeal. We therefore conclude that dismissal is the only appropriate sanction under N.C.R. App. P. 34(b) and this sanction is also supported by Hale. Hale, 335 N.C. 231, 436 S.E.2d 588. Where we find that dismissal is the appropriate sanction, the Supreme Court in Dogwood has directed that we may consider invoking North Carolina Rule of Appellate Procedure 2, but we should do this only on \\\"rare occasions and under exceptional circumstances . to prevent manifest injustice to a party, or to expedite decision in the public interest[.]\\\" Dogwood at 201, 657 S.E.2d at 367 (citations, quotation marks, and brackets omitted). We do not find that this case presents exceptional circumstances where use of Rule 2 is required to prevent \\\"manifest injustice\\\" or that it is necessary to \\\"expedite decision in the public interest.\\\" Id. Our decision to this effect is reinforced by the fact that we have reviewed plaintiff-appellant's substantive challenges to the trial court's summary judgment order and conclude that they have no merit.\\nB. Other Issues\\nAs we are dismissing plaintiff-appellants' appeal we need not address defendant-appellees' other arguments in their motion to dismiss or plaintiffs' argument on appeal.\\nIII. Conclusion\\nAs plaintiff-appellants failed to comply with the plain language of a rule of appellate procedure, we dismiss.\\nDISMISSED.\\nJudges HUNTER, JR. and ERVIN concur.\\n. Though plaintiff-appellants' counsel Roger H. Bruny did submit a brief to this Court, he failed to sign either the brief or the certificate of service. Pursuant to N.C.R. App. P. R. 28(b)(8), his name is therefore not listed as counsel for plaintiffs.\\n. We note that this Court must consider this appeal because it presented a jurisdictional question. Though we have concluded that the actual issue presented, specifically regarding service upon the non-appealing plaintiffs, was not jurisdictional, it was necessary for us to consider this appeal in order to determine if the issue was jurisdictional.\\n. We are not addressing plaintiff-appellants' failure to serve the notice of appeal upon defendants Kuester and Ms. Bottenberg, as these defendants were voluntarily dismissed with prejudice by all plaintiffs prior to both the order granting summary judgment and the filing of the notice of appeal. These defendants were not \\\"parties\\\" at the time of the notice of appeal, although we recognize that previously dismissed parties before the trial court might be \\\"parties\\\" on appeal where a plaintiff is challenging their dismissal. However, this dismissal was a voluntary dismissal which was agreed upon by all plaintiffs, not a dismissal by the trial court, and the dismissal is not a subject of the appeal.\"}" \ No newline at end of file diff --git a/nc/4327556.json b/nc/4327556.json new file mode 100644 index 0000000000000000000000000000000000000000..ee28132b96e17ebb8abc04cce3b9b62995bd36e8 --- /dev/null +++ b/nc/4327556.json @@ -0,0 +1 @@ +"{\"id\": \"4327556\", \"name\": \"Riggings Homeowners, Inc. v. Coastal Resources Commission of the State of North Carolina\", \"name_abbreviation\": \"Riggings Homeowners, Inc. v. Coastal Resources Commission\", \"decision_date\": \"2014-01-23\", \"docket_number\": \"401A13\", \"first_page\": \"290\", \"last_page\": \"290\", \"citations\": \"367 N.C. 290\", \"volume\": \"367\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T01:47:31.440977+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Riggings Homeowners, Inc. v. Coastal Resources Commission of the State of North Carolina\", \"head_matter\": \"401A13\\nRiggings Homeowners, Inc. v. Coastal Resources Commission of the State of North Carolina\", \"word_count\": \"68\", \"char_count\": \"455\", \"text\": \"1. Respondent's NOA Based Upon a Dissent (COA12-1299)\\n2. Respondent's Motion for Temporary Stay\\n3. Respondent's Petition for Writ of Supersedeas\\n4. Respondent's PDR as to Additional Issues\\n5. Petitioner's Motion to Dismiss Appeal\\n6. Petitioner's Conditional PDR Under N.C.G.S. \\u00a7 7A-31\\n1. -\\n2. Allowed 09/11/2013\\n3. Allowed 09/11/2013\\n4. Allowed\\n5.\\n6. Allowed\"}" \ No newline at end of file diff --git a/nc/4358421.json b/nc/4358421.json new file mode 100644 index 0000000000000000000000000000000000000000..5984a9a7c350e988d9bce0666de70a22b02951a7 --- /dev/null +++ b/nc/4358421.json @@ -0,0 +1 @@ +"{\"id\": \"4358421\", \"name\": \"In the Matter of: R.H. & M.H.\", \"name_abbreviation\": \"In re R.H.\", \"decision_date\": \"2012-06-13\", \"docket_number\": \"331P11\", \"first_page\": \"227\", \"last_page\": \"227\", \"citations\": \"366 N.C. 227\", \"volume\": \"366\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T18:12:03.186655+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of: R.H. & M.H.\", \"head_matter\": \"331P11\\nIn the Matter of: R.H. & M.H.\", \"word_count\": \"15\", \"char_count\": \"95\", \"text\": \"Respondent's PDR Under N.C.G.S. \\u00a7 7A-31 (COA11-13)\\nDenied\"}" \ No newline at end of file diff --git a/nc/4687184.json b/nc/4687184.json new file mode 100644 index 0000000000000000000000000000000000000000..68d8440b4aa853cd764eb0b107d5b15ca1f2018c --- /dev/null +++ b/nc/4687184.json @@ -0,0 +1 @@ +"{\"id\": \"4687184\", \"name\": \"CYCLONE ROOFING CO. v. LaFAVE CO.\", \"name_abbreviation\": \"Cyclone Roofing Co. v. LaFave Co.\", \"decision_date\": \"1984\", \"docket_number\": \"No. 181A84\", \"first_page\": \"399\", \"last_page\": \"399\", \"citations\": \"311 N.C. 399\", \"volume\": \"311\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T00:58:23.716071+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CYCLONE ROOFING CO. v. LaFAVE CO.\", \"head_matter\": \"CYCLONE ROOFING CO. v. LaFAVE CO.\\nNo. 181A84.\\nCase below: 67 N.C. App. 278.\", \"word_count\": \"31\", \"char_count\": \"185\", \"text\": \"Petition by defendant for discretionary review under G.S. 7A-31 allowed as to additional issues 6 July 1984.\"}" \ No newline at end of file diff --git a/nc/4717740.json b/nc/4717740.json new file mode 100644 index 0000000000000000000000000000000000000000..b07a9c647082f0d3a241bd7b253e9b37aedb14d1 --- /dev/null +++ b/nc/4717740.json @@ -0,0 +1 @@ +"{\"id\": \"4717740\", \"name\": \"STATE OF NORTH CAROLINA v. JACQUELINE RUTH HUNTER\", \"name_abbreviation\": \"State v. Hunter\", \"decision_date\": \"1986-01-07\", \"docket_number\": \"No. 10A85\", \"first_page\": \"371\", \"last_page\": \"378\", \"citations\": \"315 N.C. 371\", \"volume\": \"315\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:55:55.689940+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF NORTH CAROLINA v. JACQUELINE RUTH HUNTER\", \"head_matter\": \"STATE OF NORTH CAROLINA v. JACQUELINE RUTH HUNTER\\nNo. 10A85\\n(Filed 7 January 1986)\\n1. Assault and Battery \\u00a7 15.2\\u2014 assault with a deadly weapon \\u2014 instruction on self-defense not required\\nThe trial court did not err in a prosecution for assault with a deadly weapon by refusing to instruct on self-defense where defendant\\u2019s evidence showed at most that the victim committed nonfelonious assaults and employed only nondeadly force against defendant; immediately prior to the stabbing defendant, who was safely away from the victim and perfectly free to remain in a safe place, borrowed a knife and returned to the victim\\u2019s presence displaying the knife; and there was no evidence that at the time defendant attacked the victim she was in actual or apparent danger of death or great bodily harm.\\n2. Criminal Law \\u00a7 146.2\\u2014 lack of findings to support probation condition \\u2014 not raised on appeal by defendant \\u2014 presented on the face of the record\\nThe issue of whether the trial court erred when sentencing defendant for assault with a deadly weapon by failing to make findings of fact when imposing a condition for probation was properly presented for appellate review because defendant\\u2019s appeal standing alone presented the face of the record for review, the judgment is a part of the record, and the judgment disclosed the lack of findings. N.C. Rule of App. Procedure 9(a)(3)(vii).\\n3. Criminal Law 8 142.2\\u2014 restitution as condition of probation \\u2014 no findings \\u2014 no error\\nThe trial court did not err when sentencing defendant for assault with a deadly weapon by including without findings a condition of probation that defendant pay the victim\\u2019s medical bills not covered by insurance. The court knew the defendant\\u2019s age, her relationship to the victim, that she resided with her mother, that she was indigent for legal purposes, and that the victim\\u2019s family had insurance of uncertain scope. N.C.G.S. 15A-1343 does not require the trial judge to find and enter facts when imposing a judgment of probation; rather, it requires the court to take into consideration the resources of the defendant, her ability to earn, her obligation to support dependents, and other such matters pertaining to her ability to make restitution or reparation. N.C.G.S. 15A-1341(c), N.C.G.S. 15A-1345(e).\\nAppeal by defendant pursuant to N.C.G.S. \\u00a7 7A-30(2) from the decision of the Court of Appeals (Judge Eagles with Judge Braswell concurring and Judge Webb dissenting) reported in 71 N.C. App. 602, 323 S.E. 2d 43 (1984), reversing judgment of Allsbrook, J., entered at the 28 July 1983 Criminal Session of PITT County Superior Court. We allowed the Attorney General\\u2019s petition for writ of certiorari on 7 May 1985.\\nDefendant was charged in a bill of indictment with assault upon Sam Ward with a deadly weapon with intent to kill resulting in serious injury. The trial judge submitted possible verdicts of guilty of assault with a deadly weapon or not guilty. The jury returned a verdict of guilty of assault with a deadly weapon. Judge Allsbrook imposed a sentence of six months imprisonment, suspended the sentence, and placed defendant under supervised probation for a period of three years. One of the conditions of probation was that defendant pay the medical expenses incurred by Sam Ward which were not paid by medical insurance, not to exceed $806.25 to Pitt Memorial Hospital and $113.00 to Dr. John Winstead. All costs were to be paid by defendant under the supervision and direction of defendant\\u2019s probation officer. Defendant appealed and the Court of Appeals reversed and remanded for rehearing as to the award of restitution for medical expenses. The State brought forward the sole question of whether the Court of Appeals erred by reversing the trial judge\\u2019s restitution order.\\nLacy H. Thornburg, Attorney General, by Michael Smith, Associate Attorney, for the State.\\nArthur M. McGlauflin, Attorney for defendant-appellee.\", \"word_count\": \"2791\", \"char_count\": \"16345\", \"text\": \"BRANCH, Chief Justice.\\nDefendant's appeal presents the question of whether the Court of Appeals erred in failing to find error in the trial judge's refusal to instruct on self-defense. The State offered evidence tending to show that on the night of 11 March 1983 Sam Ward was sitting at a table with Loretta Cameron in a disco club called \\\"The Cave.\\\" Defendant, a sixteen year old girl, was Ward's former girlfriend and he was the father of her sixteen month old child. Ward testified that he \\\"felt somebody hitting in his side\\\" and when he looked around he observed defendant swinging her arm. He pushed her to the floor and noticed that defendant had a three inch lock blade knife in her hand. The victim then saw a wound in his thigh and at that point he slapped defendant.\\nDefendant testified that Ward had assaulted her several times on that day. She further testified:\\n[Ward] saw me talking to Nicky and called me over there to him. I wouldn't go because I knew what he was going to do. And he came up there to me and hit me beside of the head with his fist. . . . Then I told him I was going to get him because I was tired of him hitting on me. . . . Aaron asked me to dance. And when I came back and sat down I started talking and chatting with Nicky. I came to [Ward] \\u2014 because he hollered clear over there \\u2014and I went over there to him, and then he started punching me in my stomach. And I said, . I am going to get you because I am tired of this. . . . I was tired of [Ward] beating on me. I went to see some dude I had met that night. I asked him did he have a pocketknife. I said I had to cut something off my shirt. I went to [Ward], and [he] was looking at me when I went to him. And then as soon as I got to him [Ward] saw the knife and then that is when he punched me in my face. I fell.\\nWhen asked why she cut Ward she replied, \\\"I was tired of him beating on me.\\\"\\nUnder the law of this State, there is a distinction between a person's right of self-defense in repelling a felonious assault and a misdemeanor assault. State v. Anderson, 230 N.C. 54, 51 S.E. 2d 895 (1949). More specifically, this difference lies in the amount of force which may be used to fend off an attack. Except for certain assaults against \\\"handicapped persons\\\" which are deemed felonious under N.C.G.S. \\u00a7 14-32.1(e), a felonious assault involves the use of a deadly weapon and the intent to kill or the infliction of serious injury. N.C.G.S. \\u00a7 14-32 (1981). Other assaults are nonfelonious. N.C.G.S. \\u00a7 14-33 (1981 & Cum. Supp. 1985).\\nTo repel a felonious assault, a defendant may employ deadly force in his defense but only if it reasonably appears necessary to protect himself against death or great bodily harm. State v. Clay, 297 N.C. 555, 256 S.E. 2d 176 (1979), overruled on other grounds, State v. Davis, 305 N.C. 400, 290 S.E. 2d 574 (1982). Deadly force has been defined as \\\"force likely to cause death or great bodily harm.\\\" Id. at 563, 256 S.E. 2d at 182. Although a defendant need not submit in meekness to indignities or violence to his person because the affront does not threaten death or great bodily harm, he may not resort to the use of deadly force to protect himself from mere bodily harm or offensive physical contact. Id. See also, State v. Anderson, 230 N.C. at 56, 51 S.E. 2d at 897. The use of deadly force to prevent harm other than death or great bodily harm is therefore excessive as a matter of law. Clay, 297 N.C. at 563, 256 S.E. 2d at 182.\\nApplying the above principles to the facts of this case, we find that the evidence when taken in the light most favorable to defendant does not require an instruction on self-defense. The knife with a three-inch blade used by defendant against Ward amounted to deadly force since it was likely to cause death or great bodily harm. Even if defendant's evidence regarding Ward's despicable conduct on the day and the night of the stabbing is believed, defendant's evidence shows that he at most committed nonfelonious assaults and employed only nondeadly force against defendant. Immediately prior to the stabbing, defendant, who was safely away from the victim and perfectly free to remain in a safe place, borrowed a knife and returned to the victim's presence displaying the knife. There is no evidence at the time defendant attacked Ward that she was in actual or apparent danger of death or great bodily harm justifying her use of a deadly weapon. Defendant testified that she told Ward that she was going \\\"to get him because I was tired of him hitting on me.\\\" When asked by her counsel on direct examination why she cut Ward, she replied, \\\"I was tired of him beating on me and he knocked me up beside my head.\\\" Thus, defendant's own evidence reveals that the amount of force she used against Ward was excessive and that in any event she was not acting in self-defense when she attacked Ward.\\nFurthermore, a person is entitled under the law of self-defense to harm another only if he is \\\"without fault in provoking, or engaging in, or continuing a difficulty with another.\\\" State v. Anderson, 230 N.C. at 56, 51 S.E. 2d at 897 (emphasis added). The uncontradicted evidence produced at trial reveals that after Ward's assault had ended defendant armed herself and marched back over to him to continue the difficulty between them. It was only after Ward had seen defendant come at him with a knife that he was provoked into assaulting her further.\\nBecause there was no evidence presented which tended to show that defendant was entitled under the law of self-defense to attack Ward with the force and at the time chosen by her, we hold that the trial court properly refused to instruct the jury on the law of self-defense. This assignment of error is overruled.\\nThe State argues that the Court of Appeals erred by reversing and remanding for hearing the question of restitution. The first prong of the State's argument is that defendant did not properly preserve or present the issue of restitution for appellate review. We disagree.\\nDefendant's appeal, standing alone, presents the face of the record for review. State v. Kirby, 276 N.C. 123, 171 S.E. 2d 416 (1970). The judgment is, of course, a part of the record. N.C. R. App. P. 9(a)(3)(vii). Examination of the judgment in the instant case unquestionably discloses that the trial judge did not make and enter findings of fact in adjudging that defendant make restitution as a part of the probationary judgment. Whether the court erred by failing to make findings as to defendant's ability to pay is a question of law and is determinative of this assignment of error. We turn to that question.\\nSection 15A-1343(d) of the General Statutes in pertinent part provides:\\n(d) Restitution as a Condition of Probation. \\u2014 As a condition of probation, a defendant may be required to make restitution or reparation to an aggrieved party or parties who shall be named by the court for the damage or loss caused by the defendant arising out of the offense or offenses committed by the defendant. When restitution or reparation is a condition imposed, the court shall take into consideration the resources of the defendant, his ability to earn, his obligation to support dependents, and such other matters as shall pertain to his ability to make restitution or reparation. The amount must be limited to that supported by the record, and the court may order partial restitution or reparation when it appears that the damage or loss caused by the offense or offenses is greater than that which the defendant is able to pay.\\nThe Court of Appeals, finding error in the restitution order, stated:\\nThe trial court ordered defendant to pay a total of $919.25 for the medical expenses of the victim Ward. The trial court made no findings of fact or conclusions of law as to defendant's ability to earn, her resources, her obligation to support dependents or any other matters that might affect her ability to make restitution. By the clear terms of G.S. 15A-1343(d) this was error.\\n71 N.C. App. at 605, 323 S.E. 2d at 45.\\nAs previously noted, the trial court ordered defendant to pay medical expenses not paid by medical insurance in an amount not to exceed $806.25 to Pitt Memorial Hospital and $113.00 to Dr. John Winstead. These payments were to be made under the supervision and direction of defendant's probation officer during the three year probationary period.\\nProbation or suspension of sentence is not a right guaranteed by either the federal or state constitutions but is a matter of grace conferred by statute. State v. Hewitt, 270 N.C. 348, 154 S.E. 2d 476 (1967); N.C. Gen. Stat. \\u00a7 15A-1341 (1983) et seq.\\nWe do not interpret N.C.G.S. \\u00a7 15A-1343 to require the trial judge to find and enter facts when imposing a judgment of probation. Rather it requires the court to take into consideration the resources of the defendant, her ability to earn, her obligation to support dependents, and such other matters as shall pertain to her ability to make restitution or reparation.\\nThis record clearly shows that these matters were considered by Judge Allsbrook in his judgment ordering restitution. He knew defendant's age, her relationship to the victim, that she resided with her mother, that she was indigent for legal purposes, and that the victim's family had insurance of an uncertain amount in scope at the time of the sentencing hearing. The court's action in remitting the original fine and delegating the determination and scheduling of payments in restitution to the probation officer evidenced the trial judge's full recognition of the matters to be considered pursuant to N.C.G.S. \\u00a7 15A-1343(d).\\nOur interpretation of N.C.G.S. \\u00a7 15A-1343(d) is buttressed by other provisions of Article 82 of the General Statutes. In this regard we note that N.C.G.S. \\u00a7 15A-1341(c) provides:\\n(c) Election to Serve Sentence or Be Tried on Charges.\\u2014\\nAny person placed on probation may at any time during the probationary period elect to serve his suspended sentence of imprisonment in lieu of the remainder of his probation. Any person placed on probation upon deferral of prosecution may at any time during the probationary period elect to be tried upon the charges deferred in lieu of remaining on probation.\\nEven more persuasive are the provisions of N.C.G.S. \\u00a7 15A-1345(e) to wit:\\n(e) Revocation Hearing. \\u2014 Before revoking or extending probation, the court must, unless the probationer waives the hearing, hold a hearing to determine whether to revoke or extend probation and must make findings to support the decision and a summary record of the proceedings. The State must give the probationer notice of the hearing and its purpose, including a statement of the violations alleged. The notice, unless waived by the probationer, must be given at least 24 hours before the hearing. At the hearing, evidence against the probationer must be disclosed to him, and the probationer may appear and speak in his own behalf, may present relevant information, and may confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation. The probationer is entitled to be represented by counsel at the hearing and, if indigent, to have counsel appointed. Formal rules of evidence do not apply at the hearing, but the record or recollection of evidence or testimony introduced at the preliminary hearing on probation violation are inadmissible as evidence at the revocation hearing. When the violation alleged is the nonpayment of fine or costs, the issues and procedures at the hearing include those specified in G.S. 15A-1364 for response to nonpayment of fine.\\nSection 15A-1345 of the North Carolina General Statutes guarantees notice, bail, a preliminary hearing and a revocation hearing with counsel present. At the revocation hearing, the trial judge must make findings to support his decision on whether to revoke or extend probation. He must also make a summary record of the proceedings. Thus, it appears that a defendant is given the election between imprisonment and probation in the first instance; and once he chooses probation, the statute guarantees full due process before there can be a revocation of probation and a resulting prison sentence.\\nFor the reasons stated, the decision of the Court of Appeals is affirmed in part and reversed in part. The judgment entered in Pitt County Superior Court on 28 July 1983 remains in full force and effect.\\nAffirmed in part; reversed in part.\"}" \ No newline at end of file diff --git a/nc/5306524.json b/nc/5306524.json new file mode 100644 index 0000000000000000000000000000000000000000..09462c26685b5a2d490b26333f4c9f5b305c6732 --- /dev/null +++ b/nc/5306524.json @@ -0,0 +1 @@ +"{\"id\": \"5306524\", \"name\": \"STATE OF NORTH CAROLINA v. MARK CHARLES FREUND\", \"name_abbreviation\": \"State v. Freund\", \"decision_date\": \"1990-06-13\", \"docket_number\": \"No. 406A89\", \"first_page\": \"795\", \"last_page\": \"797\", \"citations\": \"326 N.C. 795\", \"volume\": \"326\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T21:56:59.854444+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE OF NORTH CAROLINA v. MARK CHARLES FREUND\", \"head_matter\": \"STATE OF NORTH CAROLINA v. MARK CHARLES FREUND\\nNo. 406A89\\n(Filed 13 June 1990)\\nAutomobiles and Other Vehicles \\u00a7 126.2 (NCI3d)\\u2014 breathalyzer results \\u2014 difference in first and second reading \\u2014 admissible\\nBreathalyzer test results were admissible in a DWI prosecution even though the first and second tests were within .02 of each other only when the first test was rounded down to the nearest hundredth.\\nAm Jur 2d, Automobiles and Highway Traffic \\u00a7\\u00a7 307, 375, 377, 380.\\nJustice Webb dissenting.\\nAPPEAL by the State of North Carolina pursuant to N.C.G.S. \\u00a7 7A-30(2) from the unpublished decision of a divided panel of the Court of Appeals, 95 N.C. App. 661, 384 S.E.2d 309 (1989), affirming the judgment of Strickland, J., at the 3 October 1988 session of Superior Court, ONSLOW County. Heard in the Supreme Court 12 March 1990.\\nLacy H. Thornburg, Attorney General, by Isaac T. Avery, III, Special Deputy Attorney General, for the State-appellant.\\nNo counsel contra.\", \"word_count\": \"566\", \"char_count\": \"3406\", \"text\": \"MEYER, Justice.\\nOn 4 June 1988, defendant was charged with driving while impaired (DWI) in violation of N.C.G.S. \\u00a7 20-139.1. Prior to trial in district court, defendant moved to suppress the results of the chemical analysis performed at the time of his arrest, introducing into evidence the test record cards from which the chemical analyst observed and recorded the test results. Defendant contended that because the marking on the card for the first test indicated a \\\"reading\\\" between 0.14 and 0.15 and the markings on the card for the second test indicated a \\\"reading\\\" of 0.12, the test results were rendered invalid under N.C.G.S. \\u00a7 20-139.1(b3). That subsection provides that \\\"the test results may only be used to prove a person's particular alcohol concentration if . . . [t]he readings do not differ from each other by an alcohol concentration greater than 0.02.\\\" N.C.G.S. \\u00a7 20-139.1(b3)(2) (1983) (emphases added).\\nOn 22 July 1988, District Court Judge Wayne G. Kimble granted defendant's motion. The State petitioned the Superior Court, Onslow County, for writ of certiorari to the district court, seeking to reverse the suppression order. Judge George M. Fountain granted the State's petition on 22 September 1988. On 17 October 1988, Judge James M. Strickland adopted the findings and conclusions of the district court judge and upheld the suppression order.\\nThe State appealed to the Court of Appeals, upon certificate of the prosecutor that such appeal was not taken for the purpose of delay and that the evidence of the breathalyzer results was essential to the prosecution of the case. Relying upon its analysis in State v. Tew, 95 N.C. App. 634, 383 S.E.2d 400 (1989), the Court of Appeals upheld the suppression of the chemical analysis, Judge Cozort dissenting.\\nThe State appealed to this Court as of right, and its requests for writ of supersedeas and stay were allowed by this Court on 25 September 1989. The issue presented in this case is identical to that presented in State v. Tew, 326 N.C. 732, 392 S.E.2d 603 (1990), decided this date. Relying on the reasoning set out in our decision in Tew, we now reverse the Court of Appeals. This case is remanded to the Court of Appeals for further remand to the trial division for proceedings not inconsistent with this opinion.\\nReversed.\"}" \ No newline at end of file diff --git a/nc/571515.json b/nc/571515.json new file mode 100644 index 0000000000000000000000000000000000000000..87f9d35fe9e4950fbc49484edc034c2e96c8e2dd --- /dev/null +++ b/nc/571515.json @@ -0,0 +1 @@ +"{\"id\": \"571515\", \"name\": \"ONSLOW COUNTY v. MOORE\", \"name_abbreviation\": \"Onslow County v. Moore\", \"decision_date\": \"1998\", \"docket_number\": \"No. 223P98\", \"first_page\": \"361\", \"last_page\": \"361\", \"citations\": \"349 N.C. 361\", \"volume\": \"349\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T17:44:57.883782+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ONSLOW COUNTY v. MOORE\", \"head_matter\": \"ONSLOW COUNTY v. MOORE\\nNo. 223P98\\nCase below: 127 N.C.App. 546\", \"word_count\": \"76\", \"char_count\": \"508\", \"text\": \"Petition by defendant (Gene Moore) for discretionary review pursuant to G.S. 7A-31 denied 3 December 1998. Petition by defendant (Onslow County) for discretionary review pursuant to G.S. 7A-31 denied 3 December 1998. Petition by plaintiff (Onslow County) for discretionary review pursuant to G.S. 7A-31 denied 3 December 1998. Petition by plaintiffs (McKillop and Treants) for discretionary review pursuant to G.S. 7A-31 denied 3 December 1998.\"}" \ No newline at end of file diff --git a/nc/6789033.json b/nc/6789033.json new file mode 100644 index 0000000000000000000000000000000000000000..beff89502dcc81b6b5039ced3094cf10e1f856f7 --- /dev/null +++ b/nc/6789033.json @@ -0,0 +1 @@ +"{\"id\": \"6789033\", \"name\": \"STATE OF NORTH CAROLINA v. TRAVIS MELTON SHERMAN, Defendant\", \"name_abbreviation\": \"State v. Sherman\", \"decision_date\": \"2014-01-07\", \"docket_number\": \"No. COA13-811\", \"first_page\": \"670\", \"last_page\": \"676\", \"citations\": \"231 N.C. App. 670\", \"volume\": \"231\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:11:47.258672+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges ERVIN and McCULLOUGH concur.\", \"parties\": \"STATE OF NORTH CAROLINA v. TRAVIS MELTON SHERMAN, Defendant\", \"head_matter\": \"STATE OF NORTH CAROLINA v. TRAVIS MELTON SHERMAN, Defendant\\nNo. COA13-811\\nFiled 7 January 2014\\nJury \\u2014 challenges for cause \\u2014 denied\\u2014no error\\nThe trial court did not err in a first-degree murder case by failing to allow defendant\\u2019s for-cause challenges to two prospective jurors. The court\\u2019s denial of the for-cause challenge to Mr. Antonelli was logically supported by his response that he was willing to follow the judge\\u2019s instructions. Further, based on Mr. Brunstetter\\u2019s testimony, the trial court properly denied the challenge because Mr. Brunstetter could render a fair verdict despite his concerns about the length of the trial.\\nAppeal by defendant from judgment entered 16 August 2012 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 9 December 2013.\\nRoy Cooper, Attorney General, by Jonathan P. Babb, Special Deputy Attorney General, for the State.\\nGlover & Petersen, PA., by James R. Glover and Ann B. Petersen, for defendant-appellant.\", \"word_count\": \"1981\", \"char_count\": \"11763\", \"text\": \"MARTIN, Chief Judge.\\nDefendant Travis Melton Sherman was charged with the murder of Kenneth Edward Ring in violation of N.C.G.S. \\u00a7 14-17. A jury found defendant guilty of first-degree murder, and judgment was entered on the verdict sentencing him to life imprisonment without parole. He appeals.\\nThe facts relevant to the sole issue presented on appeal involve two of defendant's for-cause challenges to prospective jurors. First, defendant moved to excuse prospective juror Mark Antonelli for cause because Mr. Antonelli said he would form opinions during the trial. The trial judge, after questioning Mr. Antonelli, denied defendant's motion, and as a result, defendant used a peremptory challenge to excuse Mr. Antonelli.\\nNext, defendant moved to excuse prospective juror Timothy Brunstetter for cause because he had orders from the United States Marine Corps to report to Quantico, Virginia, before the projected end of the trial. The trial judge denied this motion, and defendant used his sixth and final peremptory challenge to excuse Mr. Brunstetter.\\nAfter defendant used all six of his peremptory challenges, he renewed his motion to remove Mr. Antonelli and Mr. Brunstetter for cause. The trial judge again denied both motions, and defendant asked for additional peremptory challenges. The court refused to give defendant additional peremptory challenges. Later, defendant renewed his request for additional peremptory challenges so he could use one to excuse a prospective juror. The judge again denied the request for additional peremptory challenges. Defendant appeals.\\nOn appeal defendant argues only one issue. He maintains that the trial court's failure to allow his for-cause challenges to prospective jurors Mr. Antonelli and Mr. Brunstetter was prejudicial error that requires a new trial. We disagree.\\nFor a defendant to seek reversal of a judgment based on a trial court's refusal to allow his for-cause challenges, the defendant must comply with N.C.G.S. \\u00a7 15A-1214(h). Compliance with N.C.G.S. \\u00a7 15A-1214(h) is mandatory and is the only way to preserve for appellate review the denial of a for-cause challenge. State v. Sanders, 317 N.C. 602, 608, 346 S.E.2d 451, 456 (1986). Section 15A-1214 requires that\\n(h) In order for a defendant to seek reversal of the case on appeal on the ground that the judge refused to allow a challenge made for cause, he must have:\\n(1) Exhausted the peremptory challenges available to him;\\n(2) Renewed his challenge as provided in subsection (i) of this section; and\\n(3) Had his renewal motion denied as to the juror in question.\\n(i) A party who has exhausted his peremptory challenges may move orally or in writing to renew a challenge for cause previously denied if the party either:\\n(1) Had peremptorily challenged the juror; or\\n(2) States in the motion that he would have challenged that juror peremptorily had his challenges not been exhausted.\\nN.C. Gen. Stat. \\u00a7 15A-1214(h)-(i) (2011).\\nA review of the transcript reveals that defendant complied with N.C.G.S. \\u00a7 15A-1214(h). He moved to excuse Mr. Antonelli for cause, and the court denied that motion. Defendant then used a peremptory challenge to excuse Mr. Antonelli. Defendant also moved to excuse Mr. Brunstetter for cause, and the court denied that motion. As a result, defendant used his final peremptory challenge to excuse Mr. Brunstetter. After defendant used his final peremptory challenge, he renewed his motions to excuse Mr. Antonelli and Mr. Brunstetter for cause, and the court denied both motions. Therefore, defendant has complied with the provisions of N.C.G.S. \\u00a7 15A-1214(h).\\nN.C.G.S. \\u00a7 15A-1212 lists the grounds for challenges for cause to a prospective juror. \\\"We review a trial court's ruling on a challenge for cause for abuse of discretion.\\\" State v. Lasiter, 361 N.C. 299, 301, 643 S.E.2d 909, 911 (2007). A trial court abuses its discretion when its ruling is \\\"manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\\\" State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1998). When we review a trial judge's ruling we consider only whether it is supported by the record, not whether we agree with the ruling. Lasiter, 361 N.C. at 302, 643 S.E.2d at 911. This is a deferential standard of review because a trial judge has the advantage of interacting with a juror. Id.\\nDefendant argues that Mr. Antonelli should have been excused for cause because he responded that he would form opinions during the trial, which would substantially impair his ability to follow and apply the law. Defendant fails to state the statutory ground upon which he is relying for his for-cause challenge, but, for two reasons, it is implied that he is relying on N.C.G.S. \\u00a7 15A-1212(8), which allows a for-cause challenge when, \\\"[a]s a matter of conscience, . . [a juror] would be unable to render a verdict with respect to the charge in accordance with the law of North Carolina.\\\" N.C. Gen. Stat. \\u00a7 15A-1212(8) (2011). First, defendant argues that forming opinions during trial would impair Mr. Antonelli's ability to apply the law of North Carolina. Second, defendant cites Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776 (1968), in support of his argument, which the General Assembly codified at N.C.G.S. \\u00a7 15A-1212(8). N.C. Gen. Stat. \\u00a7 15A-1212 official commentary (2011). Therefore, while defendant fails to state that he is relying on N.C.G.S. \\u00a7 15A-1212(8), we infer he is relying on N.C.G.S. \\u00a7 15A-1212(8) based on his argument.\\nA review of the transcript reveals the following relevant exchanges:\\nMR. DOLAN: Let me ask you this:... Can you be sure that you would wait until all of the evidence was presented before you came and started to make any decision in this case?\\n[MR. ANTONELLI]: I don't think I could guarantee that, but I think I would be able to, but I couldn't guarantee it.\\nMR. DOLAN: What do you mean you don't think you [can] guarantee it?\\n[MR. ANTONELLI]: Well, because you form opinions as it goes on and it changes.\\nMR. DOLAN: And are you saying that you think you would form opinions as the case went on?\\n[MR. ANTONELLI]: Probably.\\nMR. DOLAN: . . . Are you saying you don't think that you can wait, that you're probably going to form opinions along the way?\\n[MR. ANTONELLI]: Most likely.\\nMR. DOLAN: I would move for cause, your Honor.\\nTHE COURT: Yes.\\nMr. Antonelli, let me follow-up with just a question for you. You've already heard me instruct several times to that one of the rules you have to follow is to [sic] not form or express any opinions about the outcome of this case, and there are a number of important steps that a case must go through. There is the evidence, there is the arguments of counsel, there is my instructions on the law, and then there's deliberation. What we require of jurors is the ability to keep an open mind and not form or express opinions until they get into the jury deliberation room, engage in deliberation with their fellow jurors, consider all of the things I've just described. Do you believe that you could fulfill that duty as a juror?\\n[MR. ANTONELLI]: Yes, but I believe I would still form an opinion but can still be open-minded.\\nTHE COURT: In the event that you were instructed on the law or persuaded by an argument or persuaded by evidence later in the trial that your opinion was perhaps in error, would you be able to set aside any opinion that you had formed and listen to either of the evidence or the instructions or the argument or the deliberation in views of your fellow jurors? Would you be able to set aside any opinion that you had formed and render a verdict according to the instructions, the law, and the argument and the evidence?\\n[MR. ANTONELLI]: I believe so. I can't guarantee that, but I believe so.\\nTHE COURT: And when you say you can't guarantee that, what do you mean by that?\\n[MR. ANTONELLI]: I've never been through this so I don't know how my opinion is going to form...\\nTHE COURT: Are you willing to follow my instructions to keep an open mind throughout this case?\\n[MR. ANTONELLI]: Yes.\\nTHE COURT: I'm going to deny the motion for cause at this time.\\nMR. DOLAN: I just want to be clear, Mr. Antonelli, and I'm not trying to pick on you. Is it your position that you will form an opinion as the case progresses?\\n[MR. ANTONELLI]: I would probably say most likely, yeah, I would form an opinion as it was going on, but I can't guarantee that I definitely will.\\nThe above-quoted portion of voir dire demonstrates that the trial court did not abuse its discretion when disallowing the for-cause challenge. The trial judge was in the best position to observe Mr. Antonelli and to weigh and decide the credibility of his responses. The judge's denial of the for-cause challenge to Mr. Antonelli is logically supported by his response that he was willing to follow the judge's instructions. Therefore, the trial court did not err when disallowing defendant's for-cause challenge to Mr. Antonelli.\\nNext, defendant argues, without citing any statutory authority or case law, that the trial court erred when it denied his for-cause challenge to Mr. Brunstetter because he was a Marine with orders to report to Quantico, Virginia, before the projected end of the trial. We assume that defendant is relying on the catch-all provision of N.C.G.S. \\u00a7 15A-1212 for his challenge, which allows a for-cause challenge when a juror \\\"[f]or any other cause is unable to render a fair and impartial verdict.\\\" N.C. Gen. Stat. \\u00a7 1212(9).\\nOur Supreme Court considered whether a prospective juror could render a fair verdict because he was concerned about the estimated time of the trial in State v. Reed, 355 N.C. 150, 160, 558 S.E.2d 167, 174 (2002), appeal after remand, 162 N.C. App. 360, 590 S.E.2d 477 (2004). The Court concluded that the trial court did not abuse its discretion when it denied the for-cause challenge. Id. In reaching this conclusion, the Court noted that trial judges routinely decide whether to excuse a prospective juror because of concerns about the length of a trial. Id. Also, in Reed, despite the estimated length of the trial, the prospective juror stated that he could be fair to both sides. Id. .\\nIn this case, the trial court did not abuse its discretion in refusing to allow the for-cause challenge. Mr. Brunstetter twice asserted that despite his orders to report to Quantico, Virginia, he could focus on the trial if he was selected to be a juror. Also, the trial court was able to observe Mr. Brunstetter when he made these statements. Therefore, based on Mr. Brunstetter's testimony, the trial court properly denied the challenge because Mr. Brunstetter could render a fair verdict despite his concerns about the length of the trial.\\nNo Error.\\nJudges ERVIN and McCULLOUGH concur.\"}" \ No newline at end of file diff --git a/nc/6797833.json b/nc/6797833.json new file mode 100644 index 0000000000000000000000000000000000000000..5289aa08922aebf8def5258d56b0461181bd9f10 --- /dev/null +++ b/nc/6797833.json @@ -0,0 +1 @@ +"{\"id\": \"6797833\", \"name\": \"THE STATE vs. JOHN HARWOOD\", \"name_abbreviation\": \"State v. Harwood\", \"decision_date\": \"1864-06\", \"docket_number\": \"\", \"first_page\": \"228\", \"last_page\": \"233\", \"citations\": \"1 Win. 228\", \"volume\": \"60\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T22:50:01.921104+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE STATE vs. JOHN HARWOOD\", \"head_matter\": \"THE STATE vs. JOHN HARWOOD\\nit a -i'1 viviid obj(0i)O\\\" in t, \\u2022 . '\\u25a0 5rd\\u2019. \\u25a0' si.rl \\u25a0 jcot. hi a capital caw-, 1 .at. i In' roin.' \\u00fa'\\u00ab\\u2018S jjot :.n! \\u00a1Win 5 \\u25a0>-> \\u00ed ,. tO -! vi i y \\u00a1nuii'S Uic inflii'\\u00ed'\\u00fc.'-/,. . \\u25a0 \\u25a0*' \\u2019v hill.\\u201d \\u2019.nr ;\\u00a1:\\u00ab.\\u00a1 f,!V of a, yOn wiv'S'-\\u00a1(\\u25a0\\u00a1-I\\u00f1iioif} \\u2018h 1 ' i. > . \\u25a0 i futi'i.'. vvdc nn>.).. - i j a k, t<> :!i.- li/.i:.' .\\n'J.oe.- I/I tli.s SW-- on !< ; S:.t. ,:>\\u25a0 , \\u00a1' . .\\u00fc-i l;. 54u; sui: as. v,..-, r .\\u2022 - \\u25a0-.\\u25a0.v\\nTbe prisoner was \\u00edndice; in rim Suporh ; Court o! Tv. for Wake County ami tno cane was re, loved to Cm >Snpm-ior Court for Johnston County, vnereir, was tried at toe bn, ,-ug Term, 186-1. before Death Judge,\\nThe transcript, of the r< cord from the Cnperuu Courl. oi Wake sc-n out tbe holding of the Superior Court on the first Monday aflor the fourth Monday of Seplembo!, A. D.f 1862, the return oi the venire by the Sheriff ami lito names of the jurors and proceeds in those words, \\u201c'and {hereupon, by the oath of Thomas Whitaker, \\u2018\\u25a0broman. John Adams, &re., croud ami iaw.'ul men of tbe county aforesaid, then and ti.mv drawn from the said run.;1', ami then and \\u00edbero em-joao-'I'.-ii, sw, rn and ohm ge l to in pure for the (State of ami coi-c ail crime., and olienee oommiue ! within the body of the said cm,;1 i! n/preseii\\u00edH inunaam : and ie Poor uoi know that -he is doing wrong, then he would not be respons'lde. And further, that the law .\\u00a1oes n-.t recognize irresistible impulses as excuses for criminal acts which the mind of the actor recognized as wrong ; that in this case, if the prisoner w is insane to t he extent above stated, then he would not bo guilty ; an l this was equally true win\\\"her the insanity was temporary \\u2014 existing at the .time of thi-act done \\u2014 or permanent. \\u25a0 -\\nTao judge further charged the jury that there was no evidence tending to show that; the killing was in necessary self-defence.\\nThat if the prisoner bad cause to believe, and did be--lieve that the deceased intended to kill him, and the prisoner killed deceased simply because of such belief, the kill-ingwould he murder ; in order to excuse or mitigate the killing, the deceased must have been in a condition actual or apparent to kill the prisoner.\\nThat if the prisoner had good cause to believe, and did' believe, that the deceased intended to kill him, and the deceased was in apparent condition to execute such intention, andtheprisoner killed the deceased when the-prisoner might have retreated without danger of death or other great, bodily harm, then the prisoner would he guilty of manslaughter at least.\\nThe juiy found the prisoner guilty of murder.\\nThere vas a motion in arrest of judgment.. 1st. because the record does not show that the indictment was found a true bill' by the grand jury. 2d. The record does not show that the witnesses on whose testimony the indictment was .found, were sworn before they were sent to the grand jury.\\nThe motion was overruled and judgment was rendered according to the verdict.\\n--for the State.\\nWinston, Cr., for the prisoner.\", \"word_count\": \"1911\", \"char_count\": \"10515\", \"text\": \"Mavi.y J.\\nThe ease in the Court below seems to be set forth in the record with particularity. The evidence, as well as the charge of Cue presiding judge, seem to he full and completo.\\nWi have examined these hi connexion with each other, and are of opinion that the .chavge is applicable and ie-sponsion to evi-ry view which can properly he lal-cn <>1 the evidence, and that tl e pen,oner hVs no cai.se o\\u00ed' cc n j hunt.\\nW\\u00f3 have had no particular part of the charge called to our attention by way of exception, and' suppose there is none in the view of prisoner's counsel that affords ground for such criticism. - .\\nThe principles propounded to the jury in the Court below, whether they relate to the . grades of homicide or the question of insanity, have been so frequently discussed in this-Cpurt, down to a recent period, that we deem it unnec-' 'essary to repeat them now. They consist with what we regard as the settled and established law of the land.\\nThe grounds talren in arrest of judgment are not \\u00a1enable. These are also settled against the prisoner by recent adjudications in this Court. '*\\nState vs. Guilford, 4 Jones, 83; State vs. Roberts, 2 Dev. and Bat., 540; State vs. Barnes, 7 Jones, 20.\\nThe record upon which the judgment* below was pronounced, as stated by the Court, follows the precedent in the appendix to 4 Blacks. Com. This has been adopted by Mr. Eaton in bis book of forms, ami approved in this Court, as will be seen in the case of the State vs. Guilford.\\nThe prisoner was tried for a homicide which, for aught that appears, was unprovoked and wanton. He has had fhe benefit; of every proper. safe-guard afforded by the C urts under the rules of law, and the record sent to this Court seems to be free from defects. \\u2022 * .\\nThis opinion 'must be cortiiied to the Superior Court of law for Johnston County that it may proceed1 to pronounce judgment according to law.\"}" \ No newline at end of file diff --git a/nc/8185026.json b/nc/8185026.json new file mode 100644 index 0000000000000000000000000000000000000000..74887c917b89af70c3b51695025be2e7f7ee7a02 --- /dev/null +++ b/nc/8185026.json @@ -0,0 +1 @@ +"{\"id\": \"8185026\", \"name\": \"IN THE MATTER OF: J.L.H.\", \"name_abbreviation\": \"In re J.L.H.\", \"decision_date\": \"2007-06-19\", \"docket_number\": \"No. COA06-984\", \"first_page\": \"180\", \"last_page\": \"183\", \"citations\": \"184 N.C. App. 180\", \"volume\": \"184\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:53:28.090960+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges TYSON and GEER concur.\", \"parties\": \"IN THE MATTER OF: J.L.H.\", \"head_matter\": \"IN THE MATTER OF: J.L.H.\\nNo. COA06-984\\n(Filed 19 June 2007)\\nAgency\\u2014 principal-agent relationship \\u2014 Department of Health and Human Services \\u2014 county Department of Social Services\\nThe Court of Appeals granted appellee Department of Health and Human Services\\u2019s (DHHS) motion to dismiss the appeal filed by Onslow County DSS and New Hanover County DSS regarding the orders entered 20 January 2006 as amended 2 February 2006, finding the juveniles dependent, giving custody of two of the minor children to Onslow County DSS and New Hanover County DSS, transferring venue to those counties, and the 21 March 2006 order allowing the intervention of DHHS, because: (1) there is a principal-agent relationship between DHHS and the DSS of individual counties; (2) the director of each county\\u2019s DSS is required, as part of its duties and responsibilities under N.C.G.S. \\u00a7 108A-14, to act as agent of the Social Services Commission and DHHS in the county; and (3) the nature of the relationship would be destroyed if the agent were capable of acting on the principal\\u2019s behalf without being subject to the principal\\u2019s authority and direction.\\nAppeal by Onslow County Department of Social Services from order entered 20 January 2006 as amended 2 February 2006 by Judge Douglas B. Sasser in Brunswick County Superior Court. Heard in the Court of Appeals 7 March 2007.\\nDean W . Hallandsworth and Julia Talb\\u00fatt, for the appellant (New Hanover County Department of Social Services).\\nJames W. Joyner; for the appellant (Onslow County Department of Social Services).\\n. Attorney General Roy Cooper, by Assistant Attorney General David Gordon, for the respondent-appellee (Department of Health and Human Services).\", \"word_count\": \"1161\", \"char_count\": \"7209\", \"text\": \"ELMORE, Judge.\\nFollowing the mishandling of their cases, three juveniles, Z.D.H., J.L.H., and T.H., filed suit against Brunswick County Division of Social Services (DSS), the Department of Health and Human Services (DHHS), and various other defendants. The complaint alleged that Brunswick County DSS and the other named defendants were negligent in furnishing social and mental health services to the minors. The case settled, and in the settlement order the Superior Court judge determined that the suit created a conflict of interest between Brunswick County DSS and the juveniles. The Superior Court judge therefore declared the juveniles, who were at that time in the custody of Brunswick County DSS, dependant because it was no longer appropriate for Brunswick County DSS to be legally responsible for the children. The Superior Court issued an order within its settlement order requiring the counties in which the juveniles were then living (Onslow and New Hanover) to file petitions for dependency. Those counties, which were not parties to the litigation, did not file such petitions.\\nBrunswick County DSS subsequently filed a petition for a review hearing in Brunswick County District Court. The District Court judge, Judge Sasser, found the juveniles dependent as a result of the conflict created by the suit. He placed J.L.H. in the custody of Onslow County DSS, and Z.D.H. in the custody of New Hanover County DSS. Finally, he ordered that the children's cases be transferred to the district courts in the new counties.\\nFollowing motions for stay and motions for relief filed by Onslow County DSS and New Hanover County DSS, the DHHS filed a motion to intervene that was allowed on 21 March 2006. Onslow County DSS and New Hanover County DSS now appeal the orders entered 20 January 2006 as amended 2 February 2006,- finding the juveniles dependent; giving custody of J.L.H. and Z.D.H. to Onslow County DSS and New Hanover County DSS, respectively; transferring venue to those counties; and the 21 March 2006 order allowing the intervention of DHHS.\\nBefore reaching appellants' assignments of error, we must address the preliminary issue of the principal-agent relationship between appellee DHHS and Onslow County DSS and New Hanover County DSS. Prior to oral arguments, DHHS submitted a motion to dismiss this appeal, contending that the principal-agent relationship between it and the county entities rendered this appeal null and void, and thus subject to dismissal. On 22 January 2007, this panel denied the motion to dismiss. Upon further review of the issue, we rescind our denial of the motion and grant DHHS's motion to dismiss.\\nAs argued in the motions for reconsideration filed in Superior Court, and revisited by the motions to dismiss, there is a principal-agent relationship between DHHS and the DSS of individual counties. It appears that Onslow County DSS does not dispute the agency relationship and that New Hanover County DSS does. Regardless, it is clear that:\\n[b]ased on the plain language of our statutory law governing social services and the provision of child protective services, the Department of Human Resources has substantial and official control over the provision of child protective services and designates the county director as the person responsible for carrying out the policies formulated by the Department, through the Social Services Commission and the Division of Social Services. \\\"Thus, in practice, as well as in name, the role of the County Director in the delivery of [child protective] services is that of an agent. Like the agent, the County Director acts on behalf of the Department of Human Resources and is subject to its control with respect to the actions he takes on its behalf.\\\"\\nGammons v. North Carolina Dep't of Human Resources, 344 N.C. 51, 64, 472 S.E.2d 722, 729 (1996) (quoting Vaughn v. North Carolina Dep't of Human Resources, 296 N.C. 683, 690, 252 S.E.2d 792, 797 (1979)).\\nIndeed, the director of each county's DSS is required, as part of its duties and responsibilities as outlined by statute, \\\"[t]o act as agent of the Social Services Commission and Department of 'Health and Human Services in relation to work required by the Social Services Commission and Department of Health and Human Services in the county.\\\" N.C. Gen. Stat. \\u00a7 108A-14 (2005).\\nBecause there is an agency relationship between DHHS and the counties' DSS, this appeal is improper. It is axiomatic that the principal controls the agent. See State v. Weaver, 359 N.C. 246, 258, 607 S.E.2d 599, 606 (2005) (\\\"Two essential elements of an agency relationship are: (1) the authority of the agent to act on behalf of the principal, and (2) the principal's control over the agent.\\\"). The nature of the relationship would be destroyed if the agent were capable of acting on the principal's behalf without being subject to the principal's authority and direction.\\nIn the present case, DHHS is the principal to both DSS divisions. Each county's DSS must act as instructed by their principal; the agency relationship therefore renders this appeal a nullity. Accordingly, we rescind our previous denial of DHHS's motion to dismiss, and grant the motion on reconsideration.\\nDismissed.\\nJudges TYSON and GEER concur.\\n. Z.D.H. is the subject of a companion case, In re Z.D.H. Brunswick County Department of Social Services filed an adoption petition on T.H.'s behalf and was in the process of facilitating that adoption on 19 January 2006; her case has not been appealed to this Court.\"}" \ No newline at end of file diff --git a/nc/8548642.json b/nc/8548642.json new file mode 100644 index 0000000000000000000000000000000000000000..0f80da5e1b179742c7d31e5928c4b45ac114f43c --- /dev/null +++ b/nc/8548642.json @@ -0,0 +1 @@ +"{\"id\": \"8548642\", \"name\": \"THE NORTH CAROLINA STATE BAR, Complainant v. ELAM REAMUEL TEMPLE, Attorney at Law, Smithfield, North Carolina, Respondent\", \"name_abbreviation\": \"North Carolina State Bar v. Temple\", \"decision_date\": \"1969-10-22\", \"docket_number\": \"No. 6911SC489\", \"first_page\": \"437\", \"last_page\": \"439\", \"citations\": \"6 N.C. App. 437\", \"volume\": \"6\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:53:10.762695+00:00\", \"provenance\": \"CAP\", \"judges\": \"Campbell and PARKER, JJ., concur.\", \"parties\": \"THE NORTH CAROLINA STATE BAR, Complainant v. ELAM REAMUEL TEMPLE, Attorney at Law, Smithfield, North Carolina, Respondent\", \"head_matter\": \"THE NORTH CAROLINA STATE BAR, Complainant v. ELAM REAMUEL TEMPLE, Attorney at Law, Smithfield, North Carolina, Respondent\\nNo. 6911SC489\\n(Filed 22 October 1969)\\n1. Appeal and Error \\u00a7 39\\u2014 failure to aptly docket record on appeal\\nAppeal is dismissed by the Court of Appeals eco mero motu for failure to docket the record on appeal within 90 days after the order appealed from as required by Rule 5. Court of Appeals Rule No. 48.\\n2. Criminal Law \\u00a7 131\\u2014 new trial for newly discovered evidence \\u2014 discretion of court\\nMotion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court, and decision of the trial court on such a motion is not reviewable absent an abuse of discretion.\\nAppeal from Hobgood, J., 31 March 1969 Session of JohNSTon County Superior Court.\\nThis is an appeal by the respondent from an order and a judgment entered on 5 May 1969. The order denied respondent\\u2019s motion for a new trial on the grounds of newly discovered evidence. The judgment affirmed a prior judgment disbarring respondent from the practice of law and ordered that judgment into effect from 29 January 1969, the date an opinion of this court affirming the judgment of disbarment was certified to the Clerk of Superior Court of Johnston County.\\nRobert B. Morgan, Attorney General, for plaintiff appellee.\\nE. R. Temple in propria persona.\", \"word_count\": \"739\", \"char_count\": \"4275\", \"text\": \"GRAHAM, J.\\nJudgment disbarring the respondent from the practice of law was entered 24 October 1967 after a jury had found him guilty of six separate acts of fraudulent and unprofessional conduct. The respondent's appeal was docketed and calendared but he did not appear in this court to argue. His appeal was nevertheless given thorough consideration and all assignments of error were disposed of in the opinion of Britt, J., State Bar v. Temple, 2 N.C. App. 91, 162 S.E. 2d 649. Thereafter the respondent petitioned for a rehearing, specifically requesting that oral arguments be directed. His petition was granted and the matter was duly docketed and calendared for hearing. Again the respondent did not appear to argue, nor did the attorney who signed his brief. The respondent's assignments of error were again found to be without merit. State Bar v. Temple, 3 N.C. App. 73, 164 S.E. 2d 13. On 3 December 1968 the respondent filed notice of appeal in the Supreme Court of North Carolina, alleging he was appealing as a matter of right. The appeal was dismissed by the Supreme Court on 21 January 1969. On 12 February 1969, the respondent filed a motion for a new trial in the Supreme Court on the grounds of newly discovered evidence. Upon being advised that the matter was not then pending in the Supreme Court, the respondent filed a similar motion in the Superior Court of Johnston County. The order denying that motion and the entering of the formal judgment of execution are the subject of this appeal.\\nThe order and judgment appealed from are dated 5 May 1969. To properly effect this appeal it was necessary that the respondent docket the record on appeal in this court within ninety days after 5 May 1969. Rule 5, Rules of Practice in the Court of Appeals of North Carolina. The ninetieth day was on Sunday, 3 August 1969, so the respondent had through Monday, 4 August 1969, to docket the appeal. However, the appeal was not docketed in this court until 26 August 1969. No order appears in the record before us extending the time within which the appeal could be docketed and in accordance with the practice of this court and pursuant to Rule 48, Rules of Practice, supra, this appeal is dismissed ex mero motu for failure to docket within the time prescribed by Rule 5.\\nIn dismissing this appeal we nevertheless note that the respondent's motion for a new trial was addressed to the sound discretion of the trial court. The decision of the trial court is not reviewable absent an abuse of discretion and no such abuse has been shown. State v. Morrow, 264 N.C. 77, 140 S.E. 2d 767; Allen v. Gooding, 174 N.C. 271, 93 S.E. 740. The defendant's motion and affidavits fall far short of establishing the necessary prerequisites for granting a new trial on the basis of newly discovered evidence. State v. Casey, 201 N.C. 620, 161 S.E. 81.\\nAppeal dismissed.\\nCampbell and PARKER, JJ., concur.\"}" \ No newline at end of file diff --git a/nc/8548992.json b/nc/8548992.json new file mode 100644 index 0000000000000000000000000000000000000000..4b88b70c8056bbcda64f5f4f87fe1a31f5ad60e4 --- /dev/null +++ b/nc/8548992.json @@ -0,0 +1 @@ +"{\"id\": \"8548992\", \"name\": \"STATE OF NORTH CAROLINA v. CALBERT REID\", \"name_abbreviation\": \"State v. Reid\", \"decision_date\": \"1972-04-26\", \"docket_number\": \"No. 7226SC210\", \"first_page\": \"289\", \"last_page\": \"290\", \"citations\": \"14 N.C. App. 289\", \"volume\": \"14\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T02:46:49.477025+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges Morris and Parker concur.\", \"parties\": \"STATE OF NORTH CAROLINA v. CALBERT REID\", \"head_matter\": \"STATE OF NORTH CAROLINA v. CALBERT REID\\nNo. 7226SC210\\n(Filed 26 April 1972)\\nAppeal by defendant from Friday, Judge, 1 November 1971 Schedule \\u201cA\\u201d Session of Superior Court held in Mecklenburg County.\\nDefendant pleaded guilty to the felony of breaking and entering with intent to steal as charged in a bill of indictment, proper in form.\\nFrom judgment of imprisonment for a period of two years in the custody of the Commissioner of Corrections as a \\u201cCommitted Youthful Offender\\u201d for treatment and supervision pursuant to Article 3A of the General Statutes of North Carolina, the defendant appealed.\\nAttorney General Morgan and Assistant Attorney General Cole for the State.\\nCharles B. Merryman, Jr., for defendant appellant.\", \"word_count\": \"161\", \"char_count\": \"1029\", \"text\": \"MALLARD, Chief Judge.\\nAfter questioning the defendant, the trial court found that his plea of guilty was freely, understandingly and voluntarily made. The punishment imposed was permitted under the statute. No prejudicial error appears on the face of the record.\\nAffirmed.\\nJudges Morris and Parker concur.\"}" \ No newline at end of file diff --git a/nc/8549418.json b/nc/8549418.json new file mode 100644 index 0000000000000000000000000000000000000000..ba042633de4c6f65f68a3768ba71db75f6aec0b0 --- /dev/null +++ b/nc/8549418.json @@ -0,0 +1 @@ +"{\"id\": \"8549418\", \"name\": \"STATE OF NORTH CAROLINA v. JAMES CLAY PENLAND\", \"name_abbreviation\": \"State v. Penland\", \"decision_date\": \"1973-11-28\", \"docket_number\": \"No. 7328SC693\", \"first_page\": \"73\", \"last_page\": \"74\", \"citations\": \"20 N.C. App. 73\", \"volume\": \"20\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T21:45:34.142126+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges Hedrick and Vaughn concur.\", \"parties\": \"STATE OF NORTH CAROLINA v. JAMES CLAY PENLAND\", \"head_matter\": \"STATE OF NORTH CAROLINA v. JAMES CLAY PENLAND\\nNo. 7328SC693\\n(Filed 28 November 1973)\\nCriminal Law \\u00a7 116\\u2014 instruction on defendant\\u2019s failure to testify \\u2014 no error\\nWhile it is better, in the absence of a request, to give no instruction, the trial court\\u2019s instruction on defendant\\u2019s failure to testify which incorporated the precise language of G.S. 8-54 was not error.\\nAppeal by defendant from Lanier, Judge, 26 February 1973, Criminal Session, Buncombe Superior Court.\\nThe defendant was charged with armed robbery. From a verdict of guilty and a sentence of not less than 15 years and not more than 20 years, the defendant appealed.\\nAttorney General Robert Morgan by Associate Attorney William Woodward Webb for the State.\\nRobert S. Swain and Joel Stevenson for defendant appellant.\", \"word_count\": \"455\", \"char_count\": \"2623\", \"text\": \"CAMPBELL, Judge.\\nThe defendant's only contention is that error was committed when the trial court, without being requested to do so, instructed the jury that the defendant had not testified in his own behalf and that the law of North Carolina gave him the right to do so. Defendant contends that he was prejudiced because the trial court did not instruct the jury that it was not to consider the defendant's action in any manner in reaching their verdict.\\nThe actual instructions to the jury on this point were:\\n\\\"Now the defendant in this case has not testified. The law of North Carolina gives him this privilege. He may or may not testify in his own behalf as he sees fit. This same law also assures him that his decision not to testify shall not create any presumption against him.\\\"\\nIn State v. Barbour, 278 N.C. 449, 180 S.E. 2d 115 (1971), cert. denied, 404 U.S. 1023, 92 S.Ct. 699, 30 L.Ed. 2d 673 (1972), the court stated: \\\"Ordinarily, it would seem better to give no instruction concerning a defendant's failure to testify unless such an instruction is requested by the defendant.\\\" While it is better, in the absence of a request, to give no instruction, nevertheless, we find no error in this instance. An instruction such as the one here which incorporates the precise language of G.S. 8-54 is not only acceptable, it has often been suggested as being the preferred instruction. State v. McNeill, 229 N.C. 377, 49 S.E. 2d 733 (1948); State v. Powell, 11 N.C. App. 465, 181 S.E. 2d 754 (1971), cert. denied, 279 N.C. 396, 183 S.E. 2d 243 (1971); State v. House, 17 N.C. App. 97, 193 S.E. 2d 327 (1972); State v. Phifer, 17 N.C. App. 101, 193 S.E. 2d 413 (1972), cert. denied, 283 N.C. 108, 194 S.E. 2d 636 (1973).\\nThe defendant had a fair and impartial trial free from prejudicial error.\\nNo error.\\nJudges Hedrick and Vaughn concur.\"}" \ No newline at end of file diff --git a/nc/8549864.json b/nc/8549864.json new file mode 100644 index 0000000000000000000000000000000000000000..4a3467a30eb457255e61887c9726fd8d1a128179 --- /dev/null +++ b/nc/8549864.json @@ -0,0 +1 @@ +"{\"id\": \"8549864\", \"name\": \"JOHN R. SPECK v. MIRIAM N. PARTRIDGE SPECK\", \"name_abbreviation\": \"Speck v. Speck\", \"decision_date\": \"1969-07-23\", \"docket_number\": \"No. 6910DC338\", \"first_page\": \"296\", \"last_page\": \"309\", \"citations\": \"5 N.C. App. 296\", \"volume\": \"5\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T02:46:39.864943+00:00\", \"provenance\": \"CAP\", \"judges\": \"BeocK and Moeeis, JJ., concur.\", \"parties\": \"JOHN R. SPECK v. MIRIAM N. PARTRIDGE SPECK\", \"head_matter\": \"JOHN R. SPECK v. MIRIAM N. PARTRIDGE SPECK\\nNo. 6910DC338\\n(Filed 23 July 1969)\\n1. Statutes \\u00a7 8\\u2014 retroactive effect\\nOrdinarily, a statute will not apply to litigation pending on tlie effective date of the statute unless there is a legislative intent to the contrary.\\n2. Divorce and Alimony \\u00a7 22\\u2014 child support and custody \\u2014 applicability of statutes\\nG.S. 50-13.1 through G.S. 50-13.8, relating to the custody and support of minor children, do not apply to litigation pending on 1 October 1967, the effective date of the statutes.\\nS. Divorce and Alimony \\u00a7 22\\u2014 child support and custody \\u2014 jurisdiction \\u2014 child over 21\\nAlthough child of the parties was 34. years old, was residing in another state and had not been adjudged incompetent, trial court had authority to award custody of and support for the child to the mother and to determine visitation rights of the father, where the parents were before the court and subject to its in personam jurisdiction and where there was psychiatric and medical evidence that the child was mentally and physically disabled.\\n4. Parent and Child \\u00a7 7\\u2014 father\\u2019s duty to support child over 21\\nThe presumption that a child reaching the age of 21 will be capable of maintaining himself is rebutted by the fact of the child\\u2019s mental or physical incapacity, and the obligation of the father to support the child continues. This rule is codified by G.S. 50-13.8.\\n5. Divorce and Alimony \\u00a7 18\\u2014 alimony without divorce \\u2014 subsistence pendente lite \\u2014 abandonment \\u2014 allegations\\nWife\\u2019s allegations to the effect that the husband was irritable and difficult to live with, that he had a fear of death, diseases and illness which affected the relationships with his son who was suffering from permanent brain damage and with the wife after she underwent surgery for removal of a malignant cancer, that the wife was forced to seek employment in another town to alleviate the financial position of herself and the children, that the husband told her to discontinue visits to the home and later sold the home without finding a new one, and that he secretly went to live in another state, are held sufficient to state a cause of action under [former] G.S. 50-16 for subsistence pendente lite in wife\\u2019s cross-action for alimony without divorce on ground of abandonment.\\n6. Divorce and Alimony '\\u00a7 18\\u2014 subsistence pendente lite \\u2014 determination by judge\\nIn passing upon motions for subsistence pendente lite, the trial judge is expected to look into the merits of the action and determine in his sound legal discretion, after considering the allegations of the complaint and the evidence of the parties, whether or not the movant is entitled to the relief sought.\\n'7. Divorce and Alimony \\u00a7 18\\u2014 subsistence pendente lite \\u2014 finding that husband was wrongdoer \\u2014 presumption\\nIn a hearing under [former] G.S. 50-16 to award the wife counsel fees \\u25a0pendente lite, it is unnecessary for the trial judge to make finding of fact that the husband was a wrongdoer, since it will be presumed that the court, for purposes of the hearing, found that the husband had wrongfully abandoned the wife as alleged in the wife\\u2019s cross-action.\\n8. Divorce and Alimony \\u00a7 24\\u2014 visitation rights \\u2014 jurisdiction\\nWhere both husband and wife were before the court, trial judge could properly establish visitation rights, regardless of the child\\u2019s residence.\\n9. Divorce and Alimony \\u00a7 23\\u2014 order requiring child support \\u2014 validity\\nOrder requiring that the husband pay the wife for child support pen-dente lite the sum of $200 per month commencing 15 February 1969, and on or before the 15th day of each month thereafter, is held not impossible of being carried out in that the order was rendered on 17 February, since husband could have reasonably complied with the order by making the February payment at anytime after 17 February.\\n10. Divorce and Alimony \\u00a7 23\\u2014 child support \\u2014 review of judge\\u2019s discretion\\nThe amount the husband is required to pay for the support of his child is determined by the trial judge in the exercise of his sound discretion, and his decision is not reviewable in the absence of abuse of discretion.\\n11. Divorce and Alimony \\u00a7 23\\u2014 child support pendente lite \\u2014 sufficiency of evidence\\nEvidence that the income of the father was $888.65 per month and that he owned 24 acres of land, and that the expenses of his 34 year old son, who was mentally and physically disabled, consisted of vocational rehabilitation at $10 a week, psychiatric treatment at $60 a month, dental treatment at $5 a month, transportation at $25 a month and cost of an attendant at $120 a month, is held to support an award pendente lite of $200 per month for the support of the child.\\n12. Divorce and Alimony \\u00a7 18\\u2014 counsel fees pendente lite \\u2014 sufficiency of findings\\nIn determining an award of counsel fees pendente lite for the wife, trial court\\u2019s finding of fact that the wife\\u2019s monthly normal expenses are approximately equal to her income is held supported by evidence that the wife\\u2019s monthly income is $1,333.34 and that her monthly expenses amounted to at least $1,263.03.\\n13. Divorce and Alimony \\u00a7 18\\u2014 counsel fees pendente lite \\u2014 reasonableness of award\\nAlthough wife\\u2019s yearly income amounted to $16,000, an award to the wife of counsel fees pendente Me in the sum of $1500 is held supported by evidence that (1) the wife\\u2019s normal monthly expenses are approximately equal to her monthly income- \\u2014 such expenses resulting in large part from the care of a mentally and physically disabled son\\u2014 (2) exten sive preparations for the hearing were necessitated by the son\\u2019s condition, and (3) counsel has represented the wife throughout all the proceedings,, including a trial which ended in mistrial.\\nAppeal by plaintiff from Bansdell, J., February 1969 Civil Session, WaKE County District Court.\\nJohn R. Speck (plaintiff) commenced this civil action to obtain an absolute divorce from Miriam N. Partridge Speck (defendant) on 10 January 1967. An amended complaint was filed on 16 March 1967 in which it was alleged that the plaintiff was a resident of the' City of Raleigh, Wake County; the defendant was a resident of Haymarket, Prince William County, Virginia; they had been married on 25 August 1941 in Baltimore, Maryland; on 22 March 1963 they separated and they remained continuously separate and apart from each other \\u201cfor more than one year next preceding the institution of this action\\u201d; they had one emancipated child, David New-combe Speck (David), who was 34 years of age, and two emancipated adopted children.\\nAn amended answer was filed by the defendant on 8 June 1967 in which it was admitted that the plaintiff and defendant were married and that they had \\u201clived separate and apart since\\u201d 22 March 1963. It was alleged that the marriage ceremony had been performed in Charleston, South Carolina; \\u201cthis separation was caused by plaintiff\\u2019s unlawful and wilful abandonment of her\\u201d; and David was not emancipated. By way of a further answer and defense and a cross-action, it was alleged that they were first married on 15 September 1931 in Baltimore, Maryland; \\u201ca decree of divorce absolute was entered in behalf of this defendant by the Baltimore City Court of Baltimore, Maryland\\u201d on 24 September 1935; the decree1 awarded custody of David to the defendant; they \\u201cwere again married on 25 August, 1941, in the State of South Carolina\\u201d; the defendant was \\u201ca dutiful and loving wife at all times\\u201d; the \\u201cplaintiff was always a distant and inapproachable husband\\u201d; he was irritable and difficult to live with; he \\u201cwas guilty of acts of cruelty and misconduct which made defendant\\u2019s life burdensome and intolerable\\u201d' he \\u201cfailed and steadfastly refused to provide adequately or even decently for his family\\u201d; he \\u201chad an . . . illogical dread and fear of death, disease and illness\\u201d, and this was manifested in his relationship with David, who was suffering from permanent brain damage and poor physical health, and in his relationship with the defendant after she underwent surgery for the removal of a \\u201cmalignant cancer\\u201d; she was forced to seek employment in an effort \\u201cto-alleviate and improve the economic and financial position of her -self and her children\\u201d; she accepted employment in Haymarket, Prince William County, Virginia, \\u201cwith the encouragement and acquiescence of plaintiff\\u201d who continued to live at their Springfield, Virginia, home: he later told her that she should discontinue visiting their home and should remain at her place of employment; the plaintiff sold their home in Springfield, Virginia, and made no attempt to find a new home in Haymarket, as he had previously agreed to do; he then abandoned the defendant and his family \\u201cand went secretly to the State of Maryland to live\\u201d; the \\u201cacts of cruelty, misconduct and abandonment by the plaintiff were done without any provocation whatever on the part of the defendant\\u201d; David is physically and mentally disabled and he \\u201cis absolutely dependent upon the defendant, ... in whose care and custody he was left, for sustenance, care and support\\u201d; the plaintiff \\u201chas steadfastly refused and failed to make any contribution whatever toward the support of his wife and son David since the parties separated in 1963\\u201d; and he has threatened to cancel a policy of health, medical, surgical and hospital insurance which extends coverage to the defendant and David. She expressly pled the \\u201cabandonment by plaintiff in bar of plaintiff's right to the relief prayed for in the [amended] complaint\\u201d. She sought reasonable support, maintenance and subsistence for herself and David and reasonable counsel fees pendente lite. She further sought an order pendente lite restraining the plaintiff from cancelling the insurance policy, supra. The answer was to be treated as an affidavit in support of her prayer and motion for relief pendente lite. Upon final trial, she sought a judgment for reasonable support, maintenance, subsistence and counsel fees, a permanent restraining order against cancellation of the insurance policy, and custody of David.\\nA reply to the further answer and defense and the cross-action was filed by the plaintiff on 11 July 1967, in which he alleged that \\u25a0\\u201cthe separation was brought about by the abandonment of the plaintiff by the defendant\\u201d; \\u201cthe marriage was not a happy one\\u201d because \\u201cthe defendant was more interested in her career as a psychologist than being a wife and mother\\u201d and because she was domineering; he \\u201cremained constantly in debt in an attempt to supply the needs of his family and . . . applied all of his earnings to the support and maintenance\\u201d of his family; \\u201cthe defendant received half of the gross sale price [of their home] less the commission therefrom which she converted to her own use\\u201d; \\u201cthe defendant had refused to permit the plaintiff to have any control over [David]; that the defendant has humored said child to such an extent that he has never been required to obey anyone or to perform any task or work and that if he is not capable of supporting himself, it is a result of the conduct of the defendant toward said son and not due to his mental and physical condition\\u201d; on the contrary, \\u201cDavid ... is able and capable to work and earn sufficient sums to meet his living expenses if required to do so\\u201d; since \\u201cno guardian has been appointed for said child nor has said child been adjudicated incompetent\\u201d, \\u201cthe proper forum relating to David ... is a guardianship proceeding, adjudication and ancillary procedure for support\\u201d; the defendant \\u201chas been earning in excess of $20,000.00 per year\\u201d and is not \\u201cin any dire financial need\\u201d.\\nIn his reply the plaintiff denied that the defendant was a loving and dutiful wife; the plaintiff was guilty of any misconduct or cruelty or had any dreads or phobia which \\u201cmade the defendant\\u2019s life burdensome or intolerable\\u201d; \\u201che forced the defendant to seek outside employment\\u201d or gave her any encouragement to seek such employment; he agreed to find a new home in Haymarket after the house in Springfield was sold; he moved from Springfield to Maryland in secrecy; David was permanently disabled; or the plaintiff threatened to cancel any insurance policy.\\nA hearing was held and both parties testified. Judge Ransdell then entered an order under date of 17 February 1969. It was found as a fact that the plaintiff and defendant were married on 25 August 1941 in Baltimore, Maryland; \\u201cthey have not lived together as husband and wife for at least six . . . years prior to the date of this hearing\\u201d; David is \\u201cso handicapped both mentally and physically as to be incapable of earning his livelihood; that he is in such condition mentally and physically as to require constant supervision, care, attendance and attention and is totally dependent upon the defendant\\u201d; David \\u201chas continuously been in the custody of the defendant\\u201d, who \\u201cis a fit and proper person\\u201d; \\u201cit is in the best interest of . . . David . . . that he be placed in the custody of the defendant\\u201d; and the defendant\\u2019s \\u201cnormal expenses are approximately equal to her income\\u201d. It was further found as a fact that the plaintiff instituted this civil action for divorce absolute and \\u201c[t]hat the matter has been placed on the trial calendar numerous times, finally being tried at the January 1969 Term of Wake County District Court, resulting in a mis-trial\\u201d. It was thereupon concluded as a matter of law that David is incompetent and unemancipated; it is in his best interest to be placed in the custody of the defendant; \\u201cthe defendant is entitled to receive from plaintiff support for said David . . . and counsel fees, pendente lite\\u201d; the \\u201cplaintiff should be restrained, pendente lite, from canceling or otherwise voluntarily allowing to lapse\\u201d the insurance policy, sufra. It was then ordered that the defendant was to have custody of David; the plain tiff was to pay to the defendant 'pendente lite $200.00 per month for the use and benefit of David; the plaintiff was restrained pendente lite from cancelling or otherwise voluntarily allowing to lapse the insurance policy, supra; the plaintiff was to pay $1,500.00 for counsel fees incurred by the defendant.\\nTo the signing and entry of this order, the plaintiff excepted and appealed to this Court.\\nVaughan S. Winbome for plaintiff appellant.\\nJoyner, Moore & Howison by Henry S. Manning, Jr., for defendant appellee.\", \"word_count\": \"5689\", \"char_count\": \"34241\", \"text\": \"Campbell, J.\\nThe plaintiff's first contention is that the trial judge erred in entering an order as to the custody and support of David. It is argued that the trial judge lacked jurisdiction to enter such an order because David was a resident of Virginia; he was not a minor; he had not been adjudged incompetent; and the defendant had not been appointed his custodian or guardian.\\nSince this civil action was commenced on 10 January 1967, G.S. 50-13 applies, even though it was repealed and replaced by G.S. 50-13.1 through 50-13.8, which became effective from and after 1 October 1967. Unlike Chapter 1152 of the 1967 Session Laws, there is no provision in Chapter 1153 pertaining to pending litigation. However, there is nothing to indicate a legislative intent to apply the new statutes to pending litigation.\\n\\\"The General Assembly has the power to enact retroactive laws provided that they do not impair the obligation of contracts or disturb vested rights. There is no vested right in procedure, and therefore statutes affecting procedural matters solely may be given retroactive effect when the statutes express the legislative intent to make them retroactive. . . .\\nOrdinarily, a statute will be given prospective effect only, and will not be construed to have retroactive effect unless such intent is clearly expressed or arises by necessary implication from its terms.\\\" 7 Strong, N.C. Index 2d, Statutes, \\u00a7 8, p. 80.\\n\\\"Statutes ought not to act retrospectively and will not be so construed unless their terms require it. . A plain expression of legislative intent, that it shall have retroactive effect, is necessary. . . .\\n. . . 'There is always a presumption that statutes are intended to operate prospectively only, and words ought not to have a retrospective operation unless they are so clear, strong and imperative that no other meaning can be annexed to them, or unless the intention of the Legislature cannot be otherwise satisfied. . . \\\" Comrs. v. Blue, 190 N.C. 638, 130 S.E. 743.\\n\\\". . . The rights of the parties [under the cross-action] are governed by G.S. 50-16, since this litigation began prior to the repeal of that statute by the Session Laws of 1967, chapter 1152. The 1967 Act provides expressly that it shall not apply to pending litigation.\\\" Schloss v. Schloss, 273 N.C. 266, 160 S.E. 2d 5.\\nPrior to the 1967 legislative changes, the Supreme Court had held that it was not necessary for a minor child to be in the jurisdiction in order to award custody and payment of \\\"an allowance to the mother for the child's support\\\". Romano v. Romano, 266 N.C. 551, 146 S.E. 2d 821. This could be done if both the husband and wife were before the trial \\\"court and subject to its in personam judgments\\\". Romano v. Romano, supra.\\n\\\"The rationale of the rule seems to be that when both parties to a marriage are before the court in a divorce proceeding, the court may adjudicate their respective rights, duties, and obligations involved in the custody of their children, even though the children are not actually before the court. The court enforces its decrees by dealing with the offending parent since, because of its absence, the court cannot deal 'with the person of the infant.' \\\" Romano v. Romano, supra.\\nThe fact that a child has attained majority does not necessitate a contrary holding where the child is mentally and physically disabled.\\n\\\"Ordinarily the law presumes that when a child reaches twenty-one years of age he will be capable of maintaining himself, and in such case the obligation of the father to provide support terminates. But in North Carolina and a number of other states it has been held that a father is under a legal obligation to continue to provide necessary support to a child who prior to and after reaching the age of twenty-one years is and continues to be insolvent, unmarried, and incapable, mentally or physically, of earning a livelihood. The Supreme Court of North Carolina, in so holding in Wells v. Wells, [227 N.C. 614, 44 S.E. 2d 31], created an exception to the general rule and reached a result commensurate with sound public policy and progressive social principles.\\\" 3 Lee, North Carolina Family Law, \\u00a7 229, p. 54, at p. 60.\\n\\\"[O]rdinarily the law presumes that when a child reaches the age of twenty-one years he will be capable of maintaining himself, and in such case the obligation of the father to provide support terminates. But where this presumption is rebutted by the fact of mental or physical incapacity, it no longer obtains, and the obligation of the father continues.\\\" Wells v. Wells, supra.\\nThis rule was codified in 1967 by the General Assembly in G.S. 50-13.8. 3 Lee, North Carolina Family Law, \\u00a7 229, p. 30 of 1968 Cumulative Supplement.\\nNeither the record nor the decision of the Supreme Court in Wells v. Wells, supra, disclose that the child there involved had been adjudicated an incompetent or that a custodian or guardian had been appointed. The holding was not preconditioned upon such an adjudication. In the instant case, Judge Copeland entered an order under date of 13 March 1968 for a psychiatric examination of David. Judge Hobgood entered an order under date of 1 May 1968 appointing as psychiatrists to conduct said examination the staff of the Psychiatric Department of the North Carolina Memorial Hospital in Chapel Hill. Judge Ransdell entered an order under date of 17 February 1969 in which he made the following finding of fact:\\n. . David . . . has continuously been and remains unmarried, insolvent, and so handicapped both mentally and physically as to be incapable of earning his livelihood; that he is in such condition mentally and physically as to require constant supervision, care, attendance and attention and is totally dependent upon the defendant.\\\"\\nHe thereupon concluded as a matter of law that:\\n. . David . is not competent, by reason of mental and physical disability to be self-supporting or to earn his'own livelihood and that said David . is an incompetent and unemancipated child . . .; that it is in the best interest of the said David . . . that he be placed in the custody and care of his mother, the defendant. . . .\\\"\\nAt the time Judge Ransdell made the finding of fact and conclusion of law, he had before him the report from the Psychiatric Department and five medical affidavits which had been filed with the district court and duly introduced into evidence at the hearing.\\nThis contention is without merit.\\nThe plaintiff's second contention is that the trial judge erred in overruling his demurrer to the defendant's cross-action. It was argued that the defendant failed to state facts sufficient to state a cause of action for abandonment.\\n\\\". . . To state a cause of action under G.S. 50-16 it is necessary to allege (1) the marriage, (2) the separation of the husband from the wife and his failure to provide the wife and children of the marriage reasonable subsistence, i.e., abandonment, or some conduct on the part of the husband constituting cause for divorce, either absolute or from bed and board, and (3) want of provocation on the part of the wife. . . .\\\" Murphy v. Murphy, 261 N.C. 95, 134 S.E. 2d 148. See 1 Lee, North Carolina Family Law, \\u00a7 80, p. 302.\\n\\\"Denny, J., said for the Court in Blanchard v. Blanchard, 226 N.C. 152, 36 S.E. 2d 919: Tt is unnecessary for a husband to depart from his home and leave his wife in order to abandon her. By cruel treatment or failure to provide for her support, he may compel her to leave him. This, under our decisions, would constitute abandonment by the husband.' \\\" Bailey v. Bailey, 243 N.C. 412, 90 S.E. 2d 696.\\nThe cross-action stated a cause of action under G.S. 50-16. This contention is without merit.\\nThe plaintiff's third, fourth and fifth contentions are that there was not sufficient evidence to support Findings of Fact Numbers Three and Four. The trial judge complied with the following general rule stated in Ipock v. Ipock, 233 N.C. 387, 64 S.E. 2d 283, (although the facts are distinguishable):\\n\\\"Consequently, in passing on such motion the judge is expected to look into the merits of the action and determine in his sound legal discretion, after considering the allegations of the complaint and the evidence of the respective parties, whether or not the movant is entitled to the relief sought. . . .\\\"\\nWe have reviewed the record and find no merit in these contentions.\\nWe have likewise reviewed the record in respect to the sixth contention and find no merit. The question of jurisdiction has been dealt with supra and further discussion is unnecessary.\\nThe plaintiff's seventh contention is that the trial judge erred in awarding counsel fees pendente lite to the defendant, because there was no testimony taken to determine whether he was a wrong doer and because there was no finding of fact in the order under date of 17 February 1969 that he was a wrongdoer. It was unnecessary for the trial judge to make findings of fact in this hearing on the cross-action under G.S. 50-16. It is presumed \\\"that the court, for the purposes of the hearing, found that [the plaintiff] had wrongfully abandoned the [defendant], as alleged in the\\\" cross-action. Southard v. Southard, 208 N.C. 392, 180 S.E. 665. Judge Ransdell made findings of fact, some of which were set out in his order. A finding of fact that the plaintiff was a wrongdoer was not set out. This, however, did not preclude the presumption that the plaintiff was found to have wrongfully abandoned the defendant.\\nThis contention is without merit.\\nThe plaintiff's eighth contention is that the trial judge erred in its conclusion of law because it was not supported by the evidence and because the trial judge lacked express authority to determine the questions of incompetency and visitation rights. Suffice it to say that, since the husband and wife were before the court, visitation rights could be established, regardless of the child's residence. This contention is without merit.\\nThe plaintiff's ninth contention is that, since the trial judge had \\\"no authority over the conduct, rights or privileges of David . . ., a citizen and resident of the State of Virginia\\\", it was error to enter the following order:\\n\\\"[T]hat the plaintiff (defendant?) be and she is hereby given custody and control of David . . . and that the plaintiff may have the said David . . . visit with him at reasonable times; and that the plaintiff also shall have the right to visit said David . at his home at reasonable times and under reasonable circumstances.\\\"\\nBased upon the reasoning of Romano v. Romano, supra, we hold that this contention is without merit.\\nThe plaintiff's tenth contention is that the trial judge erred in entering the following order:\\n\\\"[T]hat the plaintiff pay to the defendant pendente lite, the sum of Two Hundred and no/100 Dollars ($200.00) per month commencing the 15th day of February, 1969, and on or before the 15th day of each month thereafter for the use and benefit of said David . . . incompetent and unemancipated son of the parties.\\\"\\nIt is argued that \\\" [t] his order is impossible of being carried out since it was rendered on the 17th day of February while $200.00 is required to be paid out on the 15th day of that month\\\". Under the express terms of the order, the plaintiff was required to pay to the defendant $200.00 for the month of February. Although the requirement relates back to the 15th of February, the plaintiff could have complied with the order by making the payment at anytime during the month of February. Unlike the provision for subsequent months, the payment for February did not have to be made \\\"on or before the 15th day\\\".\\nIt is further argued that the justified expenses for the use and benefit of David is $80.00. \\\"[T]he amount the [plaintiff] is required to pay for the support of his child and for reasonable subsistence of the [defendant] pendente lite and for compensation to her counsel, is determinable by the [trial] judge in the exercise of his sound discretion. And in the absence of an abuse of discretion, his decision is not reviewable.\\\" Rock v. Rock, 260 N.C. 223, 132 S.E. 2d 342. No abuse of discretion has been made to appear.\\nThis contention is without merit.\\nThe plaintiff's eleventh contention is that the trial judge erred in entering the order under date of 17 February 1969 \\\"for that it is contra to the law, is not supported by substantial and competent evidence and fails to find sufficient and adequate findings of fact and conclusion to answer the issues raised by the pleadings.\\\" It is argued that the findings of fact \\\"were attempted but failed to establish the needs of the son and failed to determine the ability of the father. The expenses of the father are not considered, much less established.\\\" In respect to the plaintiff's ability to pay, the testimony revealed that his income was $888.65 per month from his civil service annuity and that he owned a twenty-acre tract and a four-acre tract of land. In respect to the needs of David, the testimony of the defendant revealed that the part-time vocational rehabilitation cost $10.00 per week, the psychiatric treatment cost $60.00 for two sessions a month, the dental treatment cost on the average of $5.00 per month, the transportation to and from the vocational rehabilitation school and the psychiatric treatment cost on the average of $15,00 per month, and his clothing cost on the average of $25.00 per month. Mrs. Sooley was also paid $120.00 per month for staying with David. This testimony and the cross-action, which was treated as an affidavit in support of the prayer and motion for relief pendente lite, support the order.\\nThis contention is without merit.\\nThe plaintiff's twelfth contention is that the trial judge erred in making the following finding of fact:\\n\\\"That although defendant is gainfully employed, her normal expenses are approximately equal to her income, and she is therefore financially unable to pay a reasonable fee to her attorneys.\\\"\\nIt is argued that the finding of fact is contrary to the evidence. The defendant testified that the total of her household expenses, personal and those in connection with a trust for the benefit of David, was $1,317.51 per month. She further testified that her income was $1,333.34 per month.\\nThe defendant's testimony indicates that her gross income for 1969 will be $16,000.00, or $1,333.34 per month. Her federal and state taxes and social security are $313.66 per month. Her expenses per month in connection with David include $40.00 for part-time vocational rehabilitation, $60.00 for psychiatric treatment, $5.00 for dental treatment, $15.00 for transportation costs, $25.00 for clothing, and $120.00 for an attendant. These total $265.00 per month. In addition, her expenses per month include $150.00 for food, $15.00 for telephone, $50.00 for personal expenses such as lunches, cleaning and clothing, $37.50 for dental work, $7.00 for Medicare, $10.00 for car insurance, $30.00 for transportation and car maintenance, $10.00 for hospitalization insurance policy, $13.00 for accidental death policy, and _ $17.00 for other insurance. These total $339.50. Her expenses per month in connection with a trust created for the benefit of David include premiums of $35.50, $18.99, $269.71, $16.67, and $4.00. These total $344.87. Therefore, her expenses for each month, according to these figures, equal at least $1,263.03. The difference between her monthly income of $1,333.34 and her monthly expenses of $1,263.03 is $70.31.\\nIn his order, the trial judge found that \\\"her normal expenses are approximately equal to her income.\\\" He did not find that they were exactly equal. This contention is without merit.\\nThe thirteenth contention is likewise without merit and further discussion of the point raised is unnecessary.\\nThe plaintiff's fourteenth contention is that the trial judge erred in entering the following order:\\n. . that the plaintiff pay to Joyner, Moore and Howison, counsel for the defendant, the sum of One Thousand Five Hundred Dollars ($1,500.00) to apply upon attorneys' fees incurred by defendant to the date of this order, such sum to be paid on or before the 15th day of February, 1969, or at such other time and under such other terms and conditions as may be satisfactory to said counsel for defendant.\\\"\\nSince the order was dated 17 February 1969, the plaintiff could not have complied with the provision for payment \\\"on or before the 15th day of February\\\". However, he could have fully complied with the alternative provision for payment. In so doing, it is not to be presumed that counsel for defendant would have exercised the power to determine the time and the terms and conditions of payment to the detriment and prejudice of the plaintiff.\\nIt is argued that \\\"[t]he evidence presented does not justify ordering counsel fees for the defendant in that . . . her income and financial reserves are amply sufficient to pay her own fees\\\". In view of her monthly expenses, the defendant was not able to pay a reasonable fee to her attorneys.\\nIt is further argued that \\\"[t]he evidence presented does not justify ordering counsel fees for the defendant in that . . . the plaintiff has not been held to have abandoned her\\\". However, there is a presumption that the trial judge found that the plaintiff abandoned the defendant. Southard v. Southard, supra.\\nIn respect to the amount of counsel fees pendente lite, the plaintiff argued that $1,500.00 was excessively liberal. In support of his position he cited Schloss v. Schloss, supra. The Supreme Court there stated:\\n\\\"[L]ess than two months elapsed between the separation and the entry of the order. The order directed the husband to pay $2,500 to the wife's counsel 'as a fee for services rendered to date.' (Emphasis added.) There is nothing to indicate that the wife consulted her counsel prior to the husband's departure from the home. No evidence was introduced at the hearing by the plaintiff except her verified complaint, a short affidavit by her with reference to the effect of the full allowance prayed for upon the husband's income tax liability, and a copy of the joint income tax i'eturn. The entire evidence for the defendant consisted of his counter affidavit and three very short affidavits of other persons. Nothing in the record indicates that extensive preparation for the hearing was necessary or was made.\\\"\\nIn the instant case, the record indicates that extensive preparation for the hearing was necessary and was made. Much of the preparation was necessitated by the mental and physical condition of David. In his order, Judge Ransdell made the following finding of fact:\\n\\\"That the matter has been placed on the trial calendar numerous times, finally being tried at the January 1969 Term of Wake County District Court, resulting in a mistrial, and that counsel for defendant has represented her throughout these proceedings.\\\"\\nThe Supreme Court further stated in Schloss v. Schloss, supra:\\n\\\"The [wife] alleges in her complaint that she is the\\\" owner of a $48,000 residence which is free of encumbrances, she owns a new automobile and has over $13,000 in bank accounts and other investments. When to these resources there is added by the court's order an income from her husband at the rate of $18,000 per year, it cannot be said, in the absence of any findings of fact, that she is financially unable to pay a reasonable fee to her attorney and so is unable to employ counsel to represent her in her litigation with her husband.\\\"\\nIn the instant case, the monthly expenses would prevent the defendant from meeting the plaintiff, as litigant, on substantially even terms without an allowance of counsel fees pendente lite. Judge Ransdell found as a fact that the defendant's normal expenses were approximately equal to her income.\\nThis contention is without merit.\\nThe fifteenth contention is likewise without merit and further discussion of the points raised is unnecessary.\\nAffirmed.\\nBeocK and Moeeis, JJ., concur.\"}" \ No newline at end of file diff --git a/nc/8549900.json b/nc/8549900.json new file mode 100644 index 0000000000000000000000000000000000000000..4e8c7c1d5284651efcdc1b265ba936bbb793ba42 --- /dev/null +++ b/nc/8549900.json @@ -0,0 +1 @@ +"{\"id\": \"8549900\", \"name\": \"GREGORY CHARLES SLIZEWSKI, Employee, Plaintiff v. INTERNATIONAL SEAFOOD, INC., Employer and THE TRAVELERS INSURANCE COMPANY, Carrier, Defendants\", \"name_abbreviation\": \"Slizewski v. International Seafood, Inc.\", \"decision_date\": \"1980-04-15\", \"docket_number\": \"No. 7910IC822\", \"first_page\": \"228\", \"last_page\": \"235\", \"citations\": \"46 N.C. App. 228\", \"volume\": \"46\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T01:13:49.759499+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges Clark and Erwin concur.\", \"parties\": \"GREGORY CHARLES SLIZEWSKI, Employee, Plaintiff v. INTERNATIONAL SEAFOOD, INC., Employer and THE TRAVELERS INSURANCE COMPANY, Carrier, Defendants\", \"head_matter\": \"GREGORY CHARLES SLIZEWSKI, Employee, Plaintiff v. INTERNATIONAL SEAFOOD, INC., Employer and THE TRAVELERS INSURANCE COMPANY, Carrier, Defendants\\nNo. 7910IC822\\n(Filed 15 April 1980)\\n1. Master and Servant \\u00a7 55.3\\u2014 workers\\u2019 compensation \\u2014 cause of fall unknown \\u2014 injury by accident arising out of employment\\nThe evidence, or lack thereof, supported a finding that the cause of plaintiff\\u2019s fall to the floor of the restaurant of which he was assistant manager was unknown, and the Industrial Commission could properly find that plaintiff was injured by accident arising out of and in the course of his employment where there was no finding that any force or condition independent of the employment caused the fall, and the evidence showed that plaintiff was engaged in the duties of his employment at the time of the fall and that the only active force involved was plaintiff\\u2019s exertions in the performance of his duties.\\n2. Master and Servant \\u00a7 69.1\\u2014 workers\\u2019 compensation \\u2014 hematoma suffered in fall \\u2014 cause of hemiplegia and visual difficulties\\nThe evidence was sufficient to support the Industrial Commission\\u2019s finding that a hematoma suffered by plaintiff employee in a fall caused brain damage rendering plaintiff a partial hemiplegic and reducing his visual capabilities where it tended to show that, prior to the fall, plaintiff was a healthy young man with no history of seizures, paralysis or visual disability; the day after the fall plaintiff was completely unconscious, had some movement on his right side but had no movement of his left arm and leg and had a complete left hemiplegia; a surgeon performed a craniectomy removing a hematoma from the right side of plaintiff\\u2019s brain; the next thing plaintiff remembered after the fall was waking up in the hospital and being paralyzed on his left side and being unable to speak or see very well; and at the time of the hearing plaintiff had seizures under too much stress or excitement, was still paralyzed in his left hand, partially paralyzed in his left leg and face and wore glasses.\\n3. Master and Servant \\u00a7 69.1\\u2014 workers\\u2019 compensation \\u2014 permanent disability\\nThe Industrial Commission could properly find that plaintiff suffered permanent brain damage and is permanently disabled by reason of that injury when the severe nature of plaintiff\\u2019s injury is considered with a surgeon\\u2019s testimony that it would be impossible to recover completely from a hematoma of the size which he removed from plaintiff\\u2019s brain but that how much recovery is possible is very difficult to estimate.\\nAPPEAL by defendants from Order of the North Carolina Industrial Commission entered 10 May 1979. Heard in the Court of Appeals 7 March 1980.\\nThe parties stipulated that they are bound by and subject to the provisions of the North Carolina Workmen\\u2019s Compensation Act; that defendant employer employed four or more employees on 25 January 1976; that an employer-employee relationship existed on 25 January 1976; that the carrier assuming the workmen\\u2019s compensation risk for defendant employer on 25 January 1976 was Travelers Insurance Company and that claimant\\u2019s average weekly wage was $237.77.\\nAfter hearings before Deputy Commissioner Ben E. Roney, Jr., on 7 April and 30 September 1977 and before Deputy Commissioner John Charles Rush on 15 February 1978, Deputy Commissioner Roney found the following pertinent facts:\\n1. Claimant fell at work on 25 January 1976. During the fall he suffered a linear fracture in the right posterior parietal region of the skull. The right hemisphere of his brain commenced to hemorrhage and a huge hematoma was evacuated by Dr. Timmons following hospitalization at Pitt County Memorial Hospital on 26 January 1976. He was admitted to the hospital on this occasion completely comatose. The massive hematoma caused permanent brain damage that has rendered claimant a left-sided partial hemiplegic. The pressure inside the skull occasioned by the massive hematoma caused permanent damage to claimant\\u2019s eyes that has significantly caused a reduction in his visual capabilities.\\n2. Claimant attempted to return to work for defendant employer during April 1976. He worked for three days but was unable to handle the physical requirements of the job.\\n3. Claimant is totally and permanently disabled by reason of the injury that he suffered during the 25 January 1976 fall giving rise hereto.\\n4. The fall occurred in the service area between the kitchen and dining room. He fell forward with his arms across his chest, rotating counter-clockwise and landed on the right shoulder and right portion of his head. He commenced to fit following the fall.\\n5. Claimant was not an epileptic on the day of or any time prior to the fall giving rise hereto.\\n6. Claimant received surgery during October 1975 for carcinoma of the left leg. He received three intravenous chemotherapy treatments following surgery. The chemotherapy treatments were discontinued because they caused vomiting.\\n7. Claimant went to work as manager of defendant employer three days prior to 25 January 1976. He has experienced several seizures subsequent to the fall that usually occur during stress or exertion. He is currently taking Dilan-tin and Phenobarbital as measures designed to control seizure activity.\\n8. Claimant\\u2019s memory with respect to the events following the fall is not particularly good. His memory for the cause of the fall presumes a slip. He had, however, been observed just prior to the fall leaning with his left shoulder against the wall between the kitchen and dining area looking out into the dining area. He was next observed falling forward in the manner previously described. The manner in which claimant fell does not confirm the occurrence of a slip and fall.\\n9. The cause of the fall giving rise hereto is unknown. The evidence of record does not compel directly or by inference a conclusion that the fall was occasioned by an idiopathic condition inasmuch as claimant was not suffering from any known idiopathic condition on or prior to 25 January 1976.\\n10. Claimant was injured by accident arising out of and in the course of the employment.\\n11. The compensation rate herein for lifetime benefits is $146.00.\\nBased on the foregoing findings of fact, Deputy Commissioner Roney made the following conclusions of law:\\n1. Without regard to any inferences favoring either party, the evidence of record herein reveals an accident (fall) without a known cause that occurred in the course of the employment. The law under these circumstances presumes the \\u201carising out of\\u201d requirements. (Citations omitted.)\\n2. Claimant was injured by accident arising out of and in the course of the employment. NC GS 97-2(6).\\n3. Claimant is by reason of the injury by accident giving rise hereto a lifetime case and is entitled to compensation at $146.00 per week beginning 25 January 1976. NC GS 97-29.\\nOn appeal to the Full Commission, the Full Commission adopted as its own the Opinion and Award of Deputy Commissioner Roney. Defendants appealed.\\nFranklin B. Johnston for plaintiff appellee.\\nG. Collinson Smith for defendant appellants.\", \"word_count\": \"2810\", \"char_count\": \"17143\", \"text\": \"MARTIN (Robert M.), Judge.\\nDefendants assign as error that there was no competent evidence in the record to support Finding of Fact No. 9, that the cause of the fall was unknown, and Finding of Fact No. 10, that claimant was injured by an accident arising out of and in the course of his employment, and the conclusions of law based thereon. Defendants further argue that Finding of Fact No. 4 does not support the findings of fact or conclusions of law.\\nThe evidence in the case sub judice tends to show that plaintiff, the assistant manager at the Family Fish House Restaurant had completed his rounds on 25 January 1976, which included an inspection of the kitchen area where foods were being deep-fat fried. Plaintiff ended up where the witnesses usually fill glasses with drinks outside the kitchen doors. Plaintiff testified that when he walked out to the waitress area, he remembered leaning and falling and not being able to grab onto anything and after that he remembered nothing. David Louthen, a waiter at the Fish House, stated that he walked past the plaintiff who was leaning against a wall in the service area. Louthen then sat down at a table located about four feet from the service area where he was talking to a waitress and could not observe plaintiff for several minutes. The next time Louthen saw plaintiff, he observed the top portion of plaintiff's body falling in front of him with his hands clasped across his chest, plaintiff fell as a tree falls, direct ly forward and landed directly on his head. As soon as plaintiff fell he went into convulsions. Louthen also testified that plaintiff might have moved from his original position prior to the fall. Plaintiff's wife testified that when she received plaintiff's personal belongings at the hospital that his shoes were covered with \\\"greasy stuff.\\\"\\nIn regard to his physical condition prior to the accident, plaintiff testified that in 1975 he had a carcinoma of the left leg which was removed and following the surgical excision of the carcinoma he received chemotherapy but he had recovered completely from that and was not experiencing any medical problems in reference to that treatment. Several witnesses testified that prior to the accident, plaintiff was a healthy, active, sports minded young man. Dr. Timmons, who treated plaintiff for the hematoma from 26 January 1976 to 11 February 1977, stated that he did not observe any pre-existing medical difficulty which might cause a hematoma other than the fall.\\nDefendants do not except to the Commissioner's finding of fact that plaintiff's memory for the cause of the fall presumes a slip but that the manner in which claimant fell does not confirm the occurrence of a slip and fall. The evidence does not compel a finding that the cause of the fall was a slip nor does it reveal any other possible cause of the fall. There is no evidence that plaintiff was suffering from an idiopathic condition which caused either the fall or the hematoma. The evidence, or lack thereof, on the cause of the fall is sufficient to sustain the finding that the cause of the fall was unknown.\\nHaving determined that the cause of the fall was unknown, the courts have found that the fall was an accident \\\"arising out of\\\" the employment and sustained an award in Calhoun v. Kimbrell's Inc., 6 N.C. App. 386, 170 S.E. 2d 177 (1969) and the authorities cited therein. Quoting from Taylor v. Twin City Club, 260 N.C. 435, 132 S.E. 2d 865 (1963), the court in Calhoun stated:\\nIt has been suggested that this result in unexplained-fall cases relieves claimants of the burden of proving causation. We do not agree. The facts found by the Commission in the instant case permit the inference that the fall had its origin in the employment. There is no finding that any force or condition independent of the employment caused or contributed to the accident. The facts found indicate that, at the time of the accident, the employee was within his orbit of duty on the business premises of the employer, he was engaged in the duties of his employment or some activity incident thereto, he was exposed to the risks inherent in his work environment and related to his employment, and the only active force involved was the employee's exertions in the performance of his duties.\\nId. at 390, 170 S.E. 2d at 179-80. In the present case, as in Taylor and Calhoun, there is no finding that any force or condition independent of the employment caused the fall. The plaintiff, in completing his inspection of the area, was engaged in the duties of his employment and the only active force involved was plaintiffs exertions in the performance of his duties. In such a situation, our decisions, liberally interpreting the Workmen's Compensation Act, indulge the inference that the accident arises out of his employment, and when the Commission so finds, that finding is conclusive on appeal.\\nThe Commission's conclusion that \\\"[t]he law under these circumstances presumes the 'arising out of requirement\\\" is correct to the extent that a presumption, a term often loosely used, encompasses the concept of an inference. See Henderson County v. Osteen, 297 N.C. 113, 254 S.E. 2d 160 (1979).\\nDefendants further assign as error that Findings of Fact Nos. 1 and 3 are not supported by competent medical testimony in the record. Defendants contend that there is no evidence in the record that the hematoma caused permanent brain damage that has rendered plaintiff a partial hemiplegic as well as caused permanent damage to plaintiff's eyes and that claimant is totally and permanently disabled by reason of the injury. Defendants, by these assignments of error, apparently do not contend that the fall did not cause the hematoma. The causal relationship between the accident and the injury, the hematoma, is sufficiently established by expert medical testimony. Dr. Timmons testified that in his opinion there was a causal relationship between the fall and the hematoma which he removed from the right side of plaintiff's brain and that he did not observe any other preexisting medical difficulty which might cause said hematoma. In addition, Dr. Michael Weaver, a diagnostic radiologist, testified that plaintiff suffered a well defined linear non-depressive skull fracture and that he was of the opinion that the fall could have produced such a fracture and the resulting hematoma. Hence, the above assignments of error are limited to the causal relationship between the accident and the specific consequences of that injury, the partial hemiplegia and visual disability, and the permanency of those injuries.\\nIn Click v. Freight Carriers, 41 N.C. App. 458, 255 S.E. 2d 192 (1979) we discussed the appropriate circumstances under which an award may be made when medical evidence on the causal relationship between the injury and the accident is un-conclusive, indecisive, fragmentary or even non-existent. Larson's Workmen's Compensation Law, \\u00a7 79.51, 15-246 to 247 (1976). In Click we quoted with approval from Uris v. State Compensation Department, 247 Or. 420, 427 P. 2d 753 (1967).\\nIn the compensation cases holding medical testimony unnecessary to make a prima facie case of causation, the distinguishing features are an uncomplicated situation, the immediate appearance of symptoms, the prompt reporting of the occurrence by the workman to his supervisor and consultation with a physician, and the fact that the plaintiff was theretofore in good health and free from any disability of the kind involved. A further relevant factor is the absence of expert testimony that the alleged precipitating event could not have been the cause of the injury. . . . (Citation omitted.)\\nId at 462, 255 S.E. 2d at 195.\\nWe think that the distinguishing features are present in the case at bar. Prior to the fall, plaintiff was a healthy young man with no history of seizures, paralysis or visual disability. As soon as plaintiff fell landing directly on his head, he went into convulsions which continued after he was admitted to the hospital. On 26 January 1976, the day after the fall, Dr. Timmons testified that plaintiff was completely unconscious, had some movement on his right side but had no movement of his left arm and leg and had a complete left hemiplegia. Dr. Timmons performed a craniectomy removing a hematoma from the right side of plaintiff's brain. The next thing plaintiff remembered after the fall was waking up in the hospital and being paralyzed on his left side and being unable to speak or see very well. At the time of the hearing, plaintiff had seizures under too much stress or excitement, was still paralyzed in his left hand, partially paralyzed in his left leg and face and wore glasses. Under these circumstances, the fact that the accident caused the injuries can reasonably be inferred. We find, therefore, that the evidence was sufficient to support the Commission's finding of fact that the hematoma caused brain damage rendering plaintiff a partial hemiplegic and reducing his visual capabilities.\\nThe remaining question is whether plaintiff has presented sufficient evidence that he has suffered permanent brain damage and is permanently disabled by reason of that injury. In Gamble v. Borden, Inc., 45 N.C. App. 506, 263 S.E. 2d 280 (1980) a permanent total case was defined as one in which an employee sustains an injury which results in his inability to function in any work related capacity at any time in the future. Dr. Timmons testified that it would be impossible to recover completely from a hematoma of the size which he removed from plaintiff's brain but that how much recovery was possible was very difficult to estimate. While this medical testimony leaves open the possibility of some improvement in plaintiff's condition, given the severe nature of plaintiff's injury and the impossibility of complete recovery, there is sufficient evidence from which the Commission could find that plaintiff suffered permanent brain injury and is permanently unable to function in a work related capacity.\\nAffirmed.\\nJudges Clark and Erwin concur.\"}" \ No newline at end of file diff --git a/nc/8550005.json b/nc/8550005.json new file mode 100644 index 0000000000000000000000000000000000000000..78e8c11e227ebddc344dc43c3bb50ef73ee5d0a1 --- /dev/null +++ b/nc/8550005.json @@ -0,0 +1 @@ +"{\"id\": \"8550005\", \"name\": \"FRANCES LOUISE TOOTHE v. CITY OF WILMINGTON, NORTH CAROLINA, and THE THALIAN ASSOCIATION, INC.\", \"name_abbreviation\": \"Toothe v. City of Wilmington\", \"decision_date\": \"1970-05-27\", \"docket_number\": \"No. 705SC62\", \"first_page\": \"171\", \"last_page\": \"178\", \"citations\": \"8 N.C. App. 171\", \"volume\": \"8\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T18:23:18.659622+00:00\", \"provenance\": \"CAP\", \"judges\": \"PaekeR and Vaughn, JJ., concur.\", \"parties\": \"FRANCES LOUISE TOOTHE v. CITY OF WILMINGTON, NORTH CAROLINA, and THE THALIAN ASSOCIATION, INC.\", \"head_matter\": \"FRANCES LOUISE TOOTHE v. CITY OF WILMINGTON, NORTH CAROLINA, and THE THALIAN ASSOCIATION, INC.\\nNo. 705SC62\\n(Filed 27 May 1970)\\n1. Tidal \\u00a7 21\\u2014 nonsuit \\u2014 consideration of evidence\\nOn a motion for judgment of nonsuit the evidence on behalf of the plaintiff must be taken as true and considered in the light most favorable to plaintiff, and all reasonable inferences therefrom which are favorable to plaintiff must be drawn.\\n2. Games and Exhibitions \\u00a7 2\\u2014 liability of proprietor to patrons\\nOne who, expressly or by implication, invites others to come upon his premises to view an event being carried on therein has the duty to be reasonably sure that he is not inviting them into danger and must exercise reasonable care for their safety.\\n3. Games and Exhibitions \\u00a7 2\\u2014 liability of arena proprietor \\u2014 standard of reasonable care\\nSince what constitutes reasonable care varies with the circumstances, the vigilance required of the owner of the arena in discovering a peril to the invitee and the precautions which he must take to guard against injuries therefrom will vary with the nature of the exhibition, the portion of the building involved, the probability of injury, and the degree of injury reasonably foreseeable.\\n4. Games and Exhibitions \\u00a7 2\\u2014 duty of arena proprietor \\u2014 safety of premises\\nThe law does not require the owner of an arena to take steps for the safety of his invitees such as will unreasonably impair the attractiveness of his establishment for its customary patrons.\\n5. Games and Exhibitions \\u00a7 2\\u2014 duty of patrons\\nThose who attend concerts and similar amusements or exhibitions must anticipate that they will be conducted in the usual manner and surroundings; the duty of the owner is to use reasonable care under the circumstances.\\n(8. Games and Exhibitions \\u00a7 2\\u2014 patron\\u2019s fall into orchestra pit \\u2014 liability of sublessor to plaintiff \\u2014 sufficiency of evidence\\nIn an action against the sublessor of a theater by a patron who was injured when she fell into the orchestra pit, the patron\\u2019s fall occurring after the completion of a concert given by the sublessee, a church college \\u25a0choir, plaintiff\\u2019s evidence is held insufficient to establish the breach of any \\u25a0duty owed to the plaintiff by the sublessor with regard to the sufficiency of the lighting or the construction of the pit, where the evidence was to ;the effeet (1) that the sublessor had relinquished control and operation of the premises to the sublessee for the concert, (2) that the choir leader, :and not the sublessor, had given directions for the lighting and' the cur-iabas, and (3) that the sublessor was not responsible for the construction of the pit and could not alter it. in any event, without approval of the theater -owner.\\nAppeal by plaintiff from Cohoon, J., 18 August 1969 Civil 'Session, New Hanover Superior Court.\\nThe plaintiff instituted this action for personal injuries received when she fell in a theater owned by the City of Wilmington and located in a wing of the City Hall. The City leased the theater premises to the co-defendant, The Thalian Association, Inc., (Thalian)\\u2019. At the close of the plaintiff\\u2019s evidence, a judgment of nonsuit was entered as to both defendants. The plaintiff appealed from that portion of the judgment granting a nonsuit to the defendant Thalian. No appeal was taken as to the City.\\nThe evidence discloses the following factual situation.\\nThe lease from the .City of Wilmington to Thalian provided .that the City leased the hall to Thalian \\u201cincluding the dressing rooms, stage, hall, orchestra pit, balconies, lounges, ticket offices, portico- and entries . . . .\\u201d The lease further provided that Th\\u00e1lian would maintain the premises and make repairs \\u201cas may be required improper maintenances [sic] and fire prevention, provided, however, \\u25a0that all such improvements, betterments, interior alterations and \\u00e9xpenditures of a nature to change the architectural character and purposes of the demised premises to be made by the lessee are first to be approved as to the nature and kind thereof by [the City].\\u201d\\u201cThe lessee, its successors and assigns, are granted the right and privilege to sublet the demised premises for public gatherings, conferences, public entertainment and assembly; and the lessee agrees-that it, and its successors and assigns, will make the said demised premises available from time to time for such public entertainment-, gatherings and public conferences, and at all reasonable times when the demised premises are not actually required for use by the lessee.\\u2019\\nPursuant to the terms of its lease, Thalian made the hall available for the Berkshire Christian College Choir for 24 March 1967. The Berkshire Christian College is the theological school located in Lennox, Massachusetts, of the Advent Christian Church, a church denomination with several churches in the Wilmington, North Carolina, area. The plaintiff\\u2019s husband, Frank Everett Toothe, is a clergyman and has served one of the churches of the denomination in the Wilmington area for some four years. Reverend Crocker of the Ogden Church was supposed to make the arrangements for the choir on behalf of the denomination, but Reverend Toothe did so for Reverend Crocker. Reverend Toothe paid $35.00 for the use of the hall on 24 March 1967. He testified,\\n\\u201c. . . I went in to see what it was like, I had never been in.\\n.That was some few days perhaps before March 24th. I looked over the facilities there and I noted the existence of the or- \\u2019 chestra pit. I saw the poles there with the ropes around it up to the center aisle. I went there prior to the commencement of the concert on the night of the 24th, some period of time ahead of the concert. ...\\u201d\\nThe evidence discloses that the $35.00 paid for the use of the hall represented $25.00 for cleaning up the hall before and after the performance, and electricity and heat; and $10.00 for a Mr. Foster, who is a licensed electrician. Thalian required that Mr. Foster, or somebody like him, be present to operate the lighting equipment which \\u201cis quite complicated and just a casual sublessee would not be able to work it . . . .\\u201d Thalian gave no instructions to Foster when- someone else was using the hall. In this regard Rev. Toothe testified that the choir leader from the Berkshire Choir \\u201cgave the directions as to what lights would be needed, and when the curtain would need to be opened and he told Mr. Foster this information.\\u201d\\nRev. Toothe further testified,\\n\\u201cI had seen that the orchestra pit was there and that it was depressed before the night of March 24th. . . . The purpose of having a depressed orchestra pit is to get the orchestra out of the vision of the audience.\\u201d\\nThe auditorium consisted of a raised stage, a center aisle with seats arranged in rows on each side of the center aisle and a balcony in the rear. There was a space of some 7 to 8 feet between the front row of orchestra seats downstairs and the edge of the depressed orchestra pit which was in front of the raised stage. The depth of the orchestra pit below the floor level was some 8 to 14 inches. Between the orchestra pit and the orchestra chairs, there were located metal \\u2022posts supporting a large rope. The -rope did not extend between the posts on each side of the center aisle so that it was possible to step from the center aisle into the orchestra pit. There have been no \\u25a0changes made in the interior arrangement of the hall since 1938, that \\u2022is, artistically in the arrangement of the aisle, the orchestra pit and \\u25a0the stage.\\nThe concert on this particular occasion was a public one, and the public had been invited by a newspaper advertisement inserted by Rev. Toothe. There was no admission charge but a free will \\u2022offering.\\nThe plaintiff, at the time of her fall, was a registered nurse in her early sixties. As the wife of the pastor of the church, she was active in entertaining the choir by seeing that they received supper the night of the performance and that they got to the hall. She also helped in making the arrangements for housing them with members of the church congregation and seeing that they met their host and hostess. She had nothing to do with making arrangements for the use of the hall itself. She had never been in the hall before and got there just a few minutes before the concert began. She testified:\\n\\u201c. . . When the concert was over, as I said before, I was responsible for the students to get a place to stay and I checked and found that most of the students had made their contacts already with their host and hostess that were waiting in the lobby but this one boy so I proceeded down the center aisle to find Gayle Bailey. With respect to the difference in the lights, if any, between the time the concert was just getting over and the time it was over, it is hard to say, the lights were still dim, at least they had not been turned on bright. They were still dim in the auditorium. The appearance of the lighting on the stage of the auditorium immediately after the concert when I started walking down the aisle was very bright.\\nAs to whether I could see the rope part the way around the orchestra pit before I got to it, I say, before I got to it thei'e were people standing down there and you could see portions of it but not the whole rope. There was no one in the center aisle. #\\nWith respect to the appearance of the orchestra pit as I walked along the aisle headed towards the stage, just the continued walkway of the floor that I was walking on of the aisle; I was \\u2014\\u25a0 didn\\u2019t see an orchestra pit, didn\\u2019t seem like there was one there. There were no lights of any sort on the posts beside of the aisle that lead into the pit. There were no lights within the pit. There were no lights shining into the pit. As I walked forward down the aisle I was not talking to anyone, I was looking straight ahead, I was looking for some particular person, Gale Bailey, one of the students. As I walked down one of the other students, another student was on the platform and I called to him and said, \\u2018Where is Gale?\\u2019 By platform, I mean staging, whatever you want to call it.\\nI am five-two tall. With respect to the approximate height or my best estimate as to the approximate height of the stage above the floor level of the audience hall at the front of the hall, I say, I am sorry, but I didn\\u2019t have to look up if that is what you mean. I did not have to look up. Seems I was looking straight ahead, I didn\\u2019t have to look up from where I was.\\nIn comparing the lighting in the pit with the lighting in the hall and the lighting on the stage, I say, in that case I would say it was bright and it was dark and it was dim. From where I was walking down that aisle, I cannot recall that I could see any particular individual light or light bulb on the stage. I actually recall falling down into the pit. I could not give you an estimate of the depth of the pit below the floor right side of the pit, that is the floor of the hall, or how far I fell down into the pit. I have not seen that pit since, I do not know. I was so frightened that I could not tell you. It all happened so quickly I am sure \\u2014 I just know I fell and it was a sudden shock. I don\\u2019t recall seeing a table either within the orchestra pit or outside the pit. I don\\u2019t recall it either with or without recording devices. I had not arranged to make any recordings myself and I have no knowledge that anyone else was. I do not recall seeing any recording devices in there.\\u201d\\nThe plaintiff further testified that as she walked down the aisle and reached the last row of seats before the orchestra pit, she called to someone on the stage,\\n\\u201c. . . While I was talking to this person I was continuing to walk up, on up towards the stage. After he said that Gale was back I kept on going.\\nAs to whether my attention was still directed to this person, I say, not necessarily because he had already \\u2014 no, because he already had answered my question. I was not still carrying on a conversation with this person on the stage when I stepped off from the aisle into the orchestra pit. . . .\\n\\u2022K* -X-\\nI don\\u2019t know where I was looking when I stepped off the aisle into the orchestra pit. I don\\u2019t know now where I was looking at that time.\\u201d\\nPlaintiff received serious injuries.\\nSmith & Spivey for plaintiff appellant.\\nMarshall, Williams & Gorham by Lonnie B. Williams for defendant appellee, Thalian Association, Inc.\", \"word_count\": \"3475\", \"char_count\": \"19801\", \"text\": \"Campbell, J.\\nOn a motion for judgment of nonsuit the evidence on behalf of the plaintiff must be taken to be true and considered in the light most favorable to her and all reasonable inferences therefrom which are favorable to her must be drawn. Aaser v. Charlotte, 265 N.C. 494, 144 S.E. 2d 610 (1965).\\nOne who, expressly or by implication, invites others to come upon his premises to view an event being carried on therein, has the duty to be reasonably sure that he is not inviting them into danger and must exercise reasonable care for their safety. He is not an insurer of their safety and is liable only for injuries proximately caused by his failure to use reasonable care to discover and remove, or otherwise protect against, dangerous conditions, activities, or occurrences upon his premises. Since what constitutes reasonable care varies with the circumstances, the vigilance required of the owner of the arena in discovering a peril to the invitee and the precautions which he must take to guard against injuries therefrom will vary with the nature of the exhibition, the portion of the building involved, the probability of injury and the degree of injury reasonably foreseeable. The law does not require the owner to take steps for the safety of his invitees such as will unreasonably impair the attractiveness of his establishment for its customary patrons. Those who attend concerts and similar amusements or exhibitions must anticipate that they will be conducted in the usual manner and surroundings. The duty of the owner is to use reasonable care under the circumstances. Aaser v. Charlotte, supra.\\nThe statement of the rule is much easier than the application thereof.\\nThere are numerous cases in which the rules are set out and are applied to varying situations. In Smith v. Agricultural Society, 163 N.C. 346, 79 S.E. 632 (1913), a judgment of nonsuit was reversed where the plaintiff was attending a ballon ascension, his foot was caught in a rope attached to the ballon, and the plaintiff was taken on a ballon ride rather than simply remaining as a spectator. In Williams v. Strickland, 251 N.C. 767, 112 S.E. 2d 533 (1960), it was held that the complaint stated a good cause of action when the plaintiff alleged that the defendant, in operating an automobile race track, failed to provide patrons watching the race with proper seating or protective devices around the track in the way of adequate, fences and barricades to prevent patrons from being injured. In this case a wheel came off one of the racing automobiles and struck the plaintiff.\\nIn Dockery v. Shows, 264 N.C. 406, 142 S.E. 2d 29 (1965), a general concessionaire was held liable for the negligence of a sub-concessionaire when a patron was injured by one of the amusement devices which was inherently dangerous if precautions were not taken to assure the safety of the riders thereon.\\nIn Revis v. Orr, 234 N.C. 158, 66 S.E. 2d 652 (1951), a dance hall proprietor was held not liable to a patron who fell over a chair outside of the ladies restroom door. The patron complained that the fall was due to the dim lights. It was held that a dance hall need not be brightly lighted.\\nIn Benton v. Building Co., 223 N.C. 809, 28 S.E. 2d 491 (1944), a patron opened a door from the lobby of a building into a cigar shop, failed to notice a step-down and fell. A judgment of nonsuit was sustained for that maintaining a difference in floor levels necessitating a step-down does not constitute negligence.\\nIn Cupita v. Country Club, 252 N.C. 346, 349, 113 S.E. 2d 712 (1960), a judgment of nonsuit was sustained where a musician preparing to play for a club dance left the parking lot and took a shortcut across the premises and fell into a hole. The court said:\\n\\\"The owner or occupant of premises is liable for injuries sustained by persons who have entered lawfully thereon only when the injury results from the use and occupation of that part of the premises which has been designed, adapted, and prepared for the accommodation of such persons.\\\" . If an invitee goes \\\"to out-of-way places on the premises, wholly disconnected from and in no way pertaining to the business in hand\\\" and is injured, there is no liability. [B]ut a slight departure by him \\\"in the ordinary aberrations or casualties of travel\\\" do not change the rule or ground of liability, and the protection of the law is extended to him \\\"while lawfully upon that portion of the premises reasonably embraced within the object of his visit.\\\" i )\\u00ed\\n\\\"The owner or person in charge of premises has a duty to keep the premises which are within the scope of the invitation in a reasonably safe condition for an invitee's safety for all uses by an invitee in a manner consistent with the purpose of the invitation, but the owner or person in charge is not bound to keep them in a reasonably safe condition for uses which are outside of the scope and purpose of the invitation, for which the property was not designed, and which could not reasonably have been anticipated\\nIn Harrison v. Williams, 260 N.C. 392, 132 S.E. 2d 869 (1963), the plaintiff was directed by an employee of a restaurant to a cigarette machine which was at the end of a counter. In going to the cigarette machine the plaintiff did not anticipate a step-down when she came around the end of the counter in the restaurant and as a result fell and was injured. It was held that the plaintiff had failed to establish actionable negligence on the part of the defendant for that different floor levels in private or public buildings connected by steps are so common that the possibility of their presence is anticipated by prudent persons. Such construction is not an act of negligence unless by its character, location, or surrounding conditions a reasonably prudent person would not be likely to expect a step or see it.\\nIn the instant case there is no evidence that the construction of the hall with a depressed orchestra pit some 8 to 14 inches below the main floor of the auditorium constituted negligent construction. There was no evidence that patrons attending the concert were expected to go down to the front of the hall after the concert was over when that was not the way to any exit and only led to the stage. In the instant case Thalian had subleased the premises and surrendered charge thereof to the Advent Christian denomination for the choir performance. Thalian was obligated to do this under the lease which it had with the city. Thalian was not responsible for the construction of the hall, and under its lease, could not have changed the construction of the orchestra pit without first procuring approval from the city which owned the premises. There was no inherent danger in the construction, and the type and manner of construction was observed by and known to the sublessee, Advent Christian denomination, which was in charge of putting on the performance. The choir leader, and not Thalian, had given the directions as to what lights would be needed and when the curtain would need to be opened. The evidence in this case reveals that Thalian had relinquished control and operation of the premises for this particular performance.\\nThe evidence, in the light most favorable to the plaintiff, fails to establish any duty on the part of Thalian to the plaintiff which was breached and for which Thalian should respond in damages. We hold that the judgment of nonsuit was proper.\\nAffirmed.\\nPaekeR and Vaughn, JJ., concur.\"}" \ No newline at end of file diff --git a/nc/8550161.json b/nc/8550161.json new file mode 100644 index 0000000000000000000000000000000000000000..7dae22bc53c12420a2d3b686fd018199c4fbcdc4 --- /dev/null +++ b/nc/8550161.json @@ -0,0 +1 @@ +"{\"id\": \"8550161\", \"name\": \"IN THE MATTER OF: MICHAEL JAMES FEWELL\", \"name_abbreviation\": \"In re Fewell\", \"decision_date\": \"1977-02-02\", \"docket_number\": \"No. 7626DC618\", \"first_page\": \"295\", \"last_page\": \"298\", \"citations\": \"32 N.C. App. 295\", \"volume\": \"32\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T16:59:41.923917+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges Britt and Morris concur.\", \"parties\": \"IN THE MATTER OF: MICHAEL JAMES FEWELL\", \"head_matter\": \"IN THE MATTER OF: MICHAEL JAMES FEWELL\\nNo. 7626DC618\\n(Filed 2 February 1977)\\nInfants \\u00a7 10\\u2014 finding of crime committed by infant \\u2014 adjudication of delinquency\\nWhere the trial judge heard evidence and found that respondent had broken and entered a residence and had committed larceny and received stolen goods, but the judge postponed \\u201cadjudication and disposition\\u201d pending receipt of a social summary, such proceedings constituted a valid adjudicatory hearing, despite the inadvertent wording of the order postponing \\u201cadjudication and disposition.\\u201d\\nAppeal by respondent from Lanning, Judge. Order entered 23 March 1976 in District Court, Mecklenburg County. Heard in the Court of Appeals 11 January 1977.\\nRespondent was brought before the Mecklenburg County Juvenile Court on three petitions alleging delinquency. Two of them alleged felonious breaking and entering of a residence and larceny therefrom, while the third alleged felonious receiving of stolen goods. The juvenile hearing was held before Judge Black on 24 February 1976. Respondent was represented by counsel.\\nJudge Black heard evidence from both sides and entered an order in the matter, the pertinent parts of which are as follows:\\n\\u201cBased on the evidence presented in Court, The Court Finds that the juvenile did in fact' and beyond a reasonable doubt commit the breaking and entering into the residence of Lynn Gail Lewis as alleged in the Petition dated December 18,1975. ... The Court Finds that the juvenile did in fact and beyond a reasonable doubt receive stolen goods. . . .\\n\\u201cThe Court defers adjudication and disposition in this matter until March 16, 1976 . . . pending receipt of a social summary.\\u201d\\nThe matter came up on 16 March 1976 before Judge Lan-ning. He ordered \\u201cdisposition\\u201d of the case continued until 23 March 1976. On that day Judge Lanning entered an order which stated:\\n\\u201cThis Matter Coming On To Be Heard this the 23rd day of March, 1976 for disposition. . . .\\n\\u201cThe Court Received the social summary as previously requested.\\n\\u201cThe Court Finds that it would be in the best interest of the juvenile that he be placed on probation for a period of one year.\\n\\u201cTherefore, The Court Orders that the juvenile be placed on probation for period of one year. . .\\nFrom the order of disposition by Judge Lanning and adjudication and finding of facts by Judge Black, respondent appeals.\\nAttorney General Edmisten, by Special Deputy Attorney General John M. Silverstein, for the State.\\nMecklenburg County Public Defender Michael S. Scofield, by Assistant Public Defender James Fitzgerald, for the respondent.\", \"word_count\": \"1047\", \"char_count\": \"6611\", \"text\": \"BROCK, Chief Judge.\\nThe only question presented to this Court for determination is whether the juvenile court committed error by placing the respondent on probation without an adjudication or finding that he was delinquent. The respondent argues the initial proceeding terminated in an order that postponed \\\"adjudication and disposition\\\" until a social summary could be filed. At the subsequent hearing, disposition of the matter occurred with imposition of probation, but in neither hearing was there an adjudication or finding of delinquency upon which to base the disposition order. We disagree.\\nGeneral Statute 7A-285 governing juvenile hearings states:\\n\\\"The juvenile hearing shall be a simple judicial process designed to adjudicate the existence or nonexistence of any of the conditions defined by G.S. 7A-278(2) through (5) which have been alleged to exist, and to make an appropriate disposition to achieve the purposes of this Article. In the adjudication part of the hearing, the judge shall find the facts and shall protect the rights of the child. . . .\\n\\\"The court may continue any case from time to time to allow additional factual evidence, social information or other information needed in the best interest of the child. If the court finds that the conditions alleged do not exist, or that the child is not in need of the care, protection or discipline of the State, the petition shall be dismissed.\\n\\\"At the conclusion of the adjudicatory part of the hearing, the court may proceed to the disposition part of the hearing, or the court may continue the case for disposition after the juvenile probation officer or family counselor or other personnel available to the court has secured such social, medical, psychiatric, psychological or other information as may be needed for the court to develop a disposition related to the needs of the child or in the best interest of the State. The disposition part of the hearing may be informal, and the court may consider written reports or other evidence concerning the needs of the child.\\\"\\nUnder G.S. 7A-278(2) a \\\"delinquent child\\\" is defined as \\\"any child who has committed any criminal offense under State law or under an ordinance of local government. . . \\\"\\nThe statute clearly contemplates two phases in a juvenile hearing \\u2014 adjudication and disposition. In the present case the proceedings before Judge Black constituted a valid adjudicatory hearing, despite the inadvertent wording of the order postponing \\\"adjudication and disposition.\\\"\\nAs stated in G.S. 7A-285, the purpose of the adjudicatory part of the hearing is to find \\\"the existence or nonexistence of any of the conditions defined by G.S. 7A-278(2) through (5).\\\" In his order Judge Black found as fact and beyond reasonable doubt that respondent had committed the offense of breaking and entering, and had received stolen property. Thus, the function of the adjudicatory part of the hearing was accomplished in that the conditions defined in G.S. 7A-278 (2) were found to exist. While a specific finding adjudicating the child to be \\\"delinquent\\\" would have made for clarity, such terminology is not required by the statute. The court found the conditions of delinquency \\u2014 the commission of a criminal offense \\u2014 to exist. That finding constitutes a sufficient adjudication of delinquency.\\nExamination of the record shows that the postponement of final action in the case by Judge Black was solely to allow social summaries to be prepared and submitted. General' Statute 7A-285 provides for such continuances so that the court can obtain pertinent information and assistance to aid it in the disposition phase of the hearing. Judge Lanning's order imposing probation was made after examination of the social summaries. The disposition was based on findings, supported by evidence, of the commission of acts that constituted delinquency. And a disposition imposing probation in cases of delinquency is authorized under G.S. 7A-286.\\nThe order of the juvenile court is\\nAffirmed.\\nJudges Britt and Morris concur.\"}" \ No newline at end of file diff --git a/nc/8551097.json b/nc/8551097.json new file mode 100644 index 0000000000000000000000000000000000000000..0d0810d07bf98acfbb85f65cff4ee3f05d980cf7 --- /dev/null +++ b/nc/8551097.json @@ -0,0 +1 @@ +"{\"id\": \"8551097\", \"name\": \"STATE OF NORTH CAROLINA v. MARK CARVIN OLDS\", \"name_abbreviation\": \"State v. Olds\", \"decision_date\": \"1973-12-12\", \"docket_number\": \"No. 733SC761\", \"first_page\": \"213\", \"last_page\": \"214\", \"citations\": \"20 N.C. App. 213\", \"volume\": \"20\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T21:45:34.142126+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Judge Brock and Judge Parker concur.\", \"parties\": \"STATE OF NORTH CAROLINA v. MARK CARVIN OLDS\", \"head_matter\": \"STATE OF NORTH CAROLINA v. MARK CARVIN OLDS\\nNo. 733SC761\\n(Filed 12 December 1973)\\nOn appeal from Tillery, Judge, at the 18 June 1973 Session of Pitt Superior Court.\\nThe defendant, Mark Carvin Olds, was tried at the November 1971 Session of the Superior Court of Pitt County, North Carolina, and convicted of involuntary manslaughter. A sentence of six to eight years was suspended and defendant placed on probation for five years under the usual conditions of probation and the special condition that he pay a fine of One Thousand Dollars. At the June 1973 Session of the Pitt County Superior Court before the Honorable L. Bradford Tillery, after due and proper notice to the defendant, his probation officer reported that the defendant had violated the terms of his probation in the following manner: (a) had been convicted of driving without an operator\\u2019s license; (b) had been convicted in New York of possession of a dangerous weapon; (c) had paid only Seventy Dollars towards his fine and costs; and (d) had changed his place of residence without securing written consent of the probation officer. The court found those violations and entered into effect the suspended sentence of not less than six nor more than eight years. From such sentence the defendant in open court gave notice of appeal.\\nAttorney General Robert Morgan by Assistant Attorney General Edwin M. Speas, Jr., for the State.\\nOwens, Browning & Haigwood by Mark W. Owens, Jr., for defendant appellant.\", \"word_count\": \"277\", \"char_count\": \"1663\", \"text\": \"CAMPBELL, Judge.\\nThis case only presents the face of the record for our review. We have carefully reviewed the record and find no error.\\nNo error.\\nChief Judge Brock and Judge Parker concur.\"}" \ No newline at end of file diff --git a/nc/8552130.json b/nc/8552130.json new file mode 100644 index 0000000000000000000000000000000000000000..1a2c651d0b7c4b86bc4670856b205d0619d20fe9 --- /dev/null +++ b/nc/8552130.json @@ -0,0 +1 @@ +"{\"id\": \"8552130\", \"name\": \"BURKE COUNTY PUBLIC SCHOOLS BOARD OF EDUCATION v. THE SHAVER PARTNERSHIP\", \"name_abbreviation\": \"Board of Education v. Shaver Partnership\", \"decision_date\": \"1980-05-06\", \"docket_number\": \"No. 7925SC800\", \"first_page\": \"573\", \"last_page\": \"578\", \"citations\": \"46 N.C. App. 573\", \"volume\": \"46\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T01:13:49.759499+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges Clark and Erwin concur.\", \"parties\": \"BURKE COUNTY PUBLIC SCHOOLS BOARD OF EDUCATION v. THE SHAVER PARTNERSHIP\", \"head_matter\": \"BURKE COUNTY PUBLIC SCHOOLS BOARD OF EDUCATION v. THE SHAVER PARTNERSHIP\\nNo. 7925SC800\\n(Filed 6 May 1980)\\n1. Arbitration and Award \\u00a7 1\\u2014 Federal Arbitration Act \\u2014 conflicting state law-applicability of Act\\nIf the Federal Arbitration Act, 9 U.S.C. \\u00a7 2, applies to a particular contract, the Act supersedes conflicting state law, notwithstanding a choice of law provision in the contract.\\n2. Arbitration and Award \\u00a7 1\\u2014 Federal Arbitration Act \\u2014 transaction involving commerce \\u2014 interstate shipment of goods required\\nA \\u201ctransaction involving commerce\\u201d within the meaning of the Federal Arbitration Act does not encompass transactions which do not involve or relate to actual physical interstate shipment of goods.\\n3. Arbitration and Award \\u00a7 1\\u2014 contract for architectural services \\u2014 inapplicability of Federal Arbitration Act\\nThe Federal Arbitration Act did not apply to a contract between the parties, the essence of which was for defendant to provide architectural services to plaintiff for the construction of two high schools, since the evidence did not show that the contract was a transaction involving commerce.\\nAPPEAL by defendant from Griffin, Judge. Orders entered 17 May 1979 and 26 June 1979, in the Superior Court of BURKE County. Heard in the Court of Appeals 5 March 1980.\\nThis is an action for damages allegedly resulting from defects in the design of the roof on a school owned by Plaintiff Board of Education. Plaintiff seeks $150,000.00 in damages from Defendant.\\nDefendant responded by demanding arbitration of the dispute pursuant to the Rules of the American Arbitration Association and moved for a stay of the action pending arbitration.\\nPlaintiff denied the existence of an agreement to arbitrate and obtained a Temporary Restraining Order restraining any further proceedings in the arbitration.\\nThe Court entered an Order denying defendant\\u2019s motion to stay the lawsuit, and allowing plaintiff\\u2019s motion to stay further arbitration proceedings. The Court held that the Federal Arbitration Act, which would require arbitration of the dispute, did not apply. Defendant gave notice of appeal.\\nSimpson, Baker, Aycock & Beyer, by Dan R. Simpson and Samuel E. Aycock, for the plaintiff\\nMoore and Van Allen, by Jeffrey J. Davis, for the defendant.\", \"word_count\": \"1692\", \"char_count\": \"10606\", \"text\": \"MARTIN (Robert M.), Judge.\\nThe question dispositive of this appeal is whether the contract between the parties is a transaction involving interstate commerce. The trial court found that the contract did not constitute a transaction involving commerce, but we are not bound by those findings of fact, and may look at all the evidence to determine whether in fact the evidence does show that the contract was a transaction involving commerce. Setzer v. Annas, 286 N.C. 534, 212 S.E. 2d 154 (1975).\\nIt is now well settled that if the Federal Arbitration Act, 9 U.S.C. \\u00a7 2, applies to a particular contract, the act supersedes conflicting state law, notwithstanding a choice of law provision in the contract. In General Atomic Co. v. Felter, 436 U.S. 493, 56 L.Ed. 2d 480, 98 S.Ct. 1939 (1978) a New Mexico State trial court judge had enjoined General Atomic Company from pursuing arbitration under the Federal Act. The Supreme Court, in applying the Federal Act to these state court proceedings, held that a state court had no power to enjoin resort to arbitration under the Federal Act.\\nThe contract in the case sub judice contained an arbitration clause but whether the contract evidences a transaction involving commerce is seriously in question. Prima Paint Corp. v. Flood & Conklin, 388 U.S. 395, 18 L.Ed. 2d 1270, 87 S.Ct. 1801 (1967), involved a \\\"consulting agreement\\\" between the parties, a Maryland corporation and a New Jersey corporation. This consulting agreement was closely associated with a contract pursuant to which the plaintiff purchased the defendant's multi-state paint business and transferred the manufacturing operation from New Jersey to Maryland. The United States Supreme Court held that \\\"[t]he consulting agreement was inextricably tied to this interstate transfer and to the continuing operations of an interstate manufacturing and wholesaling business. There could not be a clearer case of a contract evidencing a transaction in interstate commerce.\\\" Id. at 401, 18 L.Ed. 2d at 1276, 87 S.Ct. at 1804-05.\\nJustice Fortas, writing the opinion of the Court, referred by footnote to the legislative history of the Federal Arbitration Act in response to a dissent to his opinion written by Justice Black, who argued that the language \\\"transactions involving commerce\\\" should be limited to \\\"contracts between merchants for the interstate shipment of goods.\\\" As noted by Justice Fortas, \\\". . . the House Report on this legislation . . . proclaims that '(t)he control over interstate commerce [one of the bases for the legislation] reaches not only the actual physical interstate shipment of goods but also contracts relating to interstate commerce.' \\\" Id. at 401-02, 18 L.Ed. 2d at 1276, 87 S.Ct. at 1805 (citing H. R. Rep. No. 96, 68th Cong., 1st Sess., 1 (1924)). (Emphasis added.) The point concerning this language in Justice Fortas' opinion is that, while denying Justice Black's contention that the Federal Arbitration Act should apply only to contracts between merchants for the interstate shipment of goods, it seems clearly to equate the term \\\"interstate commerce\\\" with the phrase \\\"actual physical interstate shipment of goods.\\\"\\nJustice Fortas' argument is summarized as follows:\\nIt would be remarkable to say that a contract for the purchase of a single can of paint may evidence a transaction in interstate commerce, but that an agreement relating to the facilitation of the purchase of an entire interstate paint business and its re-establishment and operation in another State is not.\\nId. at 402, 18 L.Ed. 2d at 1276, 87 S.Ct. at 1805. It is thus manifest from Prima Paint that the term \\\"transaction involving commerce\\\" was not thereby expanded to encompass transactions which do not involve or relate to actual physical interstate shipment of goods.\\nIn Conley v. San Carlo Opera Company, 163 F. 2d 310, (2d Cir. 1947) the plaintiff had contracted with the defendant for an option on plaintiff's services as an opera singer. A controversy arose, and the Opera Company claimed that the arbitration clause contained in the contract was governed by the Federal Arbitration Act and was therefore irrevocable. The court held that the contract did not evidence a transaction involving commerce, even though the plaintiff would be required to travel throughout the United States giving operatic performances. Thus, the act which consummated the contract was the singing and not the travel between the states.\\nElectric Co. v. Hospital Corp., 42 N.C. App. 351, 256 S.E. 2d 529 (1979) involved a contract between an electrical contractor and the Durham County General Hospital Corporation, wherein the electrical contractor contended the Federal Arbitration Act applied because some of the materials which it used in completing the electrical contract had been shipped in interstate commerce. We rejected this argument, deciding that the shipment across state lines of materials necessary for the electrical contractor to complete its performance under the contract was incidental to, and not the essence of, the contract.\\nIn the case sub judice, the affidavit of John Shaver, a general partner of defendant, submitted in support of the proposition that the contract evidences a transaction involving interstate commerce states:\\n2. At the time the building which is the subject of this action was designed and built, The Shaver Partnership had offices in Salina, Kansas, Michigan City, Indiana, and Hickory, North Carolina.\\n3. Virtually all of the design work done for the building which is the subject of this lawsuit was done in Michigan City, Indiana.\\n4. Even during the construction phase, most of the field work was done by personnel working out of the Michigan City, Indiana office.\\n5. Approximately 85% to 90% of all the work done by The Shaver Partnership in fulfillment of its contract with respect to the building that is the subject of this lawsuit was done in Michigan City, Indiana.\\n6. All of the bookkeeping and accounting records maintained by The Shaver Partnership with respect to the design and construction of the building that is the subject of this lawsuit were maintained in Salina, Kansas.\\n7. Payments made by Plaintiff in this action to The Shaver Partnership for work done in the design of the building that is the subject of this lawsuit were made to The Shaver Partnership's office in Michigan City, Indiana.\\n8. In the course of the design of the building that is the subject of this lawsuit, personnel from The Shaver Partnership had numerous dealings with representatives of building material suppliers from all around the country concerning the specification of building materials for the construction of the buildings.\\n9. In fact, The Shaver Partnership did indeed specify the use of materials manufactured by suppliers in many different states, for the construction of the building that is the subject of this lawsuit.\\n10. In addition, in the course of performing the contract for the design of the building that is the subject of this lawsuit, The Shaver Partnership consulted with an Indiana food service consultant for the design of food service facilities for the building.\\n11. Also, the structural engineering design work, required for the design of the building that is the subject of this lawsuit, was performed for The Shaver Partnership by Carl Walker Associates, whose offices are in Kalamazoo, Michigan.\\nHowever, it is evident that the essence of the contract was for the defendant to provide architectural services to plaintiff for the construction of two high schools. The architectural services were the very heart of the contract, that is the consummation of it. The above factors incidental to the contract, many of which might go to establish diversity of citizenship between the parties, do not establish that the essence of the contract between the plaintiff and defendant involve commerce, e.g., the interstate shipment of goods.\\nThe Federal Arbitration Act is \\\"based upon and confined to the incontestable federal foundations of 'control over interstate commerce and over admiralty.' \\\" 388 U.S. at 405, 18 L.Ed. 2d at 1278, 87 S.Ct. at 1807. (Citation omitted.) The Act does not apply in this case for that the evidence does not show that the contract was a transaction involving commerce. The order entered by the trial court is\\nAffirmed.\\nJudges Clark and Erwin concur.\"}" \ No newline at end of file diff --git a/nc/8555151.json b/nc/8555151.json new file mode 100644 index 0000000000000000000000000000000000000000..fc44670ed2ea89f0a7af762db67871c6746eebbc --- /dev/null +++ b/nc/8555151.json @@ -0,0 +1 @@ +"{\"id\": \"8555151\", \"name\": \"IN THE MATTER OF: MARVIN A. MACKIE\", \"name_abbreviation\": \"In re Mackie\", \"decision_date\": \"1978-06-06\", \"docket_number\": \"No. 7827DC102\", \"first_page\": \"638\", \"last_page\": \"640\", \"citations\": \"36 N.C. App. 638\", \"volume\": \"36\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T00:08:40.032123+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges Parker and Mitchell concur.\", \"parties\": \"IN THE MATTER OF: MARVIN A. MACKIE\", \"head_matter\": \"IN THE MATTER OF: MARVIN A. MACKIE\\nNo. 7827DC102\\n(Filed 6 June 1978)\\nInsane Persons \\u00a7 1\\u2014 report of absent physician \\u2014 denial of confrontation \\u2014 insufficient evidence\\nIn a rehearing for involuntary commitment to a mental health care facility, the admission of a written report prepared by a physician who was not present at the hearing denied respondent his right to confront and cross-examine the physician, G.S. 122-58.7(e), and the court\\u2019s findings of mental illness and imminent danger were unsupported by competent evidence where the report furnished the only basis for such findings.\\nAPPEAL by respondent from Edens, Judge. Order entered 25 August 1977 in District Court, BURKE County. Heard in the Court of Appeals 26 May 1978.\\nThis is a special proceeding initially instituted by petitioner, Pearline Mackie, for the involuntary commitment of her son, Marvin A. Mackie. The respondent was committed pursuant to the original petition for a term to expire on 26 August 1977. On 1 August 1977 Dr. William A. Moody, Chief of Medical Services at Broughton Hospital, requested a rehearing pursuant to G.S. 122-58.11 to determine the need for continued hospitalization of the respondent.\\nAt the hearing conducted on 25 August 1977, the State presented the testimony of the petitioner who stated that she had not seen the respondent since January of 1977, that she was not aware of his recent behavior, but that she thought \\u201che looked better.\\u201d The State also introduced into evidence the report of Dr. William A. Moody in which he stated that the respondent is mentally ill and is imminently dangerous to himself or others.\\nAt the conclusion of the hearing the trial judge incorporated by reference the medical report prepared by Dr. Moody and found \\u201cby clear, cogent and convincing evidence, [that] the respondent is . . . mentally ill ... , and is imminently dangerous to himself or others, and is in need of continued hospitalization.\\u201d From the order recommitting the respondent for a period not to exceed six months, the respondent appealed.\\nAttorney General Edmisten, by Associate Attorney Christopher S. Crosby, for the State.\\nGaither and Wood, by J. Michael Gaither; and Rebecca L. Feemster for the respondent.\", \"word_count\": \"772\", \"char_count\": \"4822\", \"text\": \"HEDRICK, Judge.\\nThe respondent's brief reveals that the respondent was discharged from the mental health facility on 9 March 1978. Nevertheless, our courts have made it clear that a prior discharge will not render questions challenging the involuntary commitment proceeding moot. In re Hatley, 291 N.C. 693, 231 S.E. 2d 633 (1977).\\nIn order to support the recommitment of a respondent in an involuntary commitment proceeding, the trial court must find, \\\"by clear, cogent, and convincing evidence that the respondent is mentally ill or inebriate, and imminently dangerous to himself or others, . . . and in need of continued hospitalization.\\\" G.S. 122-58.11. The two ultimate facts of (1) mental illness or inebriacy, and (2) imminent danger, must be supported by facts which are found from the evidence and recorded by the District Court. In re Hogan, 32 N.C. App. 429, 232 S.E. 2d 492 (1977).\\nIn his two assignments of error the respondent contends that the trial court erred in admitting the medical report of Dr. Moody without his accompanying testimony and that, therefore, there was no competent evidence to support the trial judge's finding of imminent danger. We agree.\\nThe medical report which was prepared by Dr. Moody and admitted by the trial court contains the findings that the respondent \\\"IS Mentally Ill or Inebriate\\\" and \\\"Is Imminently Dangerous to Himself or Others.\\\" General Statute 122-58.7(e), which is made applicable to rehearings by G.S. 122-58.11(c), provides that while medical reports are admissible in evidence in an involuntary commitment proceeding \\\"the respondents right to confront and cross-examine witnesses shall not be denied.\\\" Assuming without conceding that Dr. Moody's brief statement and conclusion as to the imminent danger of the respondent would support a recommitment order, his failure to appear at the hearing deprived the respondent of his right of confrontation and cross-examination. In re Hogan, 32 N.C. App. 429, 232 S.E. 2d 492 (1977); In re Benton, 26 N.C. App. 294, 215 S.E. 2d 792 (1975). Thus, the admission of the report into evidence was error.\\nThe only other evidence presented at the hearing was the testimony of the petitioner, the respondent's mother, that she had not seen the respondent in eight months and was unaware of his recent behavior. This evidence obviously furnished no support for the trial judge's findings of mental illness and imminent danger. Thus, we hold that since the findings of the trial court were unsupported by competent evidence, the order appealed from must be reversed.\\nReversed.\\nJudges Parker and Mitchell concur.\"}" \ No newline at end of file diff --git a/nc/8555399.json b/nc/8555399.json new file mode 100644 index 0000000000000000000000000000000000000000..783b51cd258f315b72bf3c1973dc1317c29d8aa2 --- /dev/null +++ b/nc/8555399.json @@ -0,0 +1 @@ +"{\"id\": \"8555399\", \"name\": \"L. W. McLAMB and Wife, MARGIE McLAMB v. BROWN CONSTRUCTION COMPANY\", \"name_abbreviation\": \"McLamb v. Brown Construction Co.\", \"decision_date\": \"1971-03-31\", \"docket_number\": \"No. 7118SC41\", \"first_page\": \"688\", \"last_page\": \"692\", \"citations\": \"10 N.C. App. 688\", \"volume\": \"10\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:47:19.227997+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judges Morris and Vaughn concur.\", \"parties\": \"L. W. McLAMB and Wife, MARGIE McLAMB v. BROWN CONSTRUCTION COMPANY\", \"head_matter\": \"L. W. McLAMB and Wife, MARGIE McLAMB v. BROWN CONSTRUCTION COMPANY\\nNo. 7118SC41\\n(Filed 31 March 1971)\\n1. Appeal and Error \\u00a7 49\\u2014 action for damages caused by blasting \\u2014 exclusion of evidence \\u2014 harmless error\\nIn an action to recover damages to plaintiffs\\u2019 residence allegedly caused by defendant\\u2019s blasting operations, the trial court did not commit prejudicial error in the exclusion of testimony by defendant\\u2019s expert witness tending to show that the blasting was 100 feet further away from plaintiffs\\u2019 residence than plaintiffs\\u2019 evidence tended to show, and that houses between plaintiffs\\u2019 residence and the blasting site bore no visible signs of damage to their exterior when defendant\\u2019s expert \\u201cjust looked at them,\\u201d the probative value of such testimony being so trivial that its exclusion could not have affected the result of the trial.\\n2. Damages \\u00a7 13; Witnesses \\u00a7 5\\u2014 testimony competent for purpose of corroboration\\nIn an action to recover damages to plaintiffs\\u2019 residence allegedly caused by defendant\\u2019s blasting operations, testimony by two witnesses describing the damage plaintiffs had pointed out to them as having been caused by the blasting, and testimony by another witness that he had not observed cracks in the ceiling in plaintiffs\\u2019 house before the blasting, held competent to corroborate testimony by plaintiffs.\\n3. Damages \\u00a7 13; Evidence \\u00a7 15\\u2014 damages observed 16 months after blasting \\u2014 competency of testimony\\nTestimony by plaintiffs\\u2019 witness as to damage he observed to plaintiff\\u2019s house was not rendered incompetent by the fact that the witness\\u2019 observations were made some 16 months after the blasting occurred.\\n4. Appeal and Error \\u00a7 48\\u2014 admission of evidence \\u2014 harmless error\\nAdmission of testimony by a neighbor of plaintiffs that he found a crack in his own windowsill about a week after the blasting, if error, was not prejudicial to defendant.\\n5. Damages \\u00a7 13; Evidence \\u00a7 15\\u2014 fair market value of home before and after blasting \\u2014 testimony based on inspection 17 months after blasting\\nIn an action to recover damages to plaintiffs\\u2019 home allegedly caused by defendant\\u2019s blasting operations, opinion testimony by plaintiffs\\u2019 witness as to the fair market value of the residence before and after the damages was not rendered incompetent by the fact that the inspection of the residence by the witness was made some seventeen months after the blasting.\\n6. Rules of Civil Procedure \\u00a7 51\\u2014 recapitulation of the evidence\\nThe trial court is not required to recapitulate all the evidence, but only so much as is necessary to explain the application of the law. G.S. 1A-1, Rule 51(a).\\nAppeal by defendant from Crissman, Superior Court Judge, 17 August 1970 Session, High Point Division, Guilford Superior Court.\\nPlaintiffs instituted this action to recover damages to their residence allegedly caused by blasting operations carried out by defendant. Plaintiffs allege, and defendant admits, that in October 1968 defendant used explosives for the purpose of dislodging rock deposits in the course of a ditch which defendant was excavating along Allen Jay Road near plaintiffs\\u2019 property.\\nPlaintiffs offered evidence which tended to show that the blasting by defendant was one thousand feet from plaintiffs\\u2019 house and that on 9, 10, or 11 October 1968 a blast, heavier than had been felt previously, \\u201cshook the house enough that you could feel the whole house vibrating and moving, and it run a plaster streak through our walls, completely through it, and plaster fell in the floor that day. . . .\\u201d Plaintiffs\\u2019 evidence further tended to show cracks throughout the inside of the house in floors, walls, and ceilings; and cracks and damage to the exterior of the house. Plaintiffs\\u2019 evidence tended to show damages as high as $15,000.00.\\nDefendant offered evidence through its expert engineer which tended to show that the blasts were not of sufficient intensity to cause earth wave vibration damage to plaintiffs\\u2019 residence; that the damage to plaintiffs\\u2019 residence was caused by poor construction, by use of green timbers, by thermal and humidity forces, and by uneven settling of the structure. Defendant\\u2019s expert also testified that in his opinion all of plaintiffs\\u2019 damages could be completely repaired for $1,800.00.\\nThe jury returned a verdict in favor of plaintiffs assessing damages at $8,000.00. From judgment entered upon the verdict defendant appealed.\\nHaworth, Riggs, Kuhn & Haworth, by John Haworth for plaintiff s-appellees.\\nMorgan, Byerly, Post & Herring, by William L. Johnson, Jr., for defendant-appellant.\", \"word_count\": \"1566\", \"char_count\": \"9625\", \"text\": \"BROCK, Judge.\\nDefendant assigns as error that the trial judge refused to allow the following testimony of defendant's expert witness:\\n\\\"Q. Did you, at the time of this inspection, also inspect the vicinity of the blasting that took place ?\\n\\\"A. Yes, sir.\\n\\\"Q. Approximately how far is this from the house?\\n\\\"A. It was about 1100 feet.\\n\\\"Q. Are there other residences located between the location of the blasting and the residence of Mr. and Mrs. McLamb ?\\n\\\"A. Yes, sir. There is a woods and several residences between Mr. and Mrs. McLamb's residence and the site of the blasting.\\n\\\"Q. Did you inspect any of these other residences?\\n\\\"A. Only from the outside; just looked at them.\\n\\\"Q. Were there any visible signs of damage on the exterior of these houses?\\n\\\"A. No, sir.\\\"\\nThe testimony of the witness was by way of deposition and the trial judge had before him the later cross-examination of the witness wherein he testified that he was not present when the blasting was done. Therefore, the trial judge excluded the testimony quoted above upon the ground that it was hearsay. Conceding, without deciding, that it was error to exclude the testimony, we see no prejudice to defendant. The most that defendant could have hoped to establish by the excluded testimony was that the blasting was 100 feet further away from plaintiffs' residence than plaintiffs' evidence tended to show, and that houses between plaintiffs' residence and the blasting site bore no visible signs of damage to their exterior when defendant's expert \\\"just looked at them.\\\" The probative value of the excluded testimony was so trivial that we fail to see how its exclusion or admission would alter the results of the trial. A new trial will not be granted for mere technical error which could not have affected the result of the trial. 1 Strong, N.C. Index 2d, Appeal and Error, \\u00a7 47, p. 192.\\nDefendant assigns as error the admission of certain testimony of plaintiffs' witnesses. Two of plaintiffs' witnesses were allowed to describe the damage plaintiff had pointed out to them as having been caused by the blasting. Their testimony served to corroborate plaintiff's testimony, and was admissible for that purpose. Defendant also complains that one of plaintiffs' witnesses was allowed to testify that he had not observed the cracks in the ceiling in plaintiffs' house before the blasting. This testimony was competent as tending to corroborate plaintiffs' testimony that the cracks did not exist before the blasting.\\nDefendant assigns as error that one of plaintiffs' witnesses was allowed to testify as to damage he observed to plaintiffs' house about sixteen months after the blasting; it is defendant's contention that the witness' observations are too remote in time from the date of the blasting. Defendant's objection at trial was as follows: \\\"Objection to his testimony. It is some year and a half or almost two years later, if your Honor please.\\\" This objection was overruled and the witness was allowed to describe the damage observed and give his opinion as to the cause. The mere fact that the inspection by the witness was over a year after the date of the blasting does not alone render the testimony incompetent. Defendant's objection was properly overruled.\\nDefendant assigns as error that a neighbor of plaintiffs was allowed to testify that he found a crack in his own windowsill about a week after the blasting. Conceding, without deciding, that this testimony was incompetent, its probative value is so scanty that we fail to see how its inclusion or exclusion would alter the results of the trial. Mere technical error does not justify a new trial.\\nDefendant assigns as error that plaintiffs' witness was allowed to give his opinion of the fair market value of plaintiffs' residence before and after the damages. It is defendant's conten tion that the inspection made by the witness was too remote in time from the date of the blasting. The inspection by this witness was about seventeen months after the blasting. It is defendant's contention that no showing- was made that the witness observed only the damage that existed immediately after the blasting. This contention cannot be sustained. The testimony was that plaintiff pointed out to the witness the areas which plaintiff contended were damaged by the blasting; and plaintiff had already fully testified and described the areas he contended were damaged by the blasting. The weight and credibility to be given the testimony was for jury determination.\\nDefendant assigns as error that the trial judge did not recapitulate all of the evidence, and that this amounted to an expression of opinion. We have carefully read the entire charge of the court to the jury, and we find no unfairness to defendant. The trial court is not required to recapitulate all of the evidence, but only so much as is necessary to explain the application of the law. G.S. 1A-1, Rule 51 (a).\\nThe remainder of defendant's assignments of error have been carefully considered and we have determined them to be without merit.\\nNo error.\\nJudges Morris and Vaughn concur.\"}" \ No newline at end of file diff --git a/nc/8557100.json b/nc/8557100.json new file mode 100644 index 0000000000000000000000000000000000000000..3ef7444065c150cbf159fdc1f4598a5c1666d38c --- /dev/null +++ b/nc/8557100.json @@ -0,0 +1 @@ +"{\"id\": \"8557100\", \"name\": \"STATE OF NORTH CAROLINA v. CURTIS TURNER\", \"name_abbreviation\": \"State v. Turner\", \"decision_date\": \"1974-06-05\", \"docket_number\": \"No. 7414SC419\", \"first_page\": \"608\", \"last_page\": \"615\", \"citations\": \"21 N.C. App. 608\", \"volume\": \"21\", \"reporter\": \"North Carolina Court of Appeals Reports\", \"court\": \"North Carolina Court of Appeals\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T01:13:44.162136+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Judge Brock and Judge Campbell concur.\", \"parties\": \"STATE OF NORTH CAROLINA v. CURTIS TURNER\", \"head_matter\": \"STATE OF NORTH CAROLINA v. CURTIS TURNER\\nNo. 7414SC419\\n(Filed 5 June 1974)\\n1. Criminal Law \\u00a7 169\\u2014 failure to show what witness\\u2019s answer would have been \\u2014 exclusion not prejudicial\\nDefendant failed to show prejudice in the exclusion of a witness\\u2019s answer on cross-examination where the record does not show what the witness would have said had he been allowed to answer.\\n2. Criminal Law \\u00a7 34\\u2014 prior offense \\u2014 question as to sentence proper\\nThe district attorney\\u2019s question put to defendant with respect to the type of sentence defendant had received in another county in connection with a separate crime was proper.\\n3. Criminal Law \\u00a7 97\\u2014 appearance of witness after beginning of jury deliberations \\u2014 exclusion of testimony proper\\nThe trial court did not err in refusing to permit defendant to introduce testimony of a witness who did not arrive in the courtroom until the jury had already begun its deliberations where defendant made his request and the court conducted a voir dire to determine the importance of the witness\\u2019s testimony before denying the request.\\n4. Criminal Law \\u00a7 111; Assault and Battery \\u00a7 15\\u2014 improper punctuation of instructions \\u2014 no prejudicial error\\nThough the insertion of periods in the trial court\\u2019s instructions would have made the instructions clearer, such errors in the transcript of the proceedings did not prejudice defendant.\\n5. Assault and Battery \\u00a7 16\\u2014 assault with deadly weapon with intent to kill inflicting serious injury \\u2014 failure to submit lesser included offenses \\u2014 no error\\nIn a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury where the evidence tended to show that the victim was shot in his chest with a .38 caliber pistol, the victim was treated in the hospital for eleven days and the hospital bill was over $3500, all the evidence showed serious injury; therefore, it was not error for the trial court to fail to submit to the jury any lesser included offense which did not contain serious injury as an element. G.S. 14-32.\\nAppeal by defendant from Clark, Judge, 22 October 1973 Session of Superior Court held in Durham County.\\nDefendant was charged with an assault with a deadly weapon with intent to kill inflicting serious injury by shooting James Wesley Crews in \\u2019his chest with a .38 cal. pistol. The offense was alleged to have occurred on 4 August 1973. A jury found defendant guilty \\u201cas charged,\\u201d and the court entered judgment imposing prison sentence of not less than 7 nor more than 10 years.\\nDefendant appealed.\\nAttorney General Robert Morgan, by Kenneth B. Oettinger, Associate Attorney, for the State.\\nLoflin, Anderson & Loflin, by Thomas B. Anderson, Jr., for defendant appellant.\", \"word_count\": \"2456\", \"char_count\": \"14548\", \"text\": \"BRITT, Judge.\\nBy his first assignment of error, defendant contends the court erred in sustaining the district attorney's objection to a question propounded by defendant's counsel to a State's witness on cross-examination. The record does not disclose what the answer to the question would have been had the witness been allowed to answer, therefore, defendant has failed to show prejudice. State v. Felton, 283 N.C. 368, 196 S.E. 2d 239 (1973). The assignment is overruled.\\nDefendant does not bring forward in his brief any argument with respect to his assignment of error No. 2, therefore, it is deemed abandoned.\\nBy his assignment of error No. 3, defendant contends the court erred in overruling his objection to the district attorney's question to defendant on cross-examination with respect to the \\\"type of sentence\\\" defendant received in Jones County in another case. Defendant had testified on direct examination that at the time of the offense for which he was being tried, he was \\\"on parole for second-degree murder in the death of his wife\\\"; that he pleaded guilty to that charge. On cross-examination, the district attorney asked defendant as to the type of sentence he received in Jones County (in connection with the murder of his wife). The court overruled defendant's objection to the question and defendant answered twenty years. Without further objection, defendant was asked how much time remained on that sentence and he answered 9 years and 15 days; and to the question \\\"That is what you would receive if your parole was revoked,\\\" he answered, \\\"Yes, sir.\\\"\\nWe do not think the question objected to was improper in this case. As to the two questions which followed, no objections were made as to them, therefore, defendant is in no position to complain. The assignment of error is overruled.\\nDefendant assigns as error No. 4 the failure of the court to permit him to introduce the testimony of a witness who did not arrive in the courtroom until after all other evidence had been presented, arguments to the jury had been made, the court's instructions to the jury had been given, and the jury had begun its deliberations. We find no merit in this assignment. Defendant's request to be allowed to introduce further testimony was addressed to the sound discretion of the trial judge, and his ruling is not reviewable on appeal unless abuse of discretion is shown. State v. Shutt, 279 N.C. 689, 185 S.E. 2d 206 (1971); State v. Jackson, 265 N.C. 558, 144 S.E. 2d 584 (1965). The record discloses that when defendant's request was made, the court conducted a voir dire to determine the importance of the witness' testimony. Following the voir dire, the trial judge stated: \\\"Well, the court elects, in its discretion, not to call the jury out to hear this witness. I think that this witness' testimony would be conflicting with the testimony offered by the defendant and maybe his witness, possibly Hazel Roper, and may do him more harm than good.\\\" We perceive no abuse of discretion and the assignment of error is overruled.\\nBy his assignments of error Nos. 5 and 6, based on his exceptions Nos. 5 and 6, defendant contends the court erred in charging the jury (1) that defendant had the specific intent to kill the prosecuting witness, and (2) that defendant inflicted serious bodily injury upon the prosecuting witness. The portions of the charge pertinent to these exceptions appear in the record as follows:\\n\\\"Now for you to find the defendant guilty of the offense charged in the Indictment, it is incumbent upon the State to satisfy you from the evidence and beyond a reasonable doubt of the following: That the defendant acted intentionally and without justification or excuse, such as in self-defense, and that the defendant used a deadly weapon. (I instruct you that a .38 caliber revolver is, as a matter of law, a deadly weapon; that the defendant had the specific intent to kill James Crews.)\\nException No. 5.\\n(Now, intent, Members of the jury, is a state of mind which is seldom, if ever, capable of direct or positive proof and must be inferred, if inferred at all, from all of the surrounding circumstances that the defendant inflicted serious bodily injury upon James Crews.)\\nException No. 6.\\\"\\nConsidered in context, the words set forth within the parentheses are proper; only the punctuation, or lack of punctuation, causes us difficulty. Certainly, the bench and bar cannot expect perfection in the transcription of trial court proceedings, particularly jury instructions. With respect to the portion of the charge challenged by exception No. 5, while a period rather than a semicolon following the word \\\"weapon\\\" would have indicated better a complete break in instructions, we think there is sufficient indication that there was a break between the instruction regarding a deadly weapon and the instruction with regard to specific intent to kill.\\nWith respect to the portions of the charge challenged by exception No. 6, our task in visualizing just how the judge gave the instructions becomes more difficult. Were there a period\\u2014 or even a semicolon \\u2014 after the word \\\"circumstances,\\\" there would be no problem. Nevertheless, when we consider the fact that the judge in stating the elements of the offense alleged, began each element with the word \\\"that,\\\" and that the words \\\"from all of the surrounding circumstances\\\" clearly relate to the element of intent, we are convinced that in transcribing the charge, a period or semicolon following the word \\\"circumstances\\\" was inadvertently left out. The assignments of error are overruled.\\nBy his assignment of error No. 7, defendant contends the trial court erred in failing to instruct the jury that they could return a verdict on the evidence in this case of the lesser included offenses of assault with a firearm with intent to kill and the misdemeanor of assault with a deadly weapon. The court instructed the jury that they could return a verdict of guilty as charged, guilty of assault with a deadly weapon inflicting serious injury, or not guilty. This assignment is without merit.\\nG.S. 14-82, the statute under which defendant was indicted, has undergone various changes in recent years. At the time of the alleged offense, 4 August 1978, the statute provided as follows:\\n\\\"Sec. 14-32. Felonious Assault With a Firearm or Other Deadly Weapon With Intent to Kill or Inflicting Serious Injury; Punishments.\\n\\u2014 (a) Any person who assaults another person with a deadly weapon with intent to kill and inflicts serious injury is guilty of a felony punishable by a fine, imprisonment for not more than ten (10) years, or both such fine and imprisonment.\\n(b) Any person who assaults another person with a deadly weapon and inflicts serious injury is guilty of a felony punishable by a fine, imprisonment for not more than five (5) years, or both such fine and imprisonment.\\n(c) Any person who assaults another person with a firearm with intent to kill is guilty of a felony punishable by a fine, imprisonment for not more than five (5) years, or both such fine and imprisonment.\\\"\\nWe think the question raised here was answered adversely to defendant in State v. Thacker, 281 N.C. 447, 189 S.E. 2d 145 (1972). In that case, the defendant was charged with felonious assault on two people on 10 March 1971. The evidence disclosed that the assaults were made with a knife with a 6-inch blade and that extensive wounds were inflicted on both victims, requiring lengthy hospitalization. On 10 March 1971, G.S. 14-32 provided as follows:\\n\\\"14-32. Assault with a firearm or other deadly weapon with intent to kill or inflicting serious injury; punishments.\\u2014 (a) Any person who assaults another person with a firearm or other deadly weapon of any kind with intent to kill and inflicts serious injury is guilty of a felony punishable under G.S. 14-2.\\n(b) Any person who assaults another person with a firearm or other deadly weapon per se and inflicts serious injury is guilty of a felony punishable by a fine or imprisonment for not more than five years, or both such fine and imprisonment.\\n(c) Any person who assaults another person with a firearm with intent to kill, is guilty of a felony punishable by \\u00e1 fine or imprisonment for not more than five years, or both such fine and imprisonment.\\\"\\nIn each case in Thacker, the court limited the jury to one of four verdicts: (1) guilty as charged, (2) guilty of assault inflicting serious injury, (3) guilty of assault with a deadly weapon, or (4) not guilty. In one of the cases (Waddell), the jury found defendant guilty as charged. In the other case (Pierce), the jury found defendant guilty of an assault inflicting serious injury. We quote from the opinion, pages 456-457:\\n\\\"It suffices to say that the crime condemned by G.S. 14-32 (b) is a lesser degree of the offense defined in G.S. 14-32(a), and a defendant is entitled to have the different permissible verdicts arising on the evidence presented to the jury under proper instructions . However, this principle applies when, and only when, there is evidence of the lesser degrees. State v. Smith, 201 N.C. 494, 160 S.E. 577 (1931). The presence of such evidence is the determinative factor.' State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545 (1954) .\\n\\\"In limiting the jury to the four verdicts enumerated above, the trial judge committed two errors: (1) He failed to submit defendant's guilt or innocence of assault on Miss Waddell with a deadly weapon per se inflicting serious injury, a felony punishable by a fine or imprisonment for not more than five years under G.S. 14-82 (b) ; and (2) he submitted defendant's guilt or innocence of an assault inflicting serious injury and an assault with a deadly weapon, misdemeanors condemned by G.S. 14-38 the punishment for which is limited to two years. All the evidence tends to show that defendant wielded a knife with a six-inch blade inflicting serious injury on both Miss Waddell and Mr. Pierce. A knife with a six-inch blade is a deadly weapon per se, and there is no evidence showing only the commission of the misdemeanors which were submitted to the jury, and nothing more, because a deadly weapon was used in both assaults and serious injury was inflicted on both victims. Therefore, these offenses are governed by G.S. 14-32 (a) if committed with intent to kill, or by G.S. 14-32 (b) absent such an intent.\\n\\\"These errors may be corrected in the Waddell case at the next trial. They are now history in the Pierce case because defendant cannot be retried for either the ten-year felony with which he was charged or the five-year felony punishable under G.S. 14-32 (b)\\nIn the case at bar, all of the evidence tended to show that the victim was shot in his chest with a .38 calibre pistol; that the victim was treated for his injuries in Duke Hospital for eleven days; and that the hospital bill was $3,540. As was true in Thacker, all the evidence showed serious injury; therefore, the trial court did not err in refusing to submit any lesser included offense that did not contain serious injury as an element. This holding finds support in State v. Jennings, 16 N.C. App. 205, 192 S.E. 2d 46 (1972), cert. den. 282 N.C. 428. In Jennings, decided after Thacker and citing Thacker, this court held that in a prosecution for felonious assault upon an officer with a deadly weapon with intent to kill, where all the evidence presented showed a shooting with a deadly weapon with an intent to kill, and none of the evidence showed a lack of such intent, the trial court did not err in failing to submit to the jury the lesser offense of assault with a deadly weapon (without intent to kill), inflicting serious injury.\\nWe have considered the other assignments of error brought forward and argued in defendant's brief, but finding them to be without merit, they too are overruled.\\nNo error.\\nChief Judge Brock and Judge Campbell concur.\"}" \ No newline at end of file diff --git a/nc/8568699.json b/nc/8568699.json new file mode 100644 index 0000000000000000000000000000000000000000..edc2f56ed0acd26f6444748dafd8884195134f24 --- /dev/null +++ b/nc/8568699.json @@ -0,0 +1 @@ +"{\"id\": \"8568699\", \"name\": \"CALVIN T. RICE, Employee v. UWHARRIE COUNCIL BOY SCOUTS OF AMERICA, Employer, and UTICA MUTUAL INSURANCE COMPANY, Carrier\", \"name_abbreviation\": \"Rice v. Uwharrie Council Boy Scouts of America\", \"decision_date\": \"1964-12-16\", \"docket_number\": \"\", \"first_page\": \"204\", \"last_page\": \"208\", \"citations\": \"263 N.C. 204\", \"volume\": \"263\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:43:18.737503+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CALVIN T. RICE, Employee v. UWHARRIE COUNCIL BOY SCOUTS OF AMERICA, Employer, and UTICA MUTUAL INSURANCE COMPANY, Carrier.\", \"head_matter\": \"CALVIN T. RICE, Employee v. UWHARRIE COUNCIL BOY SCOUTS OF AMERICA, Employer, and UTICA MUTUAL INSURANCE COMPANY, Carrier.\\n(Filed 16 December, 1964.)\\n1. Master and Servant \\u00a7 83; Admiralty\\u2014\\nWhere the contract of employment is made in this State, the employer\\u2019s business is in this State, and the contract of employment does not specifically provide for services exclusively outside this State, held, the North Carolina Industrial Commission has jurisdiction of a claim for injury even though it occurs on the high seas provided it arises out of and in the course of employment, G.S. 97-36, since the Longshoremen\\u2019s and Harbor Workers\\u2019 Act is applicable only to injuries arising on navigable waters which may not validly be provided for by State Law. 33 U.S.C.A. 901-950.\\n2. Master and Servant \\u00a7 5\\u00e1\\u2014\\nInjury to a Scout executive by accident while on a fishing trip on the high seas while attending an executive\\u2019s conference arises out of and in the course of his employment when the executive is directed to attend the conference with all expenses paid by the Council, and the Council prepares an agenda of recreational projects, including deep sea fishing, and impliedly requires each executive to select one of the projects as an aid to his advancement and better qualifications to carry on his work in scouting.\\nAppeal by defendants from Giuyn, J., June 1, 1964 Non-Jury Civil Session, Guilfobd Superior Court, Greensboro Division.\\nThis proceeding originated before the North Carolina Industrial Commission upon a compensation claim filed by Calvin T. Rice, employee, against the Uwharrie Council Boy Scouts of America, employer, and Utica Mutual, the insurance carrier.\\nThe parties stipulated that on August 23, 1961, the plaintiff, claimant, and the Council, employer, were subject to, and bound by, the provisions of the North Carolina Workmen\\u2019s Compensation Act; that the employee-employer relationship existed between them; that the Utica Mutual Insurance Company was the insurance carrier. The employer denied, however, that the plaintiff was acting as an employee at the time of his injury on August 22, 1961. The Hearing Commissioner made findings of fact but denied compensation upon the sole ground the evidence showed the injury by accident occurred on the high seas; that the North Carolina Industrial Commission had no jurisdiction of the claim.\\nUpon review, the Full Commission made these findings:\\n\\u201c1. On August 23, 1961, plaintiff was employed by defendant employer as a District Scout Executive and had been so employed for almost three years. Plaintiff was a resident of Lexington, North Carolina, his contract of employment was made in North Carolina, defendant employer had a place of business in North Carolina and plaintiff\\u2019s contract of employment was not expressly for services exclusively outside of North Carolina.\\n\\u201c2. A Scouting Executive Conference was held at Jekyll Island, Georgia, from August 20, 1961, to August 25, 1961. Scouting executives from Region 6, composed of North Carolina, South Carolina, Georgia, Florida and the Panama Canal Zone, attended the conference.\\n\\u201c3. Plaintiff along with other scout executives from the Uwharrie Council attended the conference. Plaintiff\\u2019s travel expense, meals and lodging were paid by defendant employer. Various instructional programs were conducted during the conference. Wednesday afternoon, August 23, 1961, was set aside for recreation such as surf bathing, golf and deep sea fishing.\\n\\u201c4. Plaintiff and other scout executives, including some from Uwharrie Council, elected to go deep sea fishing. The boat departed shortly after noon and went to a place on the ocean over a wrecked ship where it anchored.\\n\\u201c5. A chock for the anchor on the boat pulled loose and struck plaintiff on the right leg below the knee fracturing same. Plaintiff was hospitalized at Brunswick, Georgia from August 23 to September 8 and then in Lexington Memorial Plospital under the care of Dr. Earl W. Shafer. Plaintiff reached the end of the healing period on April 24, 1962, and has 10% permanent loss of use of his right leg. Plaintiff was paid his regular salary while he was out of work from August 23, 1961, to February 1, 1962, and sustained no wage loss.\\n\\u201c6. That plaintiff sustained, as described above, an injury by accident arising out of and in the course of his employment with defendant employer.\\u201d\\nUpon the basis of its findings, the Commission entered an award allowing compensation. Judge Gwyn, of the Superior Court, affirmed the Commission\\u2019s award. The defendants appealed from his judgment.\\nCharles W. Mame for plaintiff appellee.\\nSmith, Moore, Smith, Schell & Hunter by Bynum M. Hunter for defendant appellants.\", \"word_count\": \"1800\", \"char_count\": \"11035\", \"text\": \"Higgins, J.\\nThe evidence fully sustains the findings made by the Full Commission. The defendants contend, however, that No. 6 is a mixed finding of fact and conclusion of law which they may challenge upon the ground (1) the accident occurred on the navigable waters of the United States; and (2) the accident and injury did not arise out of and in the course of the claimant's employment.\\nIn support, the defendants contend the plaintiff's remedy must be under the Longshoremen's and Harbor Workers' Act, 33 U.S.C.A. 901-950. The defendants cite Calbeck v. Travelers Insurance Co., 370 U.S. 114, 8 L. Ed. 2d 368. However, \\u00a7 903 (a) of the Act provides for coverage for injuries on navigable waters, \\\"But only if the disability or death results from an injury arising on the navigable waters of the United States and if recovery . . . through Workmen's Compensation proceedings may not validly be provided by State law.\\\" Unless the remedy under Maritime Law is exclusive, the claimant may proceed under State law. Workmen's Compensation, Vol. 2, Schneider (3rd Ed.) 245. The claimant seeks to assert rights under his contract of employment as an Executive of the Uwharrie Council. The proper forum is the North Carolina Industrial Commission. Johnson v. Lumber Co., 216 N.C. 123, 4 S.E. 2d 334; Carlin Construction Co. v. Heaney, 299 U.S. 541. Hence, if a valid award may be made under the North Carolina Workmen's Compensation Act, we may dismiss from consideration the Longshoremen's Act. Double coverage is not intended. The claim does not arise under Maritime Law, but under an employment contract made in North Carolina by residents of that State. Warren v. Dixon & Christopher Co., 252 N.C. 534, 114 S.E. 2d 250.\\nThe North Carolina Workmen's Compensation Act, G.S. 97-36, after the 1963 Amendment, provides coverage for accidents happening outside this State under the same rules as if the accident happened in this State, provided: (1) the contract of employment was made in this State; (2) the employer's business is in this State; (3) the contract of employment did not expressly provide for services exclusively outside this State. The amendment, Ch. 450, \\u00a7 2, Session Laws of 1963, struck out the requirement that the plaintiff should be a resident of this State. The only question, therefore, is whether the claimant sustained injury by accident arising out of and in the course of his employment as a District Scout Executive, Uwharrie Council Boy Scouts of America.\\nThe evidence discloses the quadrennial conference of the Scout Executives for the States of North Carolina, South Carolina, Georgia, and Florida, and for the Panama Canal Zone was called for August 20-25 to be held at Jekyll Island, Georgia. \\\"A Scout Executives' Conference is the training course for professional scouting.\\\" The claimant was one of four executives of the Uwharrie Council directed to attend and in the words of the Chief Executive Officer of the Council, \\\"Unless a person was ill it was practically compulsory that he be there.\\\" The Uwharrie Council paid the expenses, consisting of transportation, lodging, meals at the Conference and en route. The Council prepared the agenda of the Conference, including recreation or free time activities. The claimant and many others elected to go deep sea fishing. While \\u2022 the claimant appears to have paid his fee of $5.00 for the fishing trip, nevertheless, others in attendance were reimbursed for this expense by the employer. Of this activity, Mr. B. W. Hackney, Jr., Executive of the Uwharrie Council and .claimant's superior officer, testified. \\\"The entire recreation program or free time aspect was discussed at the conference. I discussed it personally with them. As to the instruction or direction I gave the staff members with regard to the recreational activity, in any conference that the staff attends it also behooves me as the Council Executive to point out the value of participation in the social activity that is a part of the conference program. Sometimes we listed it as recreational and sometimes as free time because at those conferences the aspect that is most valuable to these men during this recreation occurs through their meeting other scouting executives who are in the market for personal advancement. While we don't specifically say that you have to take part in this activity or that activity, they are certainly instructed to participate in one of the many that are provided for at any of our conferences that we attend.\\\"\\nMr. Howard T. Smith, District Scout Executive for another Council, was on the fishing trip with claimant. He testified: \\\"The recreational program of the conference was a planned part of the program. As to who planned it, in the bulletins that we have received prior to our attendance it was listed in there from the Regional Office. As to whether I was required to participate in the recreational program, the Council for which I work felt it would be excellent and they stated before we went that we should take part in it.\\\"\\nThe evidence disclosed that Boy Scouts of America has \\\"A fishing merit badge. . As to the part fishing plays in the exploration pro gram of scouting, in the older boys' program they may set up a depot involving nothing but fishing if they so desired. It is left largely to the individual boys.\\\"\\nThe evidence and findings permit the inference the employer impliedly required participation in the scheduled activities, including the fishing trip, not merely for the purpose of furnishing amusement and entertainment for the employee, but as an aid to his advancement and better qualification to carry on his work in scouting. Larsen, in his work on Compensation Law, Vol. 1, \\u00a7 2200, pp. 328-329, says that under such circumstances injuries suffered by employees in recreational activities are compensable. See, also, Perry v. Bakeries Co., 262 N.C. 272, 136 S.E. 2d 643. That case certainly does not conflict with the decision here. Mr. Perry entered the swimming pool entirely on his own after the social hour provided by his employer was over.\\nWe think the evidence and findings based thereon in this case are sufficient to permit the inference that the plaintiff's injury arose out of and in the course of his employment. Cole v. Guilford County, 259 N.C. 724, 131 S.E. 2d 308. The judgment of the Superior Court is\\nAffirmed.\"}" \ No newline at end of file diff --git a/nc/8570216.json b/nc/8570216.json new file mode 100644 index 0000000000000000000000000000000000000000..8def209cfd7eafccbfa886537c7d4e8946f5abf3 --- /dev/null +++ b/nc/8570216.json @@ -0,0 +1 @@ +"{\"id\": \"8570216\", \"name\": \"STATE v. RAY BRYANT\", \"name_abbreviation\": \"State v. Bryant\", \"decision_date\": \"1962-09-19\", \"docket_number\": \"\", \"first_page\": \"674\", \"last_page\": \"674\", \"citations\": \"257 N.C. 674\", \"volume\": \"257\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T21:11:57.002726+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. RAY BRYANT.\", \"head_matter\": \"STATE v. RAY BRYANT.\\n(Filed 19 September 1962.)\\nAppeal by defendant from Fountain, Special Judge, March Term 1962 of CeaveN.\\nThis is a criminal action tried upon a bill of indictment charging the defendant with an assault with a deadly weapon with felonious intent to kill and murder Grover Lancaster, Jr., inflicting serious injuries not resulting in death.\\nThe jury returned a verdict of guilty of assault with a deadly weapon. Judgment was pronounced on the verdict and the defendant appeals, assigning error.\\nAttorney General Bruton, Asst. Attorney General Moody for the State.\\nReginald L. Frazier, Samuel S. Mitchell for the defendant.\", \"word_count\": \"142\", \"char_count\": \"873\", \"text\": \"PER Cueiam.\\nThe evidence adduced by the State in the trial below was sufficient to carry the case to the jury, and the appellant has not shown error sufficiently prejudicial to justify upsetting the verdict of the twelve.\\nNo error.\"}" \ No newline at end of file diff --git a/nc/8570372.json b/nc/8570372.json new file mode 100644 index 0000000000000000000000000000000000000000..324e7ceba9167564043e12e3027f9470069c1b33 --- /dev/null +++ b/nc/8570372.json @@ -0,0 +1 @@ +"{\"id\": \"8570372\", \"name\": \"STATE v. CASS\", \"name_abbreviation\": \"State v. Cass\", \"decision_date\": \"1982-03-30\", \"docket_number\": \"No. 39P82\", \"first_page\": \"396\", \"last_page\": \"396\", \"citations\": \"305 N.C. 396\", \"volume\": \"305\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:52:45.309093+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. CASS\", \"head_matter\": \"STATE v. CASS\\nNo. 39P82.\\nCase below: 55 N.C. App. 291.\", \"word_count\": \"24\", \"char_count\": \"141\", \"text\": \"Petition by defendant for discretionary review under G.S. 7A-31 denied 30 March 1982.\"}" \ No newline at end of file diff --git a/nc/8571128.json b/nc/8571128.json new file mode 100644 index 0000000000000000000000000000000000000000..1fff18e44b3053781482b2b3fb1d6f5b7d3674b1 --- /dev/null +++ b/nc/8571128.json @@ -0,0 +1 @@ +"{\"id\": \"8571128\", \"name\": \"HERMAN J. SCARBOROUGH v. GRADY INGRAM and BOOKER T. INGRAM\", \"name_abbreviation\": \"Scarborough v. Ingram\", \"decision_date\": \"1961-12-13\", \"docket_number\": \"\", \"first_page\": \"87\", \"last_page\": \"91\", \"citations\": \"256 N.C. 87\", \"volume\": \"256\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T22:34:29.035356+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"HERMAN J. SCARBOROUGH v. GRADY INGRAM and BOOKER T. INGRAM.\", \"head_matter\": \"HERMAN J. SCARBOROUGH v. GRADY INGRAM and BOOKER T. INGRAM.\\n(Filed 13 December, 1961.)\\n1. Automobiles \\u00a7 11\\u2014\\nThe violation of the statutory requirements in regard to lighting devices to be used by motor vehicles operating at night constitutes negligence as a matter of law. G.S. 20-129, G.S. 20-129.1.\\n2. Automobiles \\u00a7 8\\u2014\\nIt is negligence for the operator of a motor vehicle to turn left when a reasonably prudent person would realize in the exercise of due care that such movement could not be made in safety under the circumstances. G.S. 20-154(a).\\n3. Automobiles \\u00a7 41h\\u2014\\nEvidence tending to show that defendant was operating his vehicle at night without the lighting devices required by statute and that he attempted to turn left into a driveway at a time when he saw or could have seen the lights of plaintiff\\u2019s vehicle following him so closely that a reasonably prudent person would have realized the turn could not be made in safety, is held sufficient to be submitted to the jury on the issue of negligence.\\n4. Automobiles \\u00a7 42d\\u2014\\nEvidence tending to show that plaintiff was traveling within the statutory maximum speed limit, that defendant\\u2019s truck was traveling ahead of him at night without lighting devices required by statute, that defendant\\u2019s truck had a flat bottom, presenting a minimum area to be picked up by the lights of a following vehicle, and was of dark color, and that plaintiff\\u2019s car struck the rear of defendant\\u2019s vehicle as it slowed and had started to make a left turn into a driveway, is held not to show contributory negligence as a matter of law on the part of plaintiff. G.S. 20-141 (e).\\n5. Automobiles \\u00a7 46; Negligence \\u00a7 28\\u2014\\nThe charge of the court in this case, construed contextually, held not subject to the objection that it required defendant to establish that plaintiff was guilty of each of the alleged negligent acts relied upon as constituting contributory negligence in order to answer that issue in the affirmative.\\nAppeal by defendant Booker T. Ingram from Gwyn, J., May 1961 Term of MONTGOMERY.\\nPlaintiff instituted this action to recover compensation for personal injuries and property damages resulting from a collision between the motor vehicle owned and operated by him and a 1946 Ford truck owned by Grady Ingram, operated by Booker T. Ingram. The collision occurred about 7:45 p.m. on 21 June 1960 on U. S. Highway 220, just north of the southern boundary of Ellerbe. Both vehicles were traveling northwardly.\\nTo support his claim for damages plaintiff alleged these negligent acts of appellant: (1) Operating his motor vehicle on a dark, rainy night without lights. (2) Making a left turn without ascertaining that he could do so with safety to others using the highway. (3) Failure to give any signal of defendant\\u2019s intent to make a left turn. (4) Operation of a motor vehicle in a reckless manner in violation of G.S. 20-140.\\nDefendants denied the collision was due to any negligent act of theirs, and as an additional defense pleaded reckless driving, excessive and unreasonable speed under existing conditions, failure of plaintiff to keep a lookout or control of his vehicle, and inability to stop within the range of plaintiff\\u2019s headlights as contributory negligence barring recovery.\\nMotions of defendants for nonsuit were allowed as to defendant Grady Ingram and overruled as to defendant Booker T. Ingram. Issues of negligence, contributory negligence, and damages were submitted to the jury. It answered the first issue yes, the second, no, and fixed the damages sustained. Judgment was entered on the verdict. Booker T. Ingram (hereafter referred to as defendant) appealed.\\nJones & Jones jor plaintiff appellee.\\nDavid H. Armstrong for defendant appellant.\", \"word_count\": \"1850\", \"char_count\": \"10847\", \"text\": \"Rodman, J.\\nThe first question for determination is the court's ruling on defendant's motion for nonsuit. Defendant asserts the refusal to allow his motion is erroneous for two reasons: (1) Plaintiff failed to offer any evidence of negligence proximately causing plaintiff's injuries, and (2) all the evidence establishes as a matter of law plaintiff's negligence proximately causing the collision and resulting damage.\\nDefendant's evidence suffices to establish these facts: The collision occurred at night in a residential area of a town where the maximum speed limit was 35 m.p.h. Shortly before the collision he had come into Highway 220 from a filling station. He headed north when he came on the highway, traveling 20 to 25 m.p.h. He intended to turn into a private drive on the west side of the highway some 300 yards north of the filling station. It was dark and rainy. The truck was not equipped with rear reflectors required by G.S. 20-129.1 (a). Plaintiff's car was of the compact class.\\nIn addition to the foregoing noncontroverted facts, there is evidence from which the jury could find these additional facts: (1) Defendant's truck not only was not equipped with the reflectors required by statute, but also it did not have in operation the lights required by G.S. 20-129 (a) (d). (2) The truck was dark in color, blending with the darkness of the night. It had a flat body without standards or side boards, presenting a minimum area to be picked up by the lights of an approaching vehicle. (3) Defendant saw or should have seen the lights of plaintiff's car traveling northwardly in the same lane with defendant. (4) Defendant, although intending to make a left turn, had not at the moment of the collision begun to execute his intention or had just begun to execute his intention and was entering the left lane when the collision occurred, or had so far executed his intent as to completely block both lanes of the highway.\\nThe statutes prescribing lighting devices to be used by motor vehicles operating at night (G.S. 20-129 and 129.1) were enacted in the interest of public safety. S. v. Norris, 242 N.C. 47, 86 S.E. 2d 916. A violation of these statutes constitutes negligence as a matter of law. Bridges v. Jackson, 255 N.C. 333; Lyday v. R.R., 253 N.C. 687, 117 S.E. 2d 778.\\nThe jury could find from the evidence that defendant saw the light of plaintiff's car approaching, saw the vehicle was so close to the truck when defendant started to make his left turn that a prudent person would have realized that the turn could not be made in safety. Hence the turn made, or attempted, was within the prohibition of G.S. 20-154(a).\\nThe evidence was sufficient to support a finding that defendant had violated the statutes enacted to promote safety on the highway, proximately causing the collision. This would require submission to the jury unless, as defendant says, all of the evidence establishes plaintiff's contributory negligence as a matter of law.\\nWe must, therefore, determine the question: Does all the evidence lead to the single conclusion that the collision and resulting injuries and damage were proximately caused by plaintiff's negligence? The answer is no. Plaintiff, according to his testimony, was traveling at a speed of 30 m.p.h. after entering Ellerbe. This speed is less than the maximum permissible speed. There was a slight curve in the highway south of the point of collision. The distance from the curve to the point of collision is not shown. Plaintiff testified: \\\"I didn't see the truck. I can't say the distance that I saw it. Yes, I looked. It was right in front of me, and the darkness and the curve, and when the lights picked it up, I was right on it. . . . The reason that I did not see the truck until I got to it was due to the fact that it had no lights on it. My lights were in good order.\\\" The color of defendant's vehicle reduced its visibility on this rainy, dark night, and because of the flat body without standards or side boards the light from plaintiff's automobile would not disclose the truck ahead until close to it.\\nThe law applicable to cases of this character was well stated by Ervin, J., in Chaffin v. Brame, 233 N.C. 377, 64 S.E. 2d 276. That case was decided in 1951. The rule then enunciated was recognized by the Legislature of 1953 as a proper statement of the law when it enacted c. 1145, S.L. 1953, now incorporated in G.S. 20-141 (e). It is there expressly declared \\\"that the failure or inability of a motor vehicle operator who is operating such vehicle within the maximum speed limits prescribed by G.S. 20-141 (b) to stop such vehicle within the radius of the lights thereof or within the range of his vision shall not be considered negligence per se in any civil action . . Plaintiff's testimony and the inferences which can fairly be drawn from the testimony offered by defendant bring plaintiff within the language and meaning of this statutory provision. Unless we ignore the express language of the statute and hold that the mere failure to see an unlighted object on a highway in time to avoid a collision constitutes negligence because conclusively demonstrating the operator either was not keeping the lookout required by statute or was driving at an unreasonable rate of speed, plaintiff is entitled to have his case submitted to the jury. The other facts appearing in the record to which we have called attention tend to negative the assertion that plaintiff failed to act with reasonable prudence. The conclusion here reached is supported by Privette v. Lewis, 255 N.C. 612; Carrigan v. Dover, 251 N.C. 97, 110 S.E. 2d 825; Keener v. Beal, 246 N.C. 247, 98 S.E. 2d 19; Burchette v. Distributing Co., 243 N.C. 120, 90 S.E. 2d 232.\\nThe court charged: \\\"(You will bear in mind the evidence in its entirety. You will bear in mind the law which relates to that issue. With all that in mind, you are instructed upon the second issue that if the defendant has satisfied you from the evidence and by its greater weight that the plaintiff was negligent in the operation of his automobile, and has further satisfied you from the evidence and by its greater weight that such negligence on his part was the proximate cause or one of the proximate causes of his injury and damage, as alleged in the answer, then it will be your duty to answer that second issue YES. If the defendant has failed to so satisfy you, it will be your duty to answer that second issue NO.)\\\" Defendant excepted to the foregoing, contending the court thereby required him to establish each of the eight alleged negligent acts of plaintiff before the jury could answer the issue of contributory negligence yes. If the charge was fairly susceptible to such an interpretation, defendant would be entitled to a new trial; but the quoted portion is not of itself fairly susceptible to such an interpretation, and when the charge is read as a whole, we cannot conceive that the jury placed such an interpretation on the language used.\\nWe have examined each of the remaining thirty-five assignments of error but find nothing warranting a new trial or requiring discussion.\\nNo error.\"}" \ No newline at end of file diff --git a/nc/8572247.json b/nc/8572247.json new file mode 100644 index 0000000000000000000000000000000000000000..b025fbac5040aaf41a824f952956f398e1a9dce8 --- /dev/null +++ b/nc/8572247.json @@ -0,0 +1 @@ +"{\"id\": \"8572247\", \"name\": \"JAMES EDWARD TEELE v. CLAYBORNE K. KERR and LUTHER W. KERR\", \"name_abbreviation\": \"Teele v. Kerr\", \"decision_date\": \"1964-01-17\", \"docket_number\": \"\", \"first_page\": \"148\", \"last_page\": \"152\", \"citations\": \"261 N.C. 148\", \"volume\": \"261\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T01:12:56.185952+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JAMES EDWARD TEELE v. CLAYBORNE K. KERR and LUTHER W. KERR.\", \"head_matter\": \"JAMES EDWARD TEELE v. CLAYBORNE K. KERR and LUTHER W. KERR.\\n(Filed 17 January 1964.)\\n1. Limitation of Actions \\u00a7 18\\u2014\\nWhere all of the relevant facts are admitted, -the question .of the bar of a prop-erly pleaded statute -of limitations is a question of ia-w.\\n2. Judgments \\u00a7 43\\u2014\\nThe cause -of action is merged in the judgment rendered therein, and the judgment is -a debt of record so that an aetio-n on -the judgment is a new action on-a debt separate and distinct fr-o-rn the original cause of action.\\n3. Guardian and Ward \\u00a7 3; Infants \\u00a7\\u00a7 5, 6\\u2014\\n. The powers -of a in-ext friend or a guardian ad litem, as distinguished from a -general guardian, are -coterminous with -the beginning and ending of the prosecution of the particular suit in which he is appointed so that -the -entry of judgment renders him funetus officio, and -he is not authorized to receive payment -of the judgment for the minor. G.S. 1-64.\\n4. Judgments \\u00a7\\u25a0 43\\u2014\\nWhere judgment is recovered in favor -of an -infant -in an action brought -by -the next friend, the infant having no general guardian, the ten year limitation on an action on the judgment, G.S. 1-47(1), -begins to- run when the. infant reaches his majority. G.S. 1-17.\\n. Appeal by. defendant, Clafybo-m-e K. Kerr, from Carr, J.; M'arcihT963 Civil Sessioni .of DURHAM.\\nAction to renew a judgment.\\nThese facts are either stipulated or established by the record proper: Plaintiff wais bom on October 25, 1938 in Durham County. He was struck by an. automobile 'driven 'by the defendant on March 13, 1946 when he was seven years old. Thereafter, .on August 25, 1947, the Clerk of the Superior Court of Durham County duly appointed plaintiff\\u2019is father, James Henry Teele, as his next .friend to bring an action \\u25a0against the defendant to recover for plaintiff\\u2019s personal injuries. He instituted the action on the same day. At the April 1948 Civil Term of the Superior Court of Durham County a judgment was rendered in favor of the plaintiff and against the defendant Claybome K. Kerr in ibhe amount of $1,177.83. This judgment was docketed on April 19, 1948 when the plaintiff was nine years old. No part of this judgment has ever been paid. On October 25, 1959 plaintiff attained ihiis majority. On February 28, 1962 he instituted this action to renew the judgment. By answer, the defendant plead the ten-year statute of limitations, G.S. 1-47(1), in bar of plaintiff\\u2019is right to maintain the action. Upon the trial the jury found that the plaintiff\\u2019s action was not barred by the statute of limitations and that defendant was indebted to the plaintiff in the amount of $1,177.83 with interest from April 19,1948. From judgment entered on the verdict, defendant Clay-borne K. Kerr appealed.\\nBryant, Lipton, Bryant \\u2022& Battle for plaintiff appellee.\\nBlackwell M. Brogderi for Claybome K. Kerr defendant appellant.\", \"word_count\": \"2019\", \"char_count\": \"11502\", \"text\": \"Sharp, J.\\nWhere the statute of limitations is properly pleaded, and all the facts with reference to it -are admitted, the question whether it constitutes a bar 'becomes a matter of law. Mobley v. Broome, 248 N.C. 54, 102 S.E. 2d 407. This appeal presents one question: Does the statute limiting the time to bring an action on a judgment to ten years from the date of its rendition, -be'gin to .run' as against an infant where the judgment was procured on his behalf by a next friend appointed for that purpose? If the \\u00a1answer to this question is NO, G.S. 1-17 would permit the plaintiff to- \\u00a1bring an action on the judgment secured when \\u00a1he was nine years old within the time limited by- G.S. 1-47 (1), -i.e., ten years, after be became twenty-one years old.\\nTo answer this question we must first consider the nature of an action upon a judgment. \\\"When \\u00a1a judgment is obtained, the precedent cause of action is merged into and extinguished 'by the judgment.' 2 Black, Judgm. \\u00a7 674, 675, 677; Freem. Judgm. \\u00a7 215-,-216. The judgment'is a debt of record, \\u2014 a new cause of action, \\u2014 upon.wliich. a new suit may be maintained.\\\" Williams v. Merritt, 109 Ga. 213, 34 S.E. 312.\\nIn Reid v. Bristol, 241 N.C. 699, 86 S.E. 2d 417, it was pointed out iby Bobbitt, J. that in this State, since 1866, if not before, the only way to secure a judgment on a judgment was by an independent action commenced as is every action to (recover judgment on a debt. Hence the suit instituted by plaintiff ion February 28,1962 on the judgment was a new action on a debt; it was separate and distinct from the personal injury suit in which it had (been obtained on April 19, 1948.\\nThe next question is whether the authority .and duties of a next friend terminate when he reduces plaintiff's claim to. judgment or whether his authority continues to collect the judgment and to bring am action on it for that purpose if necessary. If the authority of a next friend terminates with the judgment, plaintiff may maintain this action; if, 'however, it continues, he may not. Rowland v. Beauchamp, 253 N.C. 231, 116 S.E. 2d 720.\\nIt is the rule in North Carolina that, except in suits for realty where the legal title is in the ward, the statute of limitations begins to run against an infant who is represented by a general guardian as to any action which the guardian could or should bring, at the t\\u00fane the cause of action \\u00a1accrues. If he has no guardian \\u00a1at that time, the statute begins to .run upon the \\u00a1appointment of >a guardian or upon the removal of his disability as provided in G.S. 1-17 whichever occurs first. Trust Co. v. Willis, 257 N.C. 59, 125 S.E. 2d 359.\\nThere is, (however, a vast difference between the authority of a general guardian and a next friend. A .guardi\\u00e1n is authorized by G.S. 30-20 to take possession of all his estate for the use of his ward and to 'bring all necessary actions therefor. G.S. 1-64 merely authorizes infant plaintiffs without a general guardian to appear by their next friend when it is necessary for them to prosecute an action. The power of a next friend is \\u00a1strictly limited to the performance of the precise duty imposed upon him by the order \\u00a1appointing him, that is, the prosecution of the particular action in which he was appointed. It is his duty to represent the infant, see that the witnesses are present \\u00a1at the trial of the infant's case, .and to do .all things which are required to secure a judgment favorable to the infant. Roberts v. Vaughn, 142 Term. 361, 219 S.W. 1034, 9 A.L.R. 1528. When he has done that, his \\u00a1authority in the suit is at \\u00a1an end unless some attack should be made upon the judgment \\u00a1by motion in the cause.\\nIn the absence \\u00a1of a .special statute .it is the general rule that the next friend of an infant \\u00a1has no authority to receive payment of the judgment he hais secured for the infant. \\\"Either or \\u00a1both of two\\u00a1 reasons are given for this rule. First, the \\u00a1duties of the next friend or guardian ad litem are coterminous with the \\u00a1beginning -and end of the prosecution of the suit, iso that upon entry of final judgment he has no further interest dm the case. Second, payment to the next friend or guardian ad litem anight result in the loos of the benefit of the recovery, since a 'bond is not ordinarily required of 'him in prosecuting the action.\\\" 27 Am. Jur., Infants \\u00a7 134; Paskewie v. East St. L. & S. Ry. Co., 281 Ill. 385, 117 N.E. 1035, L.R.A. 1918 C. 52. Under our statutes only the 'derk or the legal guardian of an infant has authority to receive payment 'and satisfy a judgment rendered in favor of an infant. G.S. 1-39. See Tate v. Mott, 96 N.C. 19, 2 S.E. 176. In practice, the defendant pays the judgment to the Clerk of the Superior Court who holds the funds until the minor becomes twenty-one or until a general guardian is appointed for \\u00a1him unless the sum is $1,000.00 or less when he miay disburse it himself under the terms of G.S. 2-53.\\nThe status, function, \\u00a1and authority of a next friend of \\u00a1a minor were reviewed in Johnston County v. Ellis, 226 N.C. 268, 38 S.E. 2d 31. In that case E. was appointed next friend to act for his minor brothers and rasters, movants in a tax foreclosure action to iset aside a tax foreclosure. Thereafter the mortgagee also intervened and filed a similar motion. A judgment was entered setting -aside -all orders and decrees made in the ease as well as the deed to the purchaser. Ten months later, without notice to the next friend, the Clerk -of the Superior Court determined -the amount due on the mortgage, entered judgment for it against the owners of the land, including the minors, -and appointed a commissioner to sell the land under the mortgage. Approximately ten years -later the minors, having -become of age, moved to set aside this judgment and the sale made -under it. The Superior Court denied the motion; the Supreme Court reversed, saying:\\n\\\"A next friend is not an all-time and all-purpose representative through whose -action or failure to act his infant suitors may -be bound by orders and judgments which have no connection with the purpose of his appointment, or the rights of the minors which by virtue of such appointment it is hiis office to assert. The scope of his representation lies within and is determined by that purpose, the necessities of its prosecution and the procedure reasonably incident thereto. In 27 Am. Jur., .p. 839, sec. 118, is a summarized expression of the law as we -conceive it to be here: 'The next friend has full power to act for the purpose of securing the infant's rights, and may do all things that are necessary to this end, although hi-s -power is strictly limited to the .performance of the precise duty imposed upon him iby laiw.' Roberts v. Vaughn, 142 Tenn., 316, 219 S.W., 1034, 9 A.L.R., 1528. No doubt in the assertion \\u00a1of \\u00a1such \\u00a1right the next fri'endi may have to defend against incidental or opposing rights, such as offsets, counterclaims, or other defenses or demands connected with the original claim.\\n\\\"The next friend came into' the tax suit for the purpose of making a motion to set aside a judgment and 'annulling a deed in the tax \\u00a1suit, in which the minors were admittedly equitable owners of the proper,ty and at the time unrepresented. His appointment did not require him to defend against the 'foreclosure suit thrust into this proceeding in the manner stated, and his representation of the minors in that matter did not legally exist.\\n\\\"Moreover, the record discloses that Ellis had \\u00a1successfully accomplished his mission as next friend, performed all the duty imposed upon him by law, \\u00a1and his office as next friend had become functus officio. If the holder of the mortgage desired to foreclose, it was necessary to do so in an orderly proceeding, instituted for that purpose, and to secure the appointment of a guardian ad litem to defend the owners of the equitable estate.\\\"\\nThe reasoning of the language quoted above is applicable to this case. We hold that the .authority of plaintiff's next friend in the personal injury case 'ended on April 19, 1948 'and that this suit, instituted on the judgment obtained in the former action, is a neiw -and independent action. The plaintiff, having instituted it within ten years after reaching his majority, is entitled to maintain it.\\nThis holding does not impinge upon any statement in Rowland v. Beauchamp, supra, as defendant contends. Rowland involved a question of the application of the \\u00a1statute of limitations to the specific action wihiich the next friend was appointed by the court to bring. The instant case is a new -and independent action; hence, Rowland is inapplicable.\\nThe judgment of the lower court is\\nAffirmed.\"}" \ No newline at end of file diff --git a/nc/8573179.json b/nc/8573179.json new file mode 100644 index 0000000000000000000000000000000000000000..acca66192174fea72bf65d0501660e67119e7157 --- /dev/null +++ b/nc/8573179.json @@ -0,0 +1 @@ +"{\"id\": \"8573179\", \"name\": \"STATE OF NORTH CAROLINA v. KENNETH R. GREENWOOD\", \"name_abbreviation\": \"State v. Greenwood\", \"decision_date\": \"1972-03-15\", \"docket_number\": \"No. 14\", \"first_page\": \"651\", \"last_page\": \"659\", \"citations\": \"280 N.C. 651\", \"volume\": \"280\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:00:02.962299+00:00\", \"provenance\": \"CAP\", \"judges\": \"Justice Lake concurs in results.\", \"parties\": \"STATE OF NORTH CAROLINA v. KENNETH R. GREENWOOD\", \"head_matter\": \"STATE OF NORTH CAROLINA v. KENNETH R. GREENWOOD\\nNo. 14\\n(Filed 15 March 1972)\\n1. Municipal Corporations \\u00a7 32\\u2014 regulation of billiard and dance halls \\u2014 abatement of nuisances\\nA municipal corporation may by ordinance license and regulate the operation of pool and billiard rooms and dance halls, G.S. 160A-181; subject to constitutional limitations, it may by ordinance define and abate nuisances. G.S. 160A-174(a).\\n2. Evidence \\u00a7 1\\u2014 judicial notice \\u2014 municipal ordinance\\nThe courts of this State will not take judicial notice of a municipal ordinance.\\n3. Constitutional Law \\u00a7 20\\u2014 equal protection \\u2014 legislative classifications\\nThe equal protection clauses of the United States and North Carolina Constitutions impose upon law-making bodies the requirement that any legislative classification be based on differences that are reasonably related to the purposes of the act in which it is found.\\n4. Constitutional Law \\u00a7 20; Municipal Corporations \\u00a7 32\\u2014 Sunday closing ordinances \\u2014 equal protection\\nSunday closing legislation, like other legislation, may not discriminate arbitrarily either as between persons, or groups of persons, or as between activities which are prohibited and those which are permitted.\\n5. Constitutional Law \\u00a7 20\\u2014 equal protection \\u2014 classifications\\nThe equal protection clauses do not require perfection in respect of classification, and in borderline cases, the legislative determination is entitled to great weight.\\n6. Constitutional Law \\u00a7 20; Municipal Corporations \\u00a7 32\\u2014 ordinance prohibiting operation of billiard hall on Sunday \\u2014 violation of equal protection\\nA municipal ordinance prohibiting the operation of a billiard hall \\u201cat any time on Sunday\\u201d violates the equal protection clauses of the United States and North Carolina Constitutions, since the operation of billiard halls on Sunday does not constitute an interference with the peace and quiet of that day in a manner or to an extent substantially different from the operation of other sporting or recreational facilities.\\nJustice Lake concurs in result.\\nAppeal by defendant under G.S. 7A-30(1) from the decision of the Court of Appeals reported in 12 N.C. App. 584, 184 S.E. 2d 386.\\nThis criminal action was commenced in the District Court Division, Buncombe County, by a warrant based on an affidavit which alleged that, on or about December 13, 1970, defendant \\u201cdid unlawfully, wilfully, Operate as an employee of the Family Recreation Center, a licensee, at 85 Tunnel Road on Sunday The said family Recreation Center being a Billiard Hall consisting of 16 billiard tables in violation of City Ordance [sic] Chapter 7 Section 7-7.\\u201d\\nThe portion of the ordinance referred to in the warrant is set out in the record as follows:\\n\\u201cSec. 7-7. Operation Between Certain Hours and on Sunday Prohibited.\\nIt shall be unlawful for any billiard hall licensee or his employee to keep such billiard hall open or to operate the same between the hours of 12:00 midnight and 8:00 a.m., or at any time on Sunday. (Code 1945, \\u00a7 185).\\u201d\\nThe cause came on for hearing before District Court Judge Winner on December 22, 1970, on defendant\\u2019s (oral) motion to quash the warrant on the ground that it was based on an unconstitutional ordinance. No evidence was offered. Briefs and oral arguments were submitted. Judge Winner considered and answered four specific questions, presumably those raised by defendant as grounds for his motion to quash.\\nAnswering Question I, Judge Winner held that the ordinance came within the provisions of G.S. 160-200(33) and that Asheville had \\u201cthe power to pass a constitutional ordinance in this area.\\u201d Answering Question II, he held \\u201cthat the regulations of businesses, in the area [in which] they may operate, is within the police power vested in the states, and . . . the ordinance is not unconstitutional for that reason.\\u201d Answering Question III, he held \\u201cit is not a denial of freedom of religion to prohibit businesses from opening on Sunday and . . . this ordinance is not unconstitutional for that reason.\\u201d Question IV and Judge Winner\\u2019s answer thereto are quoted in full below.\\n\\u201cQuestion IV: Is the ordinance unconstitutional in that it is a denial of equal protection of the laws, as granted by the Fourteenth Amendment of the United States Constitution? It has been held that statutes may be passed as long as they are not class legislation and are not made to apply arbitrarily to certain persons or classes or to make unreasonable discrimination between persons or classes. It is the opinion of the court that to make a distinction between billiard parlors and other forms of sporting activities for which one must pay a rental for the use of premises, is both unreasonable and arbitrary and it does create a discrimination between businesses of the same type or class with no apparent reason for the discrimination. This court cannot find any reasonable distinction between the operation of billiard halls and the operation of bowling alleys, snooker parlors, golf courses or tennis courts. In this day and time, there is nothing inherent in the playing of billiards, which distinguishes it from any of the above mentioned sports. It is therefore the opinion of this court that the ordinance named does deny the defendant the equal protection of the laws, and it is therefore unconstitutional.\\u201d\\nHolding the ordinance denied to defendant the equal protection of the laws, Judge Winner quashed the warrant and dismissed the action.\\nAn appeal by the State from Judge Winner\\u2019s judgment was heard at the January 25, 1971 Criminal Session of the Superior Court of Buncombe County by Ervin, J., who affirmed Judge Winner\\u2019s judgment. On the State\\u2019s appeal therefrom, Judge Ervin\\u2019s judgment was reversed by the Court of Appeals. Defendant appeals to this Court as of right under G.S. 7A-80(1).\\nAttorney General Morgan and Associate Attorney General Baxter for the State.\\nTJzzell & DuMont, by Harry DuMont and Ervin L. Ball, Jr., for defendant appellant.\", \"word_count\": \"2718\", \"char_count\": \"17022\", \"text\": \"BOBBITT, Chief Justice.\\nRejecting defendant's contention to the contrary, the Court of Appeals upheld the State's right of appeal from Judge Ervin's judgment. In this respect, the decision of the Court of Appeals is affirmed for the reasons well and fully stated in the opinion of Chief Judge Mallard.\\nG.S. 160-200(33), Vol. 3D, Replacement 1964, authorized the legislative body of a municipal corporation \\\"[t]o license, prohibit, and regulate pool and billiard rooms and dance halls, and in the interest of public morals provide for the revocation of such licenses.\\\" The quoted statutory provision was repealed by Chapter 698 of the Session Laws of 1971, effective January 1, 1972. However, the section of the 1971 Act designated G.S. 160A-174(a) provides: \\\"A city may by ordinance define, prohibit, regulate, or abate acts, omissions, or conditions detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the city, and may define and abate nuisances.\\\" Yol. 3D, 1971 Cumulative Supplement. G.S. 160A-181 in part provides: \\\"A city may by ordinance regulate places of amusement and entertainment, and may regulate, restrict or prohibit the operation of pool and billiard halls, dance halls, carnivals, circuses, or any itinerant show or exhibition of any kind.\\\" However, \\\" [a] city ordinance shall be consistent with the Constitution and laws of North Carolina and of the United States.\\\" G.S. 160A-174(b).\\nUnquestionably, Asheville may by ordinance license and regulate the operation of pool and billiard rooms and dance halls. Subject to constitutional limitations, it may by ordinance \\\"define and abate nuisances.\\\" As to this, Judge Winner, Judge Ervin and the Court of Appeals are in accord.\\nThe subject ordinance is violated if a billiard hall licensee opens or operates his business \\\"between the hours of 12:00 midnight and 8:00 a.m., or at any time on Sunday.\\\" The ordinance provision on which this prosecution is based does not purport to regulate in any respect the manner in which a billiard hall is operated; it prohibits the operation thereof in any manner on Sunday and during specified hours on other days. The warrant charges that defendant, a billiard hall licensee, operated his place of business on a specified Sunday. Since there is no allegation that this operation occurred between the hours of 12:00 midnight and 8:00 a.m., the constitutional question here presented relates to the portion of the ordinance which absolutely prohibits the opening and operation \\\"at any time on Sunday\\\" of a business otherwise recognized as legitimate. The constitutionality thereof depends upon whether the absolute prohibition on Sunday of the one business of operating billiard halls by licensed operators in a lawful manner denies to defendant the equal protection of the laws guaranteed by Article I, \\u00a7 19, of the Constitution of North Carolina, and by the Fourteenth Amendment to the Constitution of the United States.\\n\\\"A valid ordinance must be shown or the prosecution necessarily fails.\\\" State v. Prevo, 178 N.C. 740, 742, 101 S.E. 370, 371 (1919). Accord: State v. Abernethy, 190 N.C. 768, 772, 130 S.E. 619, 621 (1925); State v. McGraw, 249 N.C. 205, 206, 105 S.E. 2d 659, 661 (1958).\\nThis prosecution is based solely on the ordinance provision (\\\"Sec. 7-7\\\") quoted in our statement of facts. As stated by Justice (later Chief Justice) Parker in Surplus Co. v. Pleasants, 263 N.C. 587, 591, 139 S.E. 2d 892, 895 (1965): \\\"This Court has consistently held that our courts of general jurisdiction and the Supreme Court will not take judicial notice of a municipal ordinance.\\\" This statement is fully supported by the cited texts and decisions.\\nUpon oral argument, it was stated without contradiction that Asheville has no general Sunday closing ordinance. Be that as it may, no other ordinance was offered in evidence or placed before us pursuant to stipulation. The validity of the ordinance provision under consideration must be determined solely on the basis of its own terms.\\nThe equal protection clauses of the United States and North Carolina Constitutions impose upon law-making bodies the requirement that any legislative classification \\\"be based on differences that are reasonably related to the purposes of the Act in which it is found.\\\" Morey v. Doud, 354 U.S. 457, 465, 1 L.Ed. 2d 1485, 1491, 77 S.Ct. 1344, 1350 (1957). \\\"The general rule is that the enactment of Sunday regulations is a legitimate exercise of the police power, and that the classification on which a Sunday law is based is within the discretion of the legislative branch of the government or within the discretion of the governing body of a municipality clothed with power to enact and enforce ordinances for the observance of Sunday, and will be upheld, provided the classification is founded upon reasonable distinctions, affects all persons similarly situated or engaged in the same business without discrimination, and has some reasonable relation to the public peace, welfare and safety.\\\" (Our italics.) Clark's Charlotte, Inc. v. Hunter, 261 N.C. 222, 229, 134 S.E. 2d 364, 369 (1964).\\nIn determining whether a Sunday ban on the operation of billiard halls1, but on no other businesses which provide facilities and opportunities for recreation, amusements and sports, denies equal protection to the operators of billiard halls, consideration must be given (1) to the purpose of the ordinance, and (2) to the classification involved.\\nThe validity of a Sunday closing statute or ordinance depends \\\"upon its reasonable relation to the accomplishment of the State's legitimate objective, which, in this instance, is the promotion of the public health, safety, morals and welfare by the establishment of a day of rest and relaxation. Legislation for this purpose, like other legislation, may not discriminate arbitrarily either as between persons1, or groups of persons, or as between activities which are prohibited and those which are permitted.\\\" Mobile Home Sales v. Tomlinson, 276 N.C. 661, 666-67, 174 S.E. 2d 542, 546 (1970). Assuming Asheville's objective was to promote Sunday as a day of rest, tranquillity and relaxation, the subject ordinance provision does nothing to accomplish that objective except prohibit the operation of billiard halls.\\nThe crucial question is whether, in relation to the purpose of the ordinance, there is a rational basis for placing billiard halls in a unique class, separate and apart from all other businesses which offer facilities and opportunities for recreation, sports and amusements. An affirmative answer would require that we hold that the operation of billiard halls on Sunday constitutes an interference with the peace and quiet of that day in a manner or to an extent substantially different from the operation of other sporting or recreational facilities. To so hold would require us to disregard plain facts. Bowling alleys, dance halls, skating rinks, swimming pools, amusement parks, spectator games and sports, and similar businesses, no less than billiard halls, are potential gathering places for idlers and trouble-makers and potential centers for boisterousness, immorality and crime. However, all are facilities for wholesome recreation. In terms of the purpose of the ordinance all are within the same classification.\\nMunicipal ordinances which prohibit generally all sales of merchandise on Sunday with specific exceptions have been upheld in Charles Stores v. Tucker, 263 N.C. 710, 140 S.E. 2d 370 (1965); Clark's v. West, 268 N.C. 527, 151 S.E. 2d 5 (1966); Kresge Co. v. Tomlinson, 275 N.C. 1, 165 S.E. 2d 236 (1969); Mobile Home Sales v. Tomlinson, supra; Kresge Co. v. Davis, 277 N.C. 654, 178 S.E. 2d 382 (1971). Municipal ordinances which prohibit generally all businesses on Sunday with specific exceptions have been upheld in State v. Trantham, 230 N.C. 641, 55 S.E. 2d 198 (1949); State v. McGee, 237 N.C. 633, 75 S.E. 2d 783 (1953); State v. Towery, 239 N.C. 274, 79 S.E. 2d 513 (1954); Clark's Charlotte, Inc. v. Hunter, supra. The issue of whether there was a rational and nondiscriminatory basis for the exceptions to the general prohibitions was involved in these cases.\\nIn Surplus Store, Inc. v. Hunter, 257 N.C. 206, 125 S.E. 2d 764 (1962), the statute under consideration prohibited Sunday sales, at retail, of specified articles of merchandise, but excepted \\\"novelties, toys, souvenirs, and articles necessary for making repairs and performing services.\\\" The provision purporting to identify excepted articles was held \\\"so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.\\\" Id. at 218, 125 S.E. 2d at 769. The statute was held unconstitutional on the ground of uncertainty as to what merchandise was affected by the prohibition. Hence, there was no basis for considering whether there was a rational and nondiscriminatory basis for the specific prohibitions.\\nThe equal protection clauses do not require perfection in respect of classifications. In borderline cases, the legislative determination is entitled to great weight. However, this is not a borderline case. The Sunday closing ordinance here involved singles out and bans one particular business but permits others which provide facilities for recreation, sports and amusements, and potentionally are equally disruptive.\\nAlthough different factually, decisions based on cognate legal principles include the following: In State v. Smith, 265 N.C. 173, 143 S.E. 2d 293 (1965), a Forsyth County resolution which closed \\\"clubs\\\" located within three hundred yards of a church or school between 2:00 a.m. and 12:00 midnight on Sunday, was held to be arbitrary and unreasonable. In Cheek v. City of Charlotte, 273 N.C. 293, 160 S.E. 2d 18 (1968), an ordinance which strictly regulated \\\"massage parlors, health salons, or physical culture studios\\\" but excepted barber shops, beauty parlors, and Y.M.C.A. and Y.W.C.A. health clubs, was held to violate equal protection. In State v. Glidden Co., 228 N.C. 664, 46 S.E. 2d 860 (1948), a statute (G.S. 113-172) which proscribed the emptying of deleterious substances into the waters of the State, but exempted corporations chartered before 1915, was held \\\"to mechanically split into two groups persons in like situation with regard to the subject matter dealt with\\\" and therefore to be unconstitutional.\\nIn its appeal from Judge Ervin's judgment, the State did not draw into focus, and the opinion of the Court of Appeals did not discuss, the Sunday closing feature of the ordinance provision. However, on his appeal from the Court of Appeals, defendant emphasizes this feature both by brief and on oral argument.\\nSince the ordinance provision prohibiting the operation of billiard halls on Sunday violates the equal protection clauses, defendant's motion to quash was properly allowed. Hence, the judgment of the Court of Appeals is reversed; and the cause is remanded to the Court of Appeals with direction to enter a judgment affirming the judgment of Judge Ervin.\\nReversed.\\nJustice Lake concurs in results.\"}" \ No newline at end of file diff --git a/nc/8575226.json b/nc/8575226.json new file mode 100644 index 0000000000000000000000000000000000000000..6563806836661fbc67f5421dbc22c1dcc154749e --- /dev/null +++ b/nc/8575226.json @@ -0,0 +1 @@ +"{\"id\": \"8575226\", \"name\": \"J. A. SHINGLETON v. STATE OF NORTH CAROLINA and NORTH CAROLINA WILDLIFE RESOURCES COMMISSION\", \"name_abbreviation\": \"Shingleton v. State\", \"decision_date\": \"1963-11-20\", \"docket_number\": \"\", \"first_page\": \"451\", \"last_page\": \"459\", \"citations\": \"260 N.C. 451\", \"volume\": \"260\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T17:27:42.020566+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. A. SHINGLETON v. STATE OF NORTH CAROLINA and NORTH CAROLINA WILDLIFE RESOURCES COMMISSION.\", \"head_matter\": \"J. A. SHINGLETON v. STATE OF NORTH CAROLINA and NORTH CAROLINA WILDLIFE RESOURCES COMMISSION.\\n(Filed 20 November 1963.)\\n1. Easements \\u00a7 1\\u2014\\nAn easement appurtenant is incident to and exists only in connection with a dominant estate owned by the same person, and passes with the title to the dominant estate; an easement in gross is a mere personal interest or right to use the land of another, is not appurtenant to any estate and attaches only to the person, and ends with the death of the owner of the easement.\\n2. Same\\u2014\\nWhether a deed creates an easement appurtenant or in gross must be determined by a construction of the language of the contract to ascertain ,the intention of the parties aided, if necessary, by the situation of the parties and the surrounding circumstances, and an easement which in its nature is appropriate and a useful adjunct of land owned by the grantee of the easement, in the absence of a \\u00a1showing that 'the parties intended a mere personal right, will be declared \\u00a1an easement appurtenant, regardless of the form in which such intention is expressed.\\n3. Same\\u2014\\nThe fact that \\u00a1the words \\u201cheirs and assigns\\u201d are not entered after the name of the grantee of an easement is not controlling in determining whether the easement granted is an easement appurtenant or in gross. G.S. 39-1.\\n4. Same\\u2014 Deed held to convey easement appurtenant and not merely in gross.\\nSuit involving dispute between plaintiff and the Wildlife Resources Commission in regard to the ownership of certain lands was settled by an \\u25a0agreement under which plaintiff: conveyed bo 'tine State a portion of the land in dispute and tlie State conveyed to plaintiff a portion, and thereafter a consent judgment was entered reciting generally the execution and delivery of the deeds, tihe payment of a sum of money by the \\u00a9bate in settlement, and \\u2018the action wias dismissed. The '.State\\u2019s conveyance was by quitclaim deed to plaintiff, Ms heirs and assigns and, -after the description, provided that the 'State reserved 'the right to use the roads existing on tibe tract conveyed and that plaintiff was granted the right to use roads existing on the other lands of the Commission for the purpose of ingress and egress by the most direct route. Held: The easement granted was an easement appurtenant and not in gross.\\n5. Easements \\u00a7 8\\u2014\\nAn easement will ordinarily foe construed to embrace all uses which are treasonably necessary iamd convenient in connection with the enjoyment of the dominant estate not only for those purposes to which it is devoted at the time of the grant but also- those \\u2018bo -which it may thereafter be reasonably devoted, without unnecessarily burdening the servient estate.\\n6. Same\\u2014\\nThe grant of am easement 'appurtenant for ingress and egress to lands owned by ithe grantee, in the absence of a showing that -the lands of the grantee were used for business purposes, does not embrace the right of ingress a-nd egress by the public generally, but only to the grantee, his agents, servants, employees and licensees, and it is no violation of the grantee\\u2019s rights that he be required to give permission to those who use the easement in connection with the use and enjoyment of the dominant estate.\\n7. Easement \\u00a7 6; State \\u00a7 4\\u2014\\nI-n an action under the Declaratory Judgment Act to construe an easement granted by -the [State, judgment may not be entered enjoining the -State and its employees from interfering with the easement as defined by the court, since no action may foe maintained against the State or any agency thereof in tort or to restrain the commission of a tort.\\n8. State \\u00a7 4; Public Officers \\u00a7 9\\u2014\\nA public officer, even -though he assumes to act under the -authority and pursuant to the direction of the State, may be held personally liable by an individual whose rights are invaded by such officer in disregard of laiw.\\n9. State \\u00a7 4; Courts \\u00a7 3\\u2014\\nControversy between an individual and the -State as to the extent of an .easement granted to the individual by the -State may be made the basis of a suit against the 'State in the 'Superior Court under -the Declaratory Judgment Act, since such suit involves title to realty within the purview of G.S. 41-10.1.\\nAppeal by defendants from Parker, J., April-May 1963 Session of Pender.\\nAction to construe the easement provisions of a deed under the Declaratory Judgment Act, G.S., Oh. 1, Art. 26.\\nIsaac C. Wright and George Rountree, Jr., for plaintiff..\\nAttorney General Brid\\u00f3n (by Parks H. Icenhour, Real Property Attorney); Corbett & Fisler; and White and Ay cock for defendants.\", \"word_count\": \"3777\", \"char_count\": \"22265\", \"text\": \"MooRE, J.\\nThe State of North Carolina owns a large .body of land in Pender County, known as the Holly Shelter Wildlife Area. It is managed ,by the North Carolina Wildlife Resource\\u00ae Commission. No public roads or highway\\u00ae adjoin or oros\\u00ae any portion of the Wildlife Area involved in this action. The roads within the area are owned by defendants and used in connection with wildlife management.\\nThere was a dispute between defendants and plaintiff Slhingleton with respect to- the ownership and location of certain land\\u00ae- within the boundaries of the Area. A suit was instituted, but before trial a compromise settlement was reached. Pursuant to the compromise agreement, .plaintiff herein conveyed to the State a portion of the land -in dispute 'and the State deeded to Shingleiton a portion. After these deeds were executed and delivered, a consent judgment wias entered reciting generally the execution and delivery of the deeds, the payment of a sum of money by the State, and the satisfactory settlement of the matter\\u00ae in controversy, and the action was dismissed.\\nThe said conveyance by the State to plaintiff herein was by quitclaim deed. It-conveyed to J. A. Shinigleton and \\\"this heirs and assigns\\\" 110 acres situate in Topsail Township, Pender County. This land is described by metes and bound's, and lies entirely within, and a considerable distance from, the boundaries of (the Wildlife Area. Immediately below \\u00a1the description are the following easement provisions:\\n\\\"The party of the first part reserves from this conveyance the right to maintain and use the roiads existing on the above described lands; and the said J. A. Slhingleton is hereby granted the right to- use the roads existing on otiher lands of the Wildlife Resource\\u00ae Commission for the purpose of ingreeis and egress to .and from \\u00a1the above described lands by the moat direct route.\\\"\\nThe present controversy \\\"arose when the plaintiff's (J. A. Shingle-ton's) brother and other kinsmen were attempting to go .over (the) moad .in question which leads from the public road through the Wildlife Refuge of the defendants by the most direct route to the plaintiff's land and . . . defendants placed -a locked gate at the entrance to- the road -in question and mounted armed guards to keep out all persons except plaintiff.\\\"\\nPlaintiff -contends the -right-of-way granted him by the State is an easement appurtenant. Defendants -contend it is an. \\u00a9aisememt in gross and may fee used and enjoyed -only by J. A. Shimgleton personally. J. A. -Shingleton instituted tlhe present action feo> have determined his rights under the grant of easement, and makes allegations which, he contends, entitles him to injunctive -relief.\\nTriad by jury was waived -and -the judge made findings of fact and conclusions of law and entered judgment. It -was adjudged that the easement granted toy the State to- the plaintiff \\\"'is- am unlimited easement appurtenant to plaintiff's land, given to plaintiff for his use and the use of his -agents, servants, employees-, licensees, and this public generally Who- (have not been re-fused permission to- use- the easement toy the plaintiff,\\\" and \\\"\\u00a1that the defendants, their agents, servants and employees . . . are enj oin-ed from interfering toy gate \\u00a1or otherwise with the use -of said easement -or roiad as herein provided.\\\"\\nAm appurtenant easement is one which is attached to and- passes with the dominant tenement as -an appurtenance thereof; it is owned in connection -with other real estate \\u00a1and as am incident -to such ownership. An easement in gross is not appurtenant to any estate in land and does not belong to any person by virtue of his ownership of an estate in other land, tout -iis a mere personal 'interest in -or right to- use -the land of -another; it is purely personal -and usually ends -with the death of the grantee. Davis v. Robinson, 189 N.C. 589, 127 S.E. 697. An easement appurtenant is in-cap-ab-le of existence ap-art from tine particular 1-amd to which it is annexed, it -exists only if the same person has title to the easement and the dominant -estate; it must bear some relation to- the use of the dominant -estate, and it must agree in- mature and quality to the thing to- w/hi-ch it is claimed to- be appurtenant. Am easement appurtenant is incident to an elstate, and inheres in -the land, concern\\u00a9 the premise\\u00a9, pertains- -to- its enjoyment, -and passes with -the transfer of the title to the land, -including transfer -by descent. 17A Am. Jur., Easements, ss. 9, 11, pp. 624, 625, 627. If -am easement is -im gross there is no dominant tenement-; \\u00a1an- easement is in gross and personal to -the grantee -because it iis- not appurtenant -to- -other premises. Ibid, pp. 626-7. A-n \\u2022easement -in gross -attache\\u00a9 to- the -person -and mot to land. 89 A. L. R. 1189.\\nThe easement im the instant ease is by deed, which is of course a contract. \\\"The controlling purpose o-f the -court -in construing a contract is to ascertain the -intention of the parties 'as of the time -the contract was made, and to do this consideration must be given to the purpose -to be accomplished, the -su-bj \\u00a9ct-matter \\u00a1of the -contract, -and -the situation of the parties.\\\" Weyerhaeuser Co. v. Light Co., 257 N.C. 717, 127 S.E. 2d 539. \\\"If there is any doubt entertained as to the real intention, we should reject that interpretation which leads to injustice and \\u00abadopt that one which conforms more to the presumed meaning, because it does not produce unusual and unjust results.\\\" Patrick v. Insurance Co., 176 N.C. 660, 97 S.E. 657; Hine v. Blumenthal, 239 N.C. 537, 547, 80 S.E. 2d 458. \\\"Whether an easement is appurtenant or in gross is controlled mainly by the nature of the right and the intention of the panties creating it, and must be determined iby the fair interpretation of the grant . . . creating the easement, aided if necessary by the situation of the property and the surrounding circumstances. If it appears from such a construction of the grant . . . that the panties intended to create a 'right in the nature of an easement in the property retained for the benefit of the property granted, . . . such right will be deemed an easement -appurtenant and not in gross, regardless oif the form in which \\u00a9ucfh. intention is expressed. On the other hand, if it appears from isuch a construction that the parties intended to' create a right to be attached to -tire person to whom it was granted ., it will be deemed to be -an easement in gross. An easement its appurtenant to land, if it is so in fact, although it its not declared to foe so in the deed or instrument creating it; and an easement, which in its nature is appropriate and a useful adjunct of land owned by the grantee of the easement, will be declared an 'easement 'appurtenant,' \\u00a1and not 'in gross,' in the absence of a \\u00a9bowing that the parties intended it to be a mere personal right.\\\" 28 C. J. S., Basements, s. 4c, pp. 636-7. In caste of doubt, an easement is presumed to- be appurtenant, and not in gross. 17A Am. Jur., Easements, s. 12, p. 628.\\nDefendants contend that the easement of ingress tatnd egress granted by -them its in .gross and personal to J. A. Shingleton. The grant does not use the term \\\"appurtenant\\\" nor the term \\\"in gross.\\\" It does not qualify plaintiff's right by use of such terms as \\\"personally\\\" or \\\"in person.\\\" The language of the grant is that \\\"the said J. A. Shingleton is \\u2022hereby granted the right . . .\\\" The fact that the words \\\"heirs 'and assigns\\\" are not inserted after the name of the grantee does not control interpretation. G.S. 39-1; 28 C. J. S., Easements, s. 4c, p. 637. Defendants insist \\u00a1that the consent judgment indicates that the easement was a right personal to plaintiff. We do not so- interpret it. The consent judgment makes no direct reference to the ea.sement, it merely refers to -the deed from \\u00a1the State to plaintiff. The only writing bearing upon, the question is the provision in the deed. It will be observed that the deed, in addition to the .grant of easement to the plaintiff, reserves the .right to the State to \\\"Maintain and use the roads existing on\\\" the land conveyed to plaintiff. We do not understand \\u00a1that defendants con tend that the reads across plaintiff's 110-aore toot can be used curly by tibe individual members of tibe Wildlife Resources .Commission and that tibe agents, servants, employees and lioense.es of the Commission are excluded. Yeti tibe reservation and tlhe grant are written in. parallel moid'es of expression. It seems clear that the reservation of easement is appurtenant tio tihe lands retained by the State. In tihe .absence of express .provision in the grant restricting the easement to the personal use of plaintiff, tihe presumption is that it is an easement appurtenant to plaintiffls 110-acre \\u00a1tract. Moreover, the situation of filie property \\u00a1a/nd tihe surrounding \\u00a1circumstances indicate beyond, question \\u00a1that an easement appurtenant was intended. The original controversy, in tihe settlement of which the deed wais given, .arose from conflicting claims oif rights \\u00a1and title to lands. The record \\u00a1does mot disclose that plaintiff Ibas ever claimed \\u00a1any personal rights, apart from land ownership, in the Wildlife Area. The deed \\u00a1conveys to plaintiff a \\u00a1tract of land which, without some adequate -access over defendants' lands, would 'be completely cut off from any public or private ro,ad. The grant of easement was so- clearly connected with .tire conveyance of the 110-aore tract \\u00a1that in tihe deed it follows immediately tihe description of the land. The words \\\"ingress\\\" \\u00a1and \\\"egress\\\" as used in tihe grant of easement show clearly it was intended that tihe easement is connected with and is to be used for tihe \\u00a1benefit -of \\u00a1the land. The roiad in question is appurtenant to tihe land in .fact, anid- leads from the land across the Wildlife Area tio tihe public road beyond. Apart from tihe ownership of the 110-acre tract, the easement is worthless. If plaintiff did not own this land he would have no business or interest of any kind within the Wildlife A^ea. The land was conveyed tio plaintiff in fee. It iis not reasonable tio conclude that the \\u00a1State would undertake -to. grant and plaintiff to accept a right of .access to land which would end .at the death of -plaintiff and render the -land thereafter inaccessible \\u00a1and worthless. Furthermore, it is not reasonable to- \\u00a1suppose -that plaintiff could, \\u00a1acting alone, cut and remove timber .from \\u00a1his land or cultivate, harvest and remove \\u00a1crops, or -make other beneficial use of the land. Certainly the parties did! not intend that plaintiff's heirs, devisees \\u00a1or -alssigns Should have no \\u00a1ale-cess to -the \\u00a1property. We hold that the easement granted by \\u00a1the State to plaintiff is \\u00a1appurtenant to plaintiff's land described in the deed.\\nThe court below .adjudged that the \\u00a1State .granted \\\"an unlimited easement appurtenant to- plaintiff'\\u00a9 land . . . for his use \\u00a1and tihe use of his agents, servants, employees, licensees, \\u00a1and the public generally who have not been refused permission to use this easement \\u00a1by plaintiff.\\\" In our \\u00a1opinion tihe record -in this case does not \\u00a9how that the general public \\u00a1should ibe -permitted to use the road. \\\"It is -an established principle that -th-e unrestricted grant of a\\u00a9 easement gives -the grantee all su-ch rights as are incidental or -necessary to the reasonable and proper enjoyment -of the easement. A grant . . . of an easement in general terms is limited to >a use which is reasonably necessary .and loomveniant and as little burdensome to- the iservient estate ais possible for the use -contemplated. Am unlimited conveyance -of -an easement is in law a grant of unlimited reasonable use. Such grant is not restricted to use merely for the purposes of the -dominant estate .as -are reasonably required at .the d\\u00edate of the grant, but the right may .be exercised by the owners of the dominant estate for any use to which the latter -estate may be subsequently devoted. Thus there may be -an increase in the volume and hind .of use of such an easement during the comise -o-f its enjoyment.\\\" 12A Am. Jur., Easements, s. 113, pp. 720, 721. \\\"The reasonable use and enjoyment of an easement is to be determined in the light of the situation of the property and the surrounding circumstances.\\\" What is a reasonable use is a question of fact. Ibid., p. 721.\\nIn -determining what uses of the easement are reasonably necessary and -convenient, consideration must be given to- the purposes for which the easement was granted. Sparrow v. Tobacco Co., 232 N.C. 589, 61 S.E. 2d 700. The owners of the servient estate may make any use of their property -and road not inconsistent with the reasonable use an-d enjoyment of the easement granted. Light Co. v. Bowman, 229 N.C. 682, 51 S.E. 2d 191. The easement was granted for the purpose of ingress and egress to and from p-laintiff's 110-acre tract of land. The ingress -and egress must have -some relation, directly or incidentally, to the actual use -of the land -by the owner. The record iis silent ais to what use is being made -o-f the land, but it is safe to assume that in its position oif isolation it is not being used for any business which would reasonably require that the general public .have -access thereto. It is suggested in plaintiff's brief that it is timberland or farmland. Plaintiff hais made- no showing which, justifies the us-e of the easement by the general public. Furthermore, defendants are maintaining a wil-dlife refuge on the lands -o-ver which the road passes. Access by the general public is -inimical to the maintenance of such refuge. I-t is no violation of plaintiff's nights under his easement that he b-e required to give permission to those wh-o travel the road in -connection with the use and enj oymen-t of the -dominant estate. The wo-rdis \\\"and the public generally who have not been refused permission to use this easement by the plaintiff,\\\" will be stricken from -th-e judgment belo-w.\\nThe court below decreed \\\"that the defendants, their -agents, servants and employees, be, and they are -hereby enjoined from interfering -by lo-cked gate o-r otherwise with the use -of said -easement or road as here in. provided.\\\"'This portion o\\u00ed the judgment is mot sustained. The owner of property cannot maintain am notion against the State or any agency of the State in tort for damages to property (except -as provided 'by statute, G.S., Oh. 143, Art. 31). It follows that he cannot maintain an action .against it to restrain the commission of a tort. However, the landowner is not without a remedy. When public officers whose duty it is to supervise and direct a State agency attempt or threaten to invade the property rights of a citizen in disregard of law, they are not relieved of responsibility by the immunity o\\u00ed the State from suit, even though they 'act or assume to act under (the authority and pursuant to the directions of the State. Schloss v. Highway Commission, 230 N.C. 489, 492, 53 S.E. 2d 517. In the instant action none of the officer's or agents of the State are parties. And even if they were p>arties, it should be borne in mind that the plaintiff in the use of the road in question may not impose unnecessary and unreasonable burdens upon the servient tenement. In the light of the meagre facts presented by the record, it would seem that defendants' officers would be acting within defendants' rights in intercepting and questioning users of the road to ascertain their .identity and status, 'and to- determine whether they have permission for such use, and in preventing them from molesting or talcing game, wildlife or trees from the lands of defendants, should such be attempted. Furthermore, the maintenance of a gate, even, a looked gate, would not necessarily be inconsistent with plaintiff's rights so long as the use of the road by himself and his agents, servants, employees and licensees is not unreasonably interfered with thereby. We Me not called upon on this appeal to. promulgate 'rules for the guidance of the parties. But reasonable men can most certainly arrive at an. understanding that will protect the rights of all.\\nDefendants demur ore tenus to the complaint on the ground that the superior court is without jurisdiction of tire subject-matter of this action. They contend that the State 'has not consented to be .sued in an action such as that alleged. The demurrer' is overruled. G.S. 41-10.1, in pertinent part, provides that \\\"Whenever the State of North Carolina ox .any agency or department thereof, .asserts a claim of title to land which has not been taken by condemnation and any individual . , . likewise asserts a claim of title to said land, such individual . . . may (bring .an action in the superior court . . . against the State or any such agency or department thereof for the purpose of determining such .adverse claims.\\\"\\nAh easement is an interest in land land is generally created by deed. Weyerhaeuser Co. v. Light Co., supra; Morganton v. Hudson, 207 N.C. 360, 177 S.E. 169; Combs v. Brickhouse, 201 N.C. 366, 160 S.E. 355. An easement -appurtenant to- property is property. Williams v. Highway Commission, 252 N.C. 772, 114 S.E. 2d 782. A private rigihit-of-wiay is an easement and is land. United States v. Welch, 217 U.S. 333 (1910). Every right to land is a title. If \\u00ae person hais the actual or constructive possession of property, or 'the right of possession, he has a title thereto-, though another person may be the owner. Roberts v. Wentworth, 59 Mass. 192 (1849); Brady v. Cartaret Realty Co., 90 A. 257 (N.J. 1914). In the instant case there are adverse -claims o>f title to land.\\nThe judgment below wall be modified in accordance with this opinion.\\nModified and affirmed.\"}" \ No newline at end of file diff --git a/nc/8609356.json b/nc/8609356.json new file mode 100644 index 0000000000000000000000000000000000000000..6856fc21bee9ff8187e211f63d4f5d6cd2d32d9c --- /dev/null +++ b/nc/8609356.json @@ -0,0 +1 @@ +"{\"id\": \"8609356\", \"name\": \"J. H. HARRIS v. A. B. FAIRLEY, State Warehouse Superintendent, FARMVILLE BONDED WAREHOUSE COMPANY, HENRY CLARK BRIDGERS, HARTFORD ACCIDENT AND INDEMNITY COMPANY, NATIONAL SURETY CORPORATION, THE INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, NORTH CAROLINA COTTON GROWERS COOPERATIVE ASSOCIATION, W. T. LAMM, Trading as W. T. LAMM AND COMPANY, and WILLIAM J. WILLIAMS, Administrator of GEORGE W. WILLIAMS\", \"name_abbreviation\": \"Harris v. Fairley\", \"decision_date\": \"1950-11-01\", \"docket_number\": \"\", \"first_page\": \"551\", \"last_page\": \"555\", \"citations\": \"232 N.C. 551\", \"volume\": \"232\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:19:34.632373+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. H. HARRIS v. A. B. FAIRLEY, State Warehouse Superintendent, FARMVILLE BONDED WAREHOUSE COMPANY, HENRY CLARK BRIDGERS, HARTFORD ACCIDENT AND INDEMNITY COMPANY, NATIONAL SURETY CORPORATION, THE INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, NORTH CAROLINA COTTON GROWERS COOPERATIVE ASSOCIATION, W. T. LAMM, Trading as W. T. LAMM AND COMPANY, and WILLIAM J. WILLIAMS, Administrator of GEORGE W. WILLIAMS.\", \"head_matter\": \"J. H. HARRIS v. A. B. FAIRLEY, State Warehouse Superintendent, FARMVILLE BONDED WAREHOUSE COMPANY, HENRY CLARK BRIDGERS, HARTFORD ACCIDENT AND INDEMNITY COMPANY, NATIONAL SURETY CORPORATION, THE INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, NORTH CAROLINA COTTON GROWERS COOPERATIVE ASSOCIATION, W. T. LAMM, Trading as W. T. LAMM AND COMPANY, and WILLIAM J. WILLIAMS, Administrator of GEORGE W. WILLIAMS.\\n(Filed 1 November, 1950.)\\n1.Warehousemen \\u00a7 3c\\u2014\\nOfficial warehouse receipts are negotiable by written assignment and delivery, and negotiation of a receipt is not impaired by the fact that such negotiation was a breach of duty on the part of the person making the negotiation if the person to whom the receipt was negotiated took same for value, in good faith, and without notice of the breach of duty. G.S. 27-51, G.S. 106-442.\\n2.Warehousemen \\u00a7 Sh\\u2014\\nA warehouse and its manager, sued for conversion of cotton, may not maintain a cross-action against the transferees of the warehouse receipts when it is alleged they obtained the receipts from the owner and had the cotton delivered to persons designated by them upon surrender of the duly endorsed receipts, nor may the allegations of conversion contained in the complaint aid the allegations in such cross-action when the answer denies the conversion.\\n3.Same\\u2014\\nThe fact that the owner fails to take up his warehouse receipts when he delivers his cotton to the warehouse is not alone sufficient to relieve the warehouseman of liability if the removal of the cotton from the warehouse is contrived by the fraud of the manager.\\nAppeal by defendants, Farmville Bonded 'Warehouse Company, Henry Clark Bridgers and National Surety Company, from Bone, J., May Term, 1950, of Pitt.\\nAffirmed.\\nThis was an action to recover of the State \\\"Warehouse Superintendent in his official capacity for the loss of 127 bales of lint cotton stored in the Farmville Bonded \\\"Warehouse under the provisions of Chapter 106 of the General Statutes of North Carolina.\\nThe plaintiff alleged that defendant Fairley as the duly appointed State Warehouse Superintendent had leased the Farmville Bonded Warehouse Company\\u2019s warehouse for use by him as agent of the State for the warehousing of cotton, and that the defendant appointed Henry Clark Bridgers to manage and operate the warehouse for the State of North Carolina, and that G. S. Williams was appointed as local manager in charge of the warehouse; that plaintiff stored 127 bales of cotton in the Earmville Bonded Warehouse, and G. S. Williams issued official warehouse receipts therefor in the name of plaintiff and some in name of the North Carolina Cotton Growers Cooperative Association for the plaintiff; that thereafter plaintiff made repeated efforts to obtain his. cotton or to have same sold for his benefit; that Williams repeatedly promised to deliver and assured plaintiff the cotton was in the warehouse, which was not true, and plaintiff has received nothing; that plaintiff has learned that Williams fraudulently contriving approached farmers in that section and induced them to permit him to sell cotton under their contract numbers through the Association and to turn the money over to him, and plaintiff\\u2019s information is that plaintiff\\u2019s cotton was in this manner removed from the warehouse and sold. Plaintiff asks that he recover of defendant State Warehouse Superintendent the value of his cotton, $19,376.86, to be paid out of the indemnifying fund created by G.S. 106-435.\\nThe defendant Fairley, State Warehouse Superintendent, answered denying liability for plaintiff\\u2019s loss and alleging that under G.S. 106-439 he supervised the operations of the warehouse of the Earmville Bonded Warehouse but denied that he operated the warehouse or that either Bridgers or Williams was his agent; that plaintiff not having demanded or received official warehouse receipts when he delivered the cotton, no liability was incurred as against the indemnity fund created by G.S. 106-435 ; that the warehouse receipts which had been issued for the cotton stored by plaintiff were endorsed to the Cotton Growers Cooperative Association and were thereafter surrendered to the Farmville Bonded Warehouse by said Association and cancelled, and the cotton delivered to those designated by the Association.\\nOn motion of defendant Fairley, the Farmville Bonded Warehouse Company, Henry Clark Bridgers and the sureties on his bond were made parties defendant. And subsequently, on motion of defendant Bonded Warehouse Company, the North Carolina Cotton Growers Cooperative Association, W. T. Lamm, and the administrator of G. S. Williams were also made parties.\\nThe defendant Bonded Warehouse Company, Henry Clark Bridgers and the National Surety Company filed answer admitting the employment of G. S. Williams as local manager, and that plaintiff stored 127 bales of cotton in defendant\\u2019s warehouse, and that warehouse receipts were duly issued for each bale either in name of J. H. Harris or in the name of the Cotton Association as directed by plaintiff; that the warehouse receipts were by the plaintiff delivered to the Association, and that 127 bales of cotton were delivered by the defendant Bonded Warehouse Company to those designated by the Association upon surrender and cancellation of receipts duly and properly endorsed, therefor; that under the statute these warehouse receipts were made negotiable, and the warehouse was required to deliver the cotton upon surrender and cancellation of the receipts; that G. S. Williams was local agent of the Warehouse Company, and also receiving agent at Farmville for the Cotton Association ; that warehouse receipts for 7 bales of the cotton stored by plaintiff were turned over by the Association to W. T. Lamm, who in turn surrendered them to the defendant Warehouse Company, and had the cotton delivered to those designated by him.\\nThese defendants allege that if they be held liable to the plaintiff then the Cotton Association and W. T. Lamm, who surrendered the receipts to the Warehouse Company and to or for whom the cotton was actually delivered, should be held liable over to these defendants; aiid that if Gr. S. Williams wrongfully converted plaintiff\\u2019s cotton, which these defendants deny, he was acting not as their agent but individually, and they ask that his administrator be made party.\\nThe Cotton Association and W. T. Lamm demurred to the complaint and to the answer and cross-complaint of the Warehouse Company and Henry Clark Bridgers. Both demurrers were sustained. The plaintiff Harris excepted but withdrew his appeal. The defendant Warehouse Company and Henry Clark Bridgers excepted to the judgment sustaining the demurrers and appealed.\\nPhilips & Philips, S. B. Underwood, Jr., and Henry G. Bourne for Farmville Bonded Warehouse Company, Henry Clark Bridgers, and National Surety Corporation, appellants.\\nLucas \\u2022& Rand and Z. Hardy Rose for W. T. Lamm, appellee.\\nBurgess, Baker ds Duncan for defendant North Carolina Cotton Growers Cooperative Association, appellee.\", \"word_count\": \"1842\", \"char_count\": \"11638\", \"text\": \"DeviN, J.\\nThe Farmville Bonded Warehouse Company, Henry Clark Bridgers, and the surety on the latter's bond, who had been made parties defendant on the motion of the original defendant Fairley, appealed from the judgment sustaining the demurrers of the North Carolina Cotton Growers Cooperative Association and W. T. Lamm to their answer and cross-complaint. The propriety of the ruling below in this respect is the only question presented by the appeal.\\nAn examination of the answer and cross-complaint of the appellants leads us to the conclusion that the allegations therein contained are insufficient to support an action for affirmative relief against the Cotton Growers Cooperative Association or W. T. Lamm.\\nThe answer filed by these appealing defendants denied liability to the plaintiff for the cotton stored by him in defendant's warehouse, but asserted, in the event they be held liable, that the Cotton Association and W. T. Lamm should be held liable over to appellants on the ground that the Association and Lamm surrendered the warehouse receipts representing the 127 bales of cotton referred to in the complaint, and received the cotton represented thereby. But it was also alleged that these receipts had been delivered by plaintiff Harris to the Cotton Association and when surrendered to appellants had been duly and properly endorsed.\\nThe statute makes these warehouse receipts negotiable by written assignment and delivery, and declares that the validity of the negotiation of a receipt is not impaired by the fact that such negotiation was a breach of duty on the part of the person making the negotiation, if the person to whom the receipt was negotiated took the same for value, in good faith and without notice of the breach of duty. G.S. 27-51; G.S. 106-442; Cotton Mills v. Cotton Co., ante, 186, 59 S.E. 2d 570. Here, there is no allegation that impugns the good faith or title of the Cotton Association or of Lamm to the warehouse receipts covering plaintiff's cotton. On the contrary, it affirmatively appears from appellants' pleading that the Cotton Association received the warehouse receipts from the plaintiff himself, and that subsequently the receipts duly endorsed were surrendered to the Warehouse Company and the cotton delivered thereon. Thus the allegation by which appellants seek to avoid liability to the plaintiff would seem also to exonerate the Cotton Association and Lamm from liability under their cross-complaint.\\nIt was argued on the hearing that plaintiff's complaint alleged the cotton was removed from the warehouse as the result of nefarious transactions by G. S. Williams, the local manager, who wrongfully obtained the proceeds of th\\u00e9'sale of the cotton through the Association, and that this, taken in connection with the allegations in appellants' answer that Williams was also receiving agent of the Cotton Association, was sufficient to survive the demurrer. Whether by invoking the doctrine of aider and the principle that a demurrer requires search of the entire record the appellants may add those allegations in the complaint to their pleading against the Cotton Association need not be determined, for we observe that the appellants have denied the conversion of this cotton or wrongdoing on the part of Williams. Plaintiff sought recovery for the loss of his cotton only from defendant Fairley as State Warehouse Superintendent, and did not ask recovery against any of the defendants subsequently made parties.\\nThere is no allegation against W. T. Lamm in the complaint, and the only reference to him in appellants' pleading is that he surrendered warehouse receipts for 7 bales of plaintiff's cotton, the receipts being properly endorsed, and received the cotton represented by the receipts. There was no allegation that the receipts were acquired by Lamm in any manner that would affect his title as holder of properly endorsed negotiable warehouse receipts.\\nThe demurrer to the complaint, interposed ore terms in this Court by the appellants, cannot be sustained. The failure of plaintiff to take up his warehouse receipts when he delivered his cotton to the warehouse, if the allegations in the complaint bear that interpretation, would not alone he sufficient to relieve the warehouseman of liability for the removal of the cotton from the warehouse contrived by the fraud of the manager as alleged in the complaint. Lacy v. Indemnity Co., 193 N.C. 179, 136 S.E. 359; Northcutt v. Warehouse Co., 206 N.C. 842, 175 S.E. 165.\\nFor the reasons stated we think the judgment sustaining the demurrers was properly entered, and must he\\nAffirmed.\"}" \ No newline at end of file diff --git a/nc/8610583.json b/nc/8610583.json new file mode 100644 index 0000000000000000000000000000000000000000..d8f350885563b2fd984f55a57256df99333dfd9b --- /dev/null +++ b/nc/8610583.json @@ -0,0 +1 @@ +"{\"id\": \"8610583\", \"name\": \"MRS. MADELINE B. WHITSON, Administratrix of MONROE WHITSON, v. SHERRILL FRANCES, GEORGE FRANCES, and GEORGE FRANCES, Guardian Ad Litem for SHERRILL FRANCES\", \"name_abbreviation\": \"Whitson v. Frances\", \"decision_date\": \"1954-10-13\", \"docket_number\": \"\", \"first_page\": \"733\", \"last_page\": \"738\", \"citations\": \"240 N.C. 733\", \"volume\": \"240\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:39:27.834621+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MRS. MADELINE B. WHITSON, Administratrix of MONROE WHITSON, v. SHERRILL FRANCES, GEORGE FRANCES, and GEORGE FRANCES, Guardian Ad Litem for SHERRILL FRANCES.\", \"head_matter\": \"MRS. MADELINE B. WHITSON, Administratrix of MONROE WHITSON, v. SHERRILL FRANCES, GEORGE FRANCES, and GEORGE FRANCES, Guardian Ad Litem for SHERRILL FRANCES.\\n(Filed 13 October, 1954.)\\n1. .Evidence \\u00a7 29 % \\u2014\\nPlaintiff is not entitled to the introduction in evidence of allegations of the complaint which are denied by the answer, since such allegations are mere self-serving declarations.\\n2. Same\\u2014\\nPlaintiff is entitled to introduce in evidence admissions in the answer of distinct and separate facts pertinent to the facts at issue as proof of the facts admitted without reference to the corresponding allegation of the complaint.\\n3. Same\\u2014\\nWhere an admission in the answer is categorical, but is more or less meaningless standing alone, plaintiff may offer such portion, and only such portion, of the corresponding allegation of the complaint as serves to explain or clarify tlie specific admission.\\n4. Evidence \\u00a7 43c\\u2014\\nTestimony of statements made by tbe driver of a motor vehicle after tbe collision as .to tbe defective condition of one of bis headlights just prior to the accident, is admissible against him.\\n5. Negligence \\u00a7 19b (4) \\u2014\\nCircumstantial evidence of negligence must be submitted to tbe jury if tbe facts and circumstances establish actionable negligence as tbe more reasonable probability by logical inference, even though tbe possibility of accident may also arise on tbe evidence.\\n6. Same\\u2014\\nPhysical facts and circumstances are insufficient to be submitted to tbe jury on tbe issue of negligence if tbe inference of negligence therefrom rests on mere conjecture or surmise.\\n7. Automobiles \\u00a7 18h (2) \\u2014 Proof of collision with pedestrian on highway is alone insufficient to warrant inference of actionable negligence.\\nPlaintiff\\u2019s evidence tended to show tbe following facts and circumstances : Tbe infant defendant was operating a truck on a public highway at night with knowledge that bis right headlight was not burning. Plaintiff\\u2019s intestate was walking on the highway headed in the opposite direction. The right front fender of the truck struck the intestate, apparently throwing his body up between the fender and the hood from which it fell or was thrown down a steep embankment, causing injuries from which he died. Held: The evidence was insufficient to be submitted to the jury on the issue of the actionable negligence of defendant driver, the position of intestate and the truck at the moment of impact, whether defendant driver could have seen him in time to have avoided the collision if he had been keeping a proper lookout and if his truck had been equipped with proper headlights, all being left in mere speculation and conjecture by the evidence.\\nAppeal by plaintiff from Pless, J., July Term 1954, Mitchell.\\nAffirmed.\\nCivil action to recover compensation for tbe alleged wrongful death of plaintiff\\u2019s intestate.\\nAbout S :00 p.m. on 27 December 1953, deceased left tbe borne of one \\\"Willie Bennett, saying be was tben on bis way to Joe Street\\u2019s store. Tbis would take bim by tbe place bis body was later found. He tben bad some \\u25a0 currency in bis pocket- \\u2014 at least a one dollar bill and a ten dollar bill.\\nShortly thereafter a motorist traveling north on Highway 26 along Big Rock Creek saw tbe bulk of a body standing \\u201cright close to where tbe body was found. . . . Tbe best I could see be was off of tbe black-top, whoever it was. He was right close to tbe shoulder of tbe road.\\u201d\\nAs the motorist passed, be observed a pickup truck approaching from tbe opposite direction, going south. \\u201cAt tbe time I saw tbe bulk of tbis person tbe oncoming car or truck was coming down, meeting bim. ... I could not tell who it was. I saw the bulk of this person, I guess, about 50 feet above the steps.\\u201d The approaching vehicle had one headlight on. Shortly thereafter, the body of plaintiff\\u2019s intestate was found on the opposite side of the steps, about thirty feet from the creek.\\nNear the point the decedent\\u2019s body was found there is a bank from the shoulder of the road which slopes down to Big Eock Creek. \\u201cIt is an awful rough place between the road and the creek.\\u201d- A stairway \\u2014 forty or fifty steps \\u2014 leads down the embankment from the road to a foot log across the creek. The stairway has hand rails set on two by four uprights.\\n\\\"When witnesses arrived, the truck belonging to defendant George Frances was standing on the hard surface portion of the road to the right of the center line. The hand rails of the stairway were \\u201cbursted open\\u201d and broken. A locust bush or small tree about the size of an arm, growing about thirty feet down the embankment, was broken off, and there was blood on the hand rail and spots of blood on the rocks. There were tire marks on defendant\\u2019s right hand side of the hard surface which began about thirty feet north of the stairway and extended south for a distance of one hundred forty feet. It was eighty-eight feet from 'the end of the tire marks to the truck and eighty-two feet four inches from the beginning point of the tire marks to the place the body was found. The right headlight of the truck was broken, and the right front fender and the hood were damaged. The Chevrolet emblem on the right side of the hood was broken, and a few strands of hair were caught underneath it. \\u201cThe right front fender was mashed in on the side and just a dent on the right side of the hood.\\u201d\\nSome little time after the body was discovered and people had gathered at the scene of the collision, a ten dollar bill and a one dollar bill were found a foot or two apart on the shoulder of the road, thirty or forty feet north of the steps. No dirt, glass, or other debris was found either on the hard surface or on the shoulder of the road.\\nThe infant defendant had been operating the truck, and defendants admit in their answer that the truck struck or collided with the deceased. Before the collision he had been having some trouble with his right headlight. It would flicker on and off. He had trouble with the bulb. Two had burned out. \\u201clie said that if the glass was broken out of the headlight he didn\\u2019t know it, but he had had trouble with the bulb in the headlight ... he had had his brother to fix it two times.\\u201d There was no evidence as to the speed of the truck at the time of the collision or as to whether the reflector glass to the right headlight was in place at the time of the collision. The highway was straight in both directions.\\nThe course of the highway at the point of the collision is referred to in the record both as north-south and east-west. The highway map indicates that at that point its course is north-south. We so treat it. This means that deceased was walking in a northerly direction and the truck was headed south.\\nAt the conclusion of plaintiffs evidence in chief the court, on motion of defendant, entered judgment of involuntary nonsuit. Plaintiff excepted and appealed.\\nW. G. Berry, G. D. Bailey, and W. IS. Anglin for plaintiff appellant.\\nHarkins, Van Winkle, Walton \\u25a0& Buck for defendant appellees.\", \"word_count\": \"2320\", \"char_count\": \"13406\", \"text\": \"BaRNI\\u00edill, C. J.\\nIn paragraph 7 of his complaint plaintiff alleges various acts of negligence on the part of the operator of the pickup truck \\\"causing said pickup truck to strike the plaintiff's intestate, Monroe Whitson, with crushing impact at a time when the said Monroe Whitson was lawfully walking upon his extreme left-hand side or shoulder of said highway going in a northerly direction.\\\"\\nThe defendants in their answer deny all the allegations contained in said paragraph.\\nAt the trial plaintiff tendered in evidence that part of paragraph 7 which is above quoted. On objection, this evidence was excluded. In this ruling there was no error.\\nBx parte, self-serving declarations contained in a complaint are not admissible in evidence as proof of the facts alleged. It is the admissions in the answer which are available to and may be offered as evidence by the plaintiff as proof of the facts admitted.\\nAdmissions of distinct and separate facts pertinent to the matters at issue contained in the answer may be offered in evidence as proof of the facts admitted without reference to the corresponding allegation in the complaint. When, however, the defendant makes an admission which is categorical in nature and, standing alone, is more or less meaningless, the plaintiff may offer such portion, and only such portion of the corresponding allegation of the complaint as serves to explain or clarify the specific admission tendered in evidence, but nothing more.\\nThis question is discussed in Winslow v. Jordan, 236 N.C. 166, 72 S.E. 2d 228. Reference may be had to that decision and the authorities therein cited.\\nStatements made by the infant defendant after the collision relative to the condition of his headlight just prior to the mishap were admissible as against him. No doubt objection thereto was sustained because they were repetitious and the answer tended to place before the jury unverified hearsay, neighborhood rumors. In discussing the primary question presented, we will treat these statements as if they had been admitted.\\nDid plaintiff offer evidence of sufficient probative force, when such evidence is considered in the light most favorable to her, to entitle her to have her cause submitted to a jury? This is the decisive question presented.\\nDirect evidence of negligence is not required. It may be inferred from facts and attendant circumstances, and if the facts proved establish the more reasonable probability that the defendant was guilty of actionable negligence, the case cannot be withdrawn from the jury, though the possibility of accident may arise on the evidence. Etheridge v. Etheridge, 222 N.C. 616, 24 S.E. 2d 477.\\nWhen, in a case such as this, the plaintiff must rely on the physical facts and other evidence which is circumstantial in nature, he must establish attendant facts and circumstances which reasonably warrant the inference that the death of his intestate was proximately caused by the actionable negligence of the defendant. Sowers v. Marley, 235 N.C. 607, 70 S.E. 2d 670, and cases cited; Mitchell v. Melts, 220 N.C. 793, 18 S.E. 2d 406.\\nThe inferences contemplated by this rule are logical inferences reasonably sustained by the evidence when considered in the light most favorable to the plaintiff. Atkins v. Transportation Co., 224 N.C. 688, 32 S.E. 2d 209; Sowers v. Marley, supra. It cannot be made to rest on conjecture or surmise. It must be \\\"a permissible conclusion drawn by reason from a premise established by proof.\\\" Sowers v. Marley, supra.\\nProof of a collision between a motor vehicle and a pedestrian on a public highway and the resulting death of the pedestrian is not sufficient to warrant an inference that the collision and death were proximately caused by the negligence of the motorist. Ray v. Post, 224 N.C. 665, 32 S.E. 2d 168; Pack v. Auman, 220 N.C. 704, 18 S.E. 2d 247; Mitchell v. Melts, supra; Harward v. General Motors Corp., 235 N.C. 88, 68 S.E. 2d 855.\\nWhen the evidence contained in this record is sifted to its essentials and weighed in the balance provided by these rules of law, we find we have just these bare facts established, prima facie, by the evidence. The infant defendant was operating a pickup truck on Highway 26 at night. At the time, his right headlight was not on. The decedent, a pedestrian, was on the same highway, headed in the opposite direction. The right front fender struck deceased, apparently throwing his body up between the fender and the hood from which it fell or was thrown down the steep embankment. The decedent received injuries which caused his death. The defendants knew the headlight was not in proper working condition. Everything else is left to pure speculation.\\nThere is no evidence from which it may be inferred that the tire marks were made by the truck. If they were, then they indicate that the vehicle was traveling on the hard-surface portion of the road. No debris was found on the hard surface. Neither was any found on the shoulder. Nor were there any tire marks on the shoulder. Deceased had a ten dollar bill and a one dollar bill wadded up. Similar bills were found on the shoulder about an hour after the collision. Did they belong to the deceased ? How did they get there ? Had they been knocked about by the crowd that gathered before they were found ? The record fails to answer.\\nThe hand rails to the steps were spread out, and one of the uprights was broken. Were the hand rails struck by the automobile or the body of the deceased as it fell or was cast from the truck? There was no mark on the truck identified as having been made by or corresponding to any part of the hand rail. The blood and the location of the body would seem to indicate that it was the body and not the truck that came in contact with the steps.\\nWhere was deceased when he was struck ? Was he standing or walking ? If defendant had been keeping a proper lookout and his truck had been equipped with proper headlights, could he have seen deceased in time to avoid the collision, or did deceased fail to yield the right of way or suddenly step in front of the oncoming vehicle?\\nThus it is the testimony does no more than engender speculation. Ray v. Post, supra. There is no evidence from which an inference may be drawn either one way or another. Consequently, the line of cases represented by Pack v. Auman, above cited, is controlling here.\\nThe judgment entered in the court below is\\nAffirmed.\"}" \ No newline at end of file diff --git a/nc/8611511.json b/nc/8611511.json new file mode 100644 index 0000000000000000000000000000000000000000..cc23b0556482cfc5c5ede61fbc761ef7d9a93d10 --- /dev/null +++ b/nc/8611511.json @@ -0,0 +1 @@ +"{\"id\": \"8611511\", \"name\": \"MRS. IRENE ROBINSON v. L. F. McALHANEY\", \"name_abbreviation\": \"Robinson v. McAlhaney\", \"decision_date\": \"1940-01-03\", \"docket_number\": \"\", \"first_page\": \"674\", \"last_page\": \"681\", \"citations\": \"216 N.C. 674\", \"volume\": \"216\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T01:12:14.704097+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MRS. IRENE ROBINSON v. L. F. McALHANEY.\", \"head_matter\": \"MRS. IRENE ROBINSON v. L. F. McALHANEY.\\n(Filed 3 January, 1940.)\\n1. Courts \\u00a7 2a\\u2014\\nThe jurisdiction of the Superior Court on an appeal from a general county court is an appellate jurisdiction limited to matters of law only which are properly presented by errors assigned, and the Superior Court may either affirm or modify the judgment of the general county court or remand the cause for a new trial.\\n2. Appeal and Error \\u00a7 2\\u2014\\nAn appeal will lie to the Supreme Court from a judgment of the Superior Court entered on an appeal from a general county court, Public Laws of 1923, chapter 216, as amended by Public Laws of 1933, chapter 109 (Michie\\u2019s Code, 1608 [cc]).\\n3. Appeal and Error \\u00a7 6c: Judgments \\u00a7 22i\\u2014\\nOn appeal to the Superior Court from the general counts' court the Superior Court affirmed the verdict on one of the issues. Held: If plaintiff deemed that the judgment of the Superior Court in this respect was error, her sole remedy was by exception and appeal to the Supreme Court, and if she deems there is error in the decision of the Supreme Court, her sole remedy is by application for a rehearing.\\n4. Appeal and Error \\u00a7 49a \\u2014 The decision of the Supreme Court on appeal becomes the law of the case both in subsequent proceedings in the trial court and upon subsequent appeal.\\nThe Superior Court on appeal from a general county court entered judg,ment granting a new trial on two of the issues relating to damages and affirmed the verdict on all other issues, which included an issue relating to damages answered in favor of defendant. The judgment of the Superior Court was affirmed on appeal to the Supreme Court. Held: The judgment of the Supreme Court becomes the law of the case both in subsequent proceedings in the trial court and upon subsequent appeal, and it. was error for the county court upon the subsequent trial to permit the jury to consider elements of damages embraced in the issue theretofore adjudicated in defendant\\u2019s favor.\\n5. Master and Servant \\u00a7 7c \\u2014 In employee\\u2019s suit for breach of contract, damages should be limited to those accrued on date of institution of action.\\nPlaintiff alleged that defendant authorized her to procure a lease on a certain tourist home and have sole charge of the operation of it for a period of five years, plaintiff to be paid a percentage of the gross receipts for her services. Plaintiff instituted this action for breach of contract before the termination of the five-year period. Held: Plaintiff\\u2019s recovery should be limited to the damages accrued at the time of the institution of the action, and the action of the trial court in permitting the jury to compute damages on the basis of the compensation plaintiff would have received for the entire five-year period, while limiting the deduction of the 'amount plaintiff earned, or could have earned in other employment in the exercise of due diligence, from the date of the breach to the date of the institution of the action, is error.\\nAppeal by plaintiff from Pless, J., at June Term, 1939, of BuNCOMBe. Civil action instituted 8 July, 1937, in general county court of Buncombe County, for recovery of damages for breach of contract.\\nThe case came to this Court on former appeal from a judgment at the April Term, 1938, of the Superior Court of Buncombe County, on appeal thereto by defendant from judgment on verdict of the jury in general county court of said county. 214 N. C., 263, 199 S. E., 26.\\nThe terms of the contract sued upon and established by the verdict, briefly stated, are these: That in February, 1936, it was agreed between plaintiff and defendant that if she would procure a lease on tourist home owned by H. L. Lambert and consisting of store, restaurant, rooms and cabins, located at the entrance of Great Smoky Mountain Park above the Cherokee Indian School in Swain County, and give to the defendant the benefit of her experience and good will in the community, and her knowledge of trading with the Indians, he would finance the entire proposition, furnish the necessary funds for the payment of rents, purchase of Indian craft, and all expenses incidental to such business, and provide for plaintiff and her two daughters board arid lodging on the premises, and allow her three and one-half per cent of the gross receipts of the business \\u2014 she to manage the business, be in full, complete and sole charge of the premises; that she obtained a five-year lease for defendant to become effective on 1 April, 1936, and that she remained upon the premises and complied with the terms of the agreement until 1 June, 1936, during which period the defendant breached the contract in numerous respects.\\nAdverting to the former appeal, it will be noted that after considering and ruling upon each of the various exceptions then assigned as error, the judge of the Superior Court sustained the verdict (a) on the first and second issues, which established the contract and the breach of it, and (b) on the fourth issue: \\u201cWhat amount, if any, is plaintiff entitled to recover of defendant on account of board for herself and two daughters, as alleged in the complaint ? Answer: None.\\u2019 \\u201d But the court set aside the verdict on the third, fifth and sixth issues.\\nIn judgment then signed it is stated that the verdict on the fourth issue \\u201cshall not be set aside, but shall remain in full force and effect as the verdict of the jury, for that there was no reversible error committed in the trial relating to said issue, and for the further reason that said issue was answered against the plaintiff, and the plaintiff has not appealed to this Court, and the defendant does not ask that the answer to said issue be set aside.\\u201d\\nIt further appears that the court ordered \\u201cthat judgment of the general county court be set aside and the case be remanded thereto for new trial upon only two issues, the fifth and sixth, as follows\\n\\u201c5. What amount has plaintiff obtained by way of compensation from other employment subsequent to the breach of the contract prior to the 8th day of July, 1937,\\u201d and \\u201c6. What damage, if any, is plaintiff entitled to recover of defendant?\\u201d\\nThis judgment of the Superior Court was affirmed on the appeal to this Court.\\nOn re-trial in the general county court the case was submitted to the jury on the said issues as directed. To the issue, \\u201cWhat damage, if any, is plaintiff entitled to recover ?\\u201d the jury answered: \\u201c$4,000,\\u201d and to the other issue \\u201c$400.\\u201d Thereupon the court entered judgment in favor of the plaintiff for $3,600.\\nIn the course of the second trial, on being cross-examined with reference to her testimony as a witness on former trial, plaintiff testified: \\u201cI think I made some statement to that effect then that three and one-half per cent I was to receive from the gross income was to be paid monthly, but it was not definitely agreed as to how it was to be paid. I was to have money any time I needed it, daily, weekly, monthly, any time I needed money I was to take it.\\u201d Then upon being asked if she did not swear on the former trial that the three and one-half per cent was to be paid monthly, she replied: \\u201cThat is something near right, with the exception I was not asked anything about putting anything back into the business at that time. That was thoroughly discussed. We thoroughly discussed it, that we would allow as much to go back into the business as we could possibly do without. In addition to that I testified each month as the business went along he was to pay me three and a half per cent of the gross business shown each month, and that he was to board and furnish room for me and my two children. . . . That is what I said the contract was.. I have not changed the contract with Mr. McAlhaney since I was on the stand before. It is just exactly what it was before.\\u201d\\nThe defendant, having preserved two hundred and fourteen exceptions, appealed to the Superior Court of Buncombe County. In judgment of Superior Court on such appeal the presiding judge, after reviewing the history of the case following the first trial in general county court, and prior to the second trial, states that: \\u201cUpon the second trial in the county court, the jury was permitted to take into consideration the value of the board and lodging for plaintiff and her two daughters in answering the issue as to damage, and the position of plaintiff was that she was entitled to recover damages for the breach of the contract for the entire five-year period of the lease in question, and that she was thereby not limited in her recovery to the percentage due her under the contract to the date of the institution of the action; yet the court, while it adopted this theory of the plaintiff, at the same time submitted an issue as to the amount the plaintiff had obtained by way of compensation from other employment and limited it to the period between the date of the breach of the contract and the date of the issuing of summons.\\n\\u201cUpon the argument of the appeal before the Superior Court counsel for the plaintiff stated that the contract between the plaintiff and defendant is not one of partnership, but is one of employment.\\n\\u201cUpon due consideration, the court is of the opinion, in the first place, that the instructions upon the issues submitted were repugnant to each other; and, in the second place, that the court was in error in permitting the plaintiff to recover damages for the period subsequent to the institution of the action, to wit: July 8, 1937, it being the opinion of the court that the plaintiff was limited as a matter of law to such damages as she might establish prior to said date.\\n\\u201cThe court, in entering this judgment, does not make any adjudication with regard to the rights of the parties subsequent to the date of the issuing of the summons.\\u201d\\nThereupon the judge ruled upon each of the exceptions assigned, and, after sustaining seventy-one of them, entered judgment (a) that the verdict on the first issue, to wit: \\u201cWhat damage, if any, is plaintiff entitled to recover of defendant ? Answer: $4,000,\\u201d shall be set aside for errors committed by the trial court in the trial of the cause as covered by the exceptions set out in the judgment; (b) that the verdict on the second issue, to wit: \\u201cWhat amount bad plaintiff obtained by way of other employment subsequent to the breach of the contract, and prior to the 8th day of July, 1937? Answer: $400 shall not be set aside, but shall remain in full force and effect as the verdict of the jury, for that there was no reversible error committed in the trial relating to the submission of said issue, and for the further reason that said issue was answered against plaintiff, and plaintiff has not appealed to this court, and defendant has not asked that the answer to this issue be set aside.\\u201d\\nThereupon the court ordered the ease to be remanded to the general county court for a new trial \\u201cin conformity with this judgment on one issue, namely: \\u2018What damage, if any, is the plaintiff entitled to recover of defendant in conformity with the judgment of this court?\\u2019 \\u201d\\nPlaintiff appeals therefrom to the Supreme Court, and assigns error.\\nIrwin Monh and Weaver \\u2022& Miller for plaintiff, appellant.\\nDan X. Moore, B. 0. Jones, and J ones, Ward & J ones for defendant, appellee.\", \"word_count\": \"3488\", \"char_count\": \"19479\", \"text\": \"Winborne, J.\\nIn the main these two questions present the assignments of error debated on this appeal:\\n1. Where on defendant's appeal thereto from judgment of general county court the Superior Court sustains the verdict on one, and sets aside the verdict, and orders' a new trial on the other of two issues with respect to separable elements of damage for breach of contract submitted to and answered by the jury in favor of plaintiff in general county court, and the judgment of Superior Court is affirmed on appeal to Supreme Court, is the judgment res judicata of the matters to which the issue, on which the verdict is sustained, relates?\\n2. Where plaintiff, who has contract of employment for a period of five years at compensation payable in installments, institutes an action for the recovery of damages for breach of such contract before the expiration of the period of time covered thereby, is the recovery limited to damages to date of institution of action?\\nWe are of opinion and hold that these questions are properly answered in the affirmative.\\n1. The first question, predicated upon a group of assignments of error, is succinctly raised by the ruling of the judge of Superior Court in sustaining exception by defendant to the refusal of general county court to instruct the jury, as requested, \\\"that in considering what damages, if any, the plaintiff is entitled to, it will not take into consideration any damages for board and lodging for the plaintiff and her two daughters for the reason that it has heretofore been determined in this action by a jury verdict, that the plaintiff was not entitled to recover therefor.\\\" This request for instruction is based upon the judgment of the Superior Court sustaining the verdict on the fourth issue in former appeal from the general county court.\\nThe Superior Court, as it relates to this action, is a court of appellate jurisdiction of all appeals from the general county court for errors assigned in matters of law only, and may either affirm or modify the judgment of the general county court or remand the cause for a new trial. From the judgment of the Superior Court an appeal may be taken to the Supreme Court, as is provided by law. Public Laws 1923, ch. 216, sec. 18, incorporated in Michie's Code of 1935, as sec. 1608 (cc), as amended by Public Laws 1933, ch. 109. See Jenkins v. Castelloe, 208 N. C., 406, 181 S. E., 266; Smith v. Winston-Salem, 189 N. C., 178, 126 S. E., 514; Davis v. Wallace, 190 N. C., 543, 130 S. E., 176.\\n\\\"A decision by the Supreme Court on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal;\\\"- \\u2014 headnote epitomizing decision in Harrington v. Rawls, 136 N. C., 65, 48 S. E., 57, cited in numerous decisions of this Court, among which are these: Nobles v. Davenport, 185 N. C., 162, 116 S. E., 407; Ray v. Veneer Co., 188 N. C., 414, 124 S. E., 756; Strunks v. R. R., 188 N. C., 567, 125 S. E., 182; Davis v. Lumber Co., 190 N. C., 873, 130 S. E., 156; Mfg. Co. v. Hodgins, 192 N. C., 577, 135 S. E., 466; Moses v. Morganton, 195 N. C., 92, 141 S. E., 484; Mayo v. Comrs., 196 N. C., 15, 144 S. E., 925; Ingle v. Green, 199 N. C., 149, 154 S. E., 83; S. c., 202 N. C., 116, 162 S. E., 476; Masten v. Texas Co., 204 N. C., 569, 169 S. E., 142; Power Co. v. Yount, 208 N. C., 182, 179 S. E., 804; Betts v. Jones, 208 N. C., 410, 181 S. E., 334; Ferrell v. Ins. Co., 208 N. C., 420, 181 S. E., 327; Groome v. Statesville, 208 N. C., 815, 182 S. E., 657; Dixson v. Realty Co., 209 N. C., 354, 183 S. E., 382; McGraw v. R. R., 209 N. C., 432, 184 S. E., 31; Stanback v. Haywood, 213 N. C., 535, 196 S. E., 844.\\nIf on the first trial in the present action plaintiff considered that her rights would be prejudiced by the submission of a separate issue with respect to her claim for damages for board for herself and two children, she should have objected and preserved exception to the submission of it and appealed. But having failed to so object and appeal, if there were error in the judgment of the Superior Court in sustaining the verdict on the fourth issue, the remedy then opened to plaintiff was by exception and appeal to the Supreme Court. Then, if there were error in the decision of the Supreme Court, the remedy was solely by application for a rehearing to correct such error. Failing in or to do this, the judgment is res judicata .and binding in subsequent proceedings in the trial court and on subsequent appeals.\\nReference, however, to the record and to brief of plaintiff on the former appeal reveals that while exception is taken to the judgment, it is referred to as formal, and the ruling of the judge below in sustaining the verdict on the fourth issue is not pressed for error.\\n2. The second question, likewise founded upon series of assignments of error, is raised in summary by the rulings of the judge of Superior Court in sustaining defendant's exceptions to the refusal of the general county court to instruct the jury as requested in these two special instructions: (a) \\\"That when the plaintiff and defendant entered into the contract as set out in the complaint that they agreed upon what amount the plaintiff should receive for her services or her work in connection with said business, so the court charges the jury that in considering the question of damages it cannot allow anything in excess of 3 % on the gross receipts which were received in said business, or which would have been received had the plaintiff and defendant continued to operate under the contract as originally entered into, up to and including July 8, 1937, the date on which this action was instituted;\\\" and further, (b) \\\"that the value of the contract to the plaintiff was the sum that she could reasonably expect to obtain from it after the contract was entered into, and the jury cannot, in passing upon any damage, take into consideration any values which it may be contended that the contract had outside of those specified in the contract itself, to wit: 3^2% on the gross receipts prior to July 8, 1937.\\\"\\nWith respect to the question here presented, plaintiff contends that the contract is for the entire five-year period of the lease in question, and that she is not limited in her recovery to the percentage due her under the contract to the date of the institution of the action. On the other hand, the defendant contends that the contract is one of employment and, while it may be entire, the services are to be paid for by installments at stated intervals, and the plaintiff, having elected to sue before the expiration of the life of the contract, is limited in her recovery of damages to the time of the bringing of the suit.\\nIn. accepting the latter view, the court seems to have followed well established law in this State. In Smith v. Lumber Co., 142 N. C., 26, 54 S. E., 788, the Court said: \\\"When the contract is entire and the services are to be paid for by installments at stated intervals, the servant or employee who is wrongfully discharged has the election of four remedies : (1) He may treat the contract as rescinded by the breach, and sue immediately on a quantum meruit for the services performed; but in this case he can recover only for the time he actually served. (2) He may sue at once for the breach, in which case he can recover only his damages to the time of bringing suit. (3) He may treat the contract as existing and sue at each period of payment for the salary then due. (We do not consider tbe right to proper deduction in this case, as it is not now presented.) (4) He may wait until tbe end of tbe contract period, and tben sue for tbe breach, and tbe measure of damages will be prima facie tbe salary for tbe portion of tbe term unexpired when be was discharged, to be diminished by such sum as be has actually earned or might have earned by a reasonable effort to obtain other employment.\\\"\\nIn tbe present case plaintiff has elected to pursue tbe second remedy and is limited in recovery of damages to date of institution of tbe action.\\nWe have carefully reviewed and considered all other exceptions assigned as error in tbe record on this appeal, and find no cause to disturb tbe judgment of tbe Superior Court from which tbe appeal is taken.\\nAffirmed.\"}" \ No newline at end of file diff --git a/nc/8613540.json b/nc/8613540.json new file mode 100644 index 0000000000000000000000000000000000000000..ca397268bfcab31f7f9d0e473e2738c9c1b3f08e --- /dev/null +++ b/nc/8613540.json @@ -0,0 +1 @@ +"{\"id\": \"8613540\", \"name\": \"PENN DIXIE LINES, INC., v. JONAS GRANNICK\", \"name_abbreviation\": \"Penn Dixie Lines, Inc. v. Grannick\", \"decision_date\": \"1953-11-11\", \"docket_number\": \"\", \"first_page\": \"552\", \"last_page\": \"559\", \"citations\": \"238 N.C. 552\", \"volume\": \"238\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:58:05.922523+00:00\", \"provenance\": \"CAP\", \"judges\": \"WiNBORNE, J., dissents.\", \"parties\": \"PENN DIXIE LINES, INC., v. JONAS GRANNICK.\", \"head_matter\": \"PENN DIXIE LINES, INC., v. JONAS GRANNICK.\\n(Filed 11 November, 1953.)\\n1. Compromise and Settlement \\u00a7 1\\u2014 .\\nThe law favors the settlement of controversies out of court and encourages such action by decreeing that an offer to compromise the controversy involved in a litigation is inadmissible in evidence.\\n2. Compromise and Settlement \\u00a7 2\\u2014 .\\nAn extrajudicial compromise settlement made by a. party with one person cannot .be shown in evidence in a subsequent lawsuit arising out of the same transaction between such party and Another person.\\n3. Pleadings \\u00a7 .31\\u2014\\nAn allegation of fact is irrelevant and ought to be stricken from the pleading- on motion if the fact pleaded is not legally receivable in evidence on the trial.\\n4. Same\\u2014\\nA motion to strike .an allegation from a pleading for irrelevancy admits, for the purpose of the motion, the truth of all facts well pleaded in the allegation, and any inferences of fact deducible therefrom, but it does not admit conclusions of the pleader.\\n5. Compromise and Settlement \\u00a7 2\\u2014\\nA compromise agreement is conclusive between the parties as to the matters compromised, but it does not extend to matters not included within its terms. \\u2022 ..\\n6. Compromise and Settlement \\u00a7 2: Pleadings \\u00a7 31: Automobiles \\u00a7 18a\\u2014 Settlement between drivers and guests does not preclude drivers from litigating between themselves liability for the collision.\\nWhere a collision between the motor vehicle of plaintiff and the motor vehicle of defendant results in personal injuries to third persons riding in the motor vehicle of defendant, and the plaintiff and defendant, acting in concert, execute an extrajudicial compromise settling the claims made against them by the injured passengers, the compromise settlements do not bar a subsequent action in negligence by plaintiff against the defendant for damage done to the plaintiff\\u2019s motor vehicle .in the same collision, and the denial of plaintiff\\u2019s motion to strike the paragraph of the answer setting forth the compromise agreements as a defense is prejudicial error.\\n7. Parties \\u00a79: Insurance \\u00a7 51:, Pleadings \\u00a7 31\\u2014\\nIn an action to recover damages to plaintiff\\u2019s vehicle resulting from a collision with a vehicle of defendant, allegations to the effect that,plaintiff had been paid in\\u2018full by its insurer for such damages are relevant, since in such instance plaintiff is not entitled to maintain the cause of action.'\\n8. Pleadings \\u00a7 31\\u2014\\nDefendant alleged as a defense that plaintiff had been paid by its insurer in full for the loss in suit. The court, solely on the basis of a mere conclusory affidavit filed by plaintiff, struck this defense from the answer on the ground that it constituted a sham defense within the purview of G.S. 1-126. Held: The striking of the defense was error, since the record does not indicate in any way that the defense was a mere pretense set up by defendant in bad faith and without color of fact.\\nWinbokne, J., dissents.\\nAppeals by plaintiff and defendant from Burgwyn, Special Judge, at tbe March Term, 1953, of IIakstett.\\nCivil action to recover damages for actionable negligence beard upon motion to strike allegations from answer.\\nEllis Avenue, which runs north and south, and West Broad Street, which runs east and west, intersect and cross each other in the corporate limits of the Town of Dunn. On 17 February, 1952, a Ford tractor, which was owned by Clark P. Craumer and operated by William J. Eeiehert, pulled a loaded trailer belonging to the plaintiff Penn Dixie Lines, Inc., southward along Ellis Avenue. The tractor-trailer combina tion collided with a west-bound Dodge automobile owned and operated by tbe defendant Jonas Grannick at tbe intersection of Ellis Avenue and West Broad Street. Tbe collision damaged tbe tractor, tbe trailer, tbe cargo of tbe trailer, and tbe Dodge car, and injured Bernard Sabs and Morton Vogelson, wbo were riding in tbe Dodge car.\\nOn 3 November, 1952, tbe plaintiff brought tbis action against tbe defendant to recover compensation for tbe loss suffered by it on account of tbe damage to tbe trailer and its cargo. Tbe complaint charges in detail that such damage was occasioned by tbe actionable negligence of tbe defendant in tbe management of bis automobile.\\nThe defendant answered, denying actionable negligence on bis part and pleading contributory negligence on tbe part of the driver of tbe tractor-trailer combination. Tbe answer pleads additionally tbis new matter :\\n1. \\u201cFor a third further answer and defense, defendant alleges: (1) That at tbe time of tbe aforesaid motor vehicle collision two passengers, Morton Vogelson and Bernard Saks, were riding in tbe automobile of tbe defendant; that said passengers sustained severe personal injuries in said collision as a result of which each of them made claim against tbe plaintiff, Penn Dixie Lines, Inc., and tbis defendant for damages on account of said personal injuries; that thereafter representatives of tbe plaintiff and tbe defendant negotiated settlements of said claims with said claimants in tbe State of New York where said claimants resided, a portion of tbe consideration for said settlements being paid on behalf of tbe plaintiff and tbe remaining portion being paid on behalf of tbis defendant; that said claimants thereupon signed full releases absolving the plaintiff and tbis defendant-from any further liability on account of said injuries; and that if tbis defendant was ever legally liable to tbis plaintiff by reason of any of tbe matters set forth in tbe complaint, which is again hereby expressly denied, said releases completely terminated any such liability and tbe same are hereby pleaded in bar of any recovery by tbe plaintiff herein.\\u201d\\n2. \\u201cFor a fourth further answer and defense, defendant alleges: (1) Upon information and belief that tbe plaintiff was insured with respect to tbe damages alleged in tbe complaint in a policy of motor vehicle collision insurance written by State Automobile Insurance Association, an insurance company authorized and existing under and by virtue of tbe laws of tbe State of Indiana; that pursuant to said policy of insurance, said insurance company lias paid to the plaintiff tbe damages alleged in tbe complaint in tbis action and has in law and by virtue of tbe terms of said insurance policy become subrogated to tbe rights of plaintiff, if any, against tbis defendant. (2) That said insurance company, and not tbe plaintiff, is tbe real party in interest in tbis action and should be made a party plaintiff hereto.\\u201d\\nThe plaintiff moved to strike the third further answer and defense as irrelevant, and the fourth further answer and defense as sham. The motion was accompanied by the ex parte affidavit of an officer of the State Automobile Insurance Association, which contained the conclusory statement that the Association has never paid to the plaintiff the full amount of the damages suffered by it in the collision.\\nOn the hearing of the motion to strike, the presiding judge concluded as a matter of law \\u201cthat the allegations contained in the third further answer and defense are relevant\\u201d and declined to strike them from the answer. The plainfiff excepted and appealed, assigning this ruling as error.\\nThe presiding judge found as a fact on the basis of the affidavit of the officer of the State Automobile Insurance Association \\u201cthat the allegations contained in the fourth further answer and defense are untrue,\\u201d and struck them from the \\u2022 answer. The defendant excepted and appealed, assigning this ruling as error.\\nTalmadge L. Narron for plaintiff, appellant and appellee.\\nA. J. Fletcher, F. T. Dupree, Jr., and G. Earl Weaver for defendant, appellant and appellee.\", \"word_count\": \"3125\", \"char_count\": \"18857\", \"text\": \"EkviN, J.\\nInasmuch as the motion to strike the third further answer and defense from the answer is based on its supposed irrelevancy, the plaintiff's appeal presents this question for decision: Where a collision between the motor vehicles of the plaintiff and the defendant results in personal injuries to third persons riding in the motor vehicle of the defendant, and the plaintiff and the defendant, acting in concert out of court, compromise and settle extrajudicial claims made against them by the injured third persons, do the compromise settlements bar a subsequent action in negligence by the plaintiff against the defendant for damage done to the plaintiff's motor vehicle in the same collision ?\\nAlthough actions arising out of motor vehicle collisions are almost as numerous as the \\\"autumnal leaves that strow the brooks in Yallambrosa,\\\" a diligent and protracted search has not unearthed a decision answering this precise question. For this reason, we turn to the authorities summarized below for the solution of this problem.\\n1. The law favors the settlement of controversies out of court. Patrick v. Bryan, 202 N.C. 62, 162 S.E. 207; Armstrong v. Polakavetz, 191 N.C. 731, 133 S.E. 16; 11 Am. Jur., Compromise and Settlement, section 4. It encourages such action by securing to every man the opportunity to negotiate for the purchase of his peace without prejudice to his rights. 31 C.J.S., Evidence, section 285. To this end, the law declares that evidence of an offer to compromise the controversy involved in a litigation is inadmissible. Merchant v. Lassiter, 224 N.C. 343, 30 S.E. 2d 217; Stein v. Levins, 205 N.C. 302, 171 S.E. 96; Greensboro v. Garrison, 190 N.C. 577, 130 S.E. 203; Baynes v. Harris, 160 N.C. 307, 76 S.E. 230; Peeler v. Peeler, 109 N.C. 628, 14 S.E. 59; Hughes v. Boone, 102 N.C. 137, 9 S.E. 286; Smith v. Love, 64 N.C. 439; Lucas v. Nichols, 52 N.C. 32; Daniel v. Wilkerson, 35 N.C. 329; Poteat v. Badget, 20 N.C. 349; Michie: The Law of Automobiles in North Carolina, section 277; Stansbury: North Carolina Evidence, section 180; 31 C.J.S., Evidence, section 285.\\n2. Moreover, in North Carolina and the majority of other American jurisdictions, the law decrees that a compromise settlement made by a party with a third person cannot be shown in evidence in a subsequent lawsuit between the party and another person arising out of the same transaction. Snyder v. Oil Co., 235 N.C. 119, 68 S.E. 2d 805; Herring v. Coach Co., 234 N.C. 51, 65 S.E. 2d 505; Sprinkle v. Ponder, 233 N.C. 312, 64 S.E. 2d 171; 31 C.J.S., Evidence, section 292. \\\"The reason for the rule is that the law favors the settlement of controversies out of court, and, if a man could not settle one claim out of court without fear that this would be used in another suit as an admission against him, many settlements would not be made.\\\" Fenberg v. Rosenthal, 348 Ill. App. 510, 109 N.E. 2d 402; Hill v. Hiles, 309 Ill. App. 321, 32 N.E. 2d 933; Powers' Adm'r v. Wiley, 241 Ky. 645, 44 S.W. 2d 591.\\n3. An allegation of fact is irrelevant and ought to be stricken from a pleading on motion if the fact pleaded is not legally receivable in evidence on.the trial. Pemberton v. Greensboro, 203 N.C. 514, 166 S.E. 396; Johnson v. Herring, 89 Mont. 156, 295 P. 1100.\\n4. A motion to strike an allegation from a pleading for irrelevancy admits, for the purpose of the motion,.the truth of all facts well pleaded in .the allegation, and any inferences fairly deducible from them. But it does not admit the conclusions of the pleader. Kurtzon v. Kurtzon, 395 Ill. 73, 69 N.E. 2d 341; 71 C.J.S., Pleading, section 451.\\n5. Compromise agreements are governed by the legal principles applicable to contracts generally. As a consequence, a compromise agreement is conclusive between the parties as to the matters compromised. Snyder v. Oil Co., supra; Sutton v. Robeson, 31 N.C. 380; 11 Am. Jur., Compromise and Settlement, section 25. But it does not extend to matters not included within its terms. 15 C.J.S., Compromise and Settlement, section 27.\\nThe task of applying these principles to the plaintiff's appeal must now be performed.\\nThe third further answer and defense affords no factual foundation whatever for any contention that the plaintiff and the defendant actually compromised the controversy involved in this action. When that portion of tbe answer is stripped of the conclusions of the pleader, it discloses that the plaintiff and the defendant merely purchased from Saks and Yogelson such peace as Saks and Yogelson could sell.\\nThis being true, the allegations relating to the extrajudicial settlements of the plaintiff and the defendant with Saks and Yogelson have no proper place in the answer in this case, unless logic is willing to accept the plaintiff's participation in the settlements as an implied admission on its part of at least partial legal responsibility for the damage to its property, and unless the law is willing to accept the defendant's participation in the settlements as a sufficient reason for abrogating the salutary principle of public policy which favors and encourages the settlement of controversies out of court.\\nLogic would ignore the facts of life if it accepted the plaintiff's participation in the extrajudicial settlements with Saks and Yogelson as an implied admission of legal culpability on its part. It costs time, trouble, and money to defend claims, whether well founded or not, and prudent persons constantly purchase their peace against unfounded claims to avoid these outlays. Georgia Ry. & Electric Co. v. Wallace & Co., 122 Ga. 547, 50 S.E. 480. Dean Wigmore had this common knowledge in mind when he made this observation: \\\"The true reason for excluding an offer of compromise is that it does not ordinarily proceed from and imply a belief that the adversary's claim is well founded, but rather a belief that the further prosecution of that claim, whether well founded or not, would in any event cause such annoyance as is preferably avoided by the payment of the sum offered; in short, the offer .implies merely a desire for peace, not a concession of wrong done.\\\" Wigmore on Evidence (2d Ed.), section 1061. The validity of our conclusion in respect to the probative value of the plaintiff's settlements with the third persons is not impaired in any wise by the defendant's participation in the settlements. This is true because we cannot look to the conduct of the defendant for implied admissions of the plaintiff.\\nThe relevant authorities make it crystal clear that the sound principle of public policy which favors settlement of controversies out of court would have precluded the defendant from invoking the settlements with Saks and Yogelson as a defense to the cause of action stated in the complaint if the settlements had been made by the plaintiff alone. We have cudgeled our brains and searched the authorities to ascertain whether there is any valid reason why the defendant's participation in the settlements with the third persons should set at naught this sound principle of public policy in the case at bar. We have discovered no such reason. Indeed, it seems to us that the ever increasing number of motor vehicle collisions with their resultant multiple injuries rather demands that the courts enforce without relaxation in cases like this the salutary rule that the law favors the extrajudicial settlement of controversies.\\nIt is a far cry from the question arising on the plaintiff's appeal to the matters under review in the portions of the opinions in Coach Co. v. Stone, 235 N.C. 619, 70 S.E. 2d 673; Snyder v. Oil Co., supra, and Herring v. Coach, Co., supra, invoked by the defendant.\\nThe compromise of the plaintiff and the defendant with Saks and Yogelson did not include the controversy involved in the claim for dam- ' ages made by the plaintiff against the defendant in this case; whereas, the extrajudicial compromise between the Kenan Oil Company and Mary P. Dixon adjusted the exact controversy involved in the claim for contribution made by the Kenan Oil Company against Mary P. Dixon in the Snyder case, and the judicial compromise between the Queen City Coach Company and Mabel Spivey, Administratrix of Paul Spivey, settled the identical controversy involved in the claim for contribution made by the Queen City Coach Company against Mabel Spivey, Admin-istratrix of Paul Spivey, in the Herring case. Moreover, the settlements under consideration in the instant action were made by contract out of court, and did not involve any judicial adjudication in respect to the claim of the plaintiff against the defendant; whereas, the settlements under scrutiny in the Snyder and Stone cases were made by consent judgments in court, and involved judicial adjudications establishing the invalidity of the claim of the Queen City Coach Company against Mabel Spivey, Administratrix of Paul Spivey, and the claim of the Lumberton Coach Company against H. W. Stone.\\nWhat has been said compels the conclusion that the third further answer and defense should have been stricken from the answer for irrelevancy. It is obvious, we think, that its retention in the answer is likely .to .cause harm or injustice to the plaintiff. Hinson v. Britt, 232 N.C. 379, 61 S.E. 2d 185.\\nThis brings us to the appeal of the defendant. When he struck the fourth further answer and defense from the answer, the presiding judge purported to act under the statute now codified as G.S. 1-126, which specifies that \\\"Sham and irrelevant answers and defenses may be stricken out on motion, upon such terms as the court may in its discretion impose.\\\"\\nThe fourth further answer and defense alleges, in substance, that the plaintiff insured its trailer and cargo against loss by collision with a specified insurance company; that the insurance company paid the plain'tiff in full for the loss suffered by it in the collision mentioned in the complaint; and that in consequence the insurance company is the sole owner of the cause of action, which the plaintiff is attempting to assert against the defendant.\\nThese allegations are certainly relevant, for they undoubtedly state a defense to the cause of action alleged in the complaint. Burgess v. Trevathan, 236 N.C. 157, 72 S.E. 2d 231.\\nThe presiding judge found as a fact upon a mere conclusory affidavit submitted by the plaintiff \\\"that the allegations contained in the fourth further answer and defense are untrue,\\\" and struck the fourth further answer and defense from the answer on the ground that it constituted a sham defense within the purview of the statute. The presiding judge erred to the defendant's prejudice in thus rejecting the fourth further answer and defense. This is necessarily so because the record does not indicate in any way that this defense is a mere pretense set up by the defendant in bad faith and without color of fact. Boone v. Hardie, 83 N.C. 470. See, also, in this connection: Broocks v. Muirhead, 221 N.C. 466, 20 S.E. 2d 273.\\nThis cause is remanded to the Superior Court of Harnett County for further proceedings agreeable to this opinion.\\nOn plaintiff's appeal, error and remanded.\\nOn defendant's appeal, error and remanded.\\nWiNBORNE, J., dissents.\"}" \ No newline at end of file diff --git a/nc/8616868.json b/nc/8616868.json new file mode 100644 index 0000000000000000000000000000000000000000..df39269bb0814b8edb5991f6085f6dd027589db6 --- /dev/null +++ b/nc/8616868.json @@ -0,0 +1 @@ +"{\"id\": \"8616868\", \"name\": \"STATE v. LUTHER MESSIMER\", \"name_abbreviation\": \"State v. Messimer\", \"decision_date\": \"1953-04-29\", \"docket_number\": \"\", \"first_page\": \"617\", \"last_page\": \"619\", \"citations\": \"237 N.C. 617\", \"volume\": \"237\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T18:35:28.502670+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. LUTHER MESSIMER.\", \"head_matter\": \"STATE v. LUTHER MESSIMER.\\n(Filed 29 April, 1953.)\\nAssault \\u00a7 14b\\u2014\\nWhere defendant in a prosecution for assault relies upon a plea of self-defense, an instruction to the effect that defendant would be guilty if he struck the prosecuting witness and committed an assault upon him as defined by the court, without reference or qualification as to his plea, must be held for prejudicial error notwithstanding later instructions pertaining to the law of self-defense, especially when the erroneous instruction is thereafter again repeated.\\nAppeal by defendant from Crisp, Special Jxidge, at 19 January, 1953, Extra Criminal Term, of MeckxeNbubg.\\nCriminal prosecution upon warrant issued out of the Recorder\\u2019s Court of the city of Charlotte, North Carolina, charging that Luther Messimer \\u201cwith force and arms . . . did willfully, maliciously and unlawfully commit an assault on the person of Garland Pridgen with hands and fists where serious injury was inflicted on Garland Pridgen a broken jaw . . .,\\u201d tried in Superior Court on appeal thereto from judgment of Recorder\\u2019s Court on plea entered, and verdict found.\\nIn Superior Court defendant pleaded not guilty, and upon trial de no.vo: The State offered evidence tending to support the charge against defendant, as alleged in tbe warrant. On the other hand, defendant offered evidence that he struck Garland Pridgen under circumstances detailed, and in defense of himself.\\nThe jury returned a verdict of \\u201cGuilty of simple assault, inflicting serious damage.\\u201d\\nThereupon the judge presiding entered judgment \\u201cthat the defendant serve a term of eighteen (18) months in the common jail of Mecklenburg County, to be assigned to work the roads, under the supervision of the State Highway and Public Works Commission. This sentence is suspended upon condition that the defendant pay the costs of this action, and upon the further condition that the defendant pay into the Clerk of Court\\u2019s office (1) the sum of $700 to compensate the prosecuting witness (Garland Pridgen) for loss of time from his work; (2) $125.00 to cover hospital expenses in connection with having the dental surgeon treat his broken jaw, and (3) $100.00 to take care of future treatments that will be necessary for him to have \\u201cthe total amounting to $925.00\\u201d; and the \\u201cjudgment is suspended upon condition that the defendant shall be of good behavior and not violate any of the laws of the State of North Carolina for a period of five (5) years from the date of this judgment. Capias to issue, upon motion of the Solicitor, if it shall be made to appear that the defendant has failed to comply with the terms of this judgment.\\u201d\\nDefendant excepted and appeals to Supreme Court, and assigns error.\\nAttorney-General McMullan, Assistant Attorney-General Bruton, and Charles G. Powell, Jr., Member of Staff, for the State.\\nMarvin Lee Hitch for defendant, appellant.\", \"word_count\": \"680\", \"char_count\": \"4160\", \"text\": \"WiNBORNE, J.\\nDefendant presents on this appeal various assignments of error, some of which reveal prejudicial error. Of these-it is sufficient to point to Exception 5.\\nIn the course of his charge to the jury the trial judge instructed in substance that if the jury find from the evidence beyond a reasonable doubt that the defendant struck the prosecuting witness with his fist, and committed an assault upon him, by so striking him, as the court has defined an assault to mean, it would become the duty of the jury to return a verdict of guilty. The instruction is a complete paragraph without reference or qualification as to the plea of self-defense relied upon by defendant. It is misleading to the jury, and prejudicial to defendant. It is true, however, that later in the charge the court gave instructions pertaining to the law of self-defense. Yet there is exception to the sufficiency of such instruction. But even if this latter exception be not well founded, the court immediately after adverting to the law' of self-defense repeated, in brief, the instruction to which exception 5 relates.\\nSince there must be a new trial for error pointed out, other assignments of error need not be considered. The matters to which they relate may not recur upon another trial.'\\nNew trial.\"}" \ No newline at end of file diff --git a/nc/8617486.json b/nc/8617486.json new file mode 100644 index 0000000000000000000000000000000000000000..b6588f7a0558aacd261c2748c999dacc64812812 --- /dev/null +++ b/nc/8617486.json @@ -0,0 +1 @@ +"{\"id\": \"8617486\", \"name\": \"ELBERT HERRING v. QUEEN CITY COACH COMPANY and MRS. MABEL SPIVEY, Administratrix of PAUL SPIVEY, Deceased\", \"name_abbreviation\": \"Herring v. Queen City Coach Co.\", \"decision_date\": \"1951-06-07\", \"docket_number\": \"\", \"first_page\": \"51\", \"last_page\": \"54\", \"citations\": \"234 N.C. 51\", \"volume\": \"234\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:16:07.142442+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ELBERT HERRING v. QUEEN CITY COACH COMPANY and MRS. MABEL SPIVEY, Administratrix of PAUL SPIVEY, Deceased.\", \"head_matter\": \"ELBERT HERRING v. QUEEN CITY COACH COMPANY and MRS. MABEL SPIVEY, Administratrix of PAUL SPIVEY, Deceased.\\n(Filed 7 June, 1951.)\\n1. Judgments \\u00a7 33b\\u2014\\nA consent judgment, as well as a judgment on trial of issues, is res judicata as between the parties upon all matters embraced therein.\\n2. Same: Torts \\u00a7 6: Pleadings \\u00a7 31 \\u2014 Consent judgment adjudicating contributing negligence may be pleaded in bar to right of contribution.\\nIn an action against a bus company, consent judgment was entered in favor of the administratrix of the driver of the car involved in the collision, in which action the issue of intestate\\u2019s contributory negligence was raised by the pleadings. Consent judgments were also entered in her favor individually and as next friend of a passenger in the car. In a later action involving the same collision instituted by a passenger in the bus against the bus company, it sought to join the administratrix on the theory that her intestate was a joint tort-feasor. Held: The administra-trix was entitled to plead the consent judgment in her favor as adminis-tratrix in bar to the right of contribution, since it adjudicated the question of intestate\\u2019s contributing negligence as between the parties, but the other consent judgments have no proper relation to the bus passenger\\u2019s action, and the administratrix\\u2019 allegations setting them up should have been stricken on motion.\\nAppeal by defendant Coacb Company from Stevens, J., September Term, 1950, of Durham.\\nModified and affirmed.\\nPlaintiff instituted this action to recover damages for injury sustained while a passenger on the bus of the defendant Coach Company. The injury was alleged to have resulted from the negligence of the defendant Coach Company in driving its bus into the automobile of Paul Spivey.\\nDefendant Coach Company in its answer denied negligence on its part, and alleged that the negligence of Paul Spivey was the sole proximate cause of the collision and consequent injury to plaintiff. It further alleged that if the answering defendant be held negligent in any respect then Paul Spivey\\u2019s negligence, operating jointly and concurrently, was a contributing cause of the injury, and defendant prayed in event of recovery against it that it have judgment against Mabel Spivey, Administra-trix of Paul Spivey (now made an additional party defendant) for contribution under G.S. 1-240.\\nIn answer to the allegations of the cross-action against her, Mabel Spivey, Administratrix of Paul Spivey, denied that Paul Spivey was negligent as alleged, and as a further defense alleged that she as adminis-tratrix of Paul Spivey, had instituted suit against defendant Coach Company for damages for his wrongful death resulting from the collision described in the complaint, and that defendant Coach Company had answered in that suit denying its negligence and setting up as a defense contributory negligence on the part of Paul Spivey; that thereafter judgment by consent was rendered against the defendant adjudging that Mabel Spivey, Administratrix of Paul Spivey, recover of defendant $4,000 damages in that suit.\\nMabel Spivey, Administratrix, alleged also that as growing out of the collision referred to she individually and as next friend of Linda Darnell Spivey bad sued tbe defendant Coacb Company for damages for personal injuries caused by tbe negligence of tbe defendant Coacb Company, and judgment in eacb case was rendered against tbe defendant. Sbe pleads these judgments as res juclicaia and a bar to defendant\\u2019s cross-action against ber for contribution on allegations tbat Paul Spivey was a joint tort-feasor.\\nDefendant Coacb Company moved to strike from tbe further answer of Mabel Spivey, Administratrix, such portions as referred to these judgments, particularly paragraphs 1, 2, 3 and 4 and exhibits A, B and 0. This motion was denied and defendant Coacb Company appealed.\\nFuller, Beade, TJmstead Fuller, A. H. Graham, Jr., for defendant Mrs. Mabel Spivey, Administratrix, appellee.\\nR. M. Gantt for defendant Queen City Coach Company, appellant.\", \"word_count\": \"1418\", \"char_count\": \"8624\", \"text\": \"Devin, J.\\nTbe question presented by tbe appeal is tbe propriety of tbe ruling below denying tbe motion of tbe defendant Coacb Company to strike from tbe answer of tbe additional defendant Mabel Spivey tbe allegations which refer to a previous judgment rendered in ber favor as administratrix of Paul Spivey and against defendant Coacb Company for damages for the wrongful death of Paul Spivey as result of tbe collision between bis automobile and defendant's bus. This judgment is pleaded now as res judicata and determinative of tbe question of tbe negligence of Paul Spivey in causing tbe collision, for tbe reason tbat tbe question of bis contributory negligence having been an issue in tbat suit and by tbe judgment decided adversely to tbe defendant, could not again be set up in a cross-action for contribution between tbe same parties.\\nTbe rule seems to have been established that when in a cross-action by tbe defendant against an additional defendant for contribution as joint tort-feasor, it appears that in a previous action between them it bad been determined tbat the additional defendant bad not been contributorily negligent, tbe question could not again be raised in a suit between tbe same parties. Tarkington v. Printing Co., 230 N.C. 354, 53 S.E. 2d 269; Cannon v. Cannon, 223 N.C. 664, 28 S.E. 2d 240; Current v. Webb, 220 N.C. 425, 17 S.E. 2d 614; 2 Freeman on Judgments, sec. 670. In tbe opinion in tbe Tarhington case, where tbe facts were similar, Chief Justice Stacy stated tbe applicable rule as follows: \\\"Tbe prior suit as between tbe then parties litigant determined tbe question whether tbe driver of tbe automobile was contributorily negligent or a joint tort-feasor with tbe owner and driver of tbe truck in bringing about tbe collision. Hence, as between tbe parties there litigant, this matter would seem to be res judicata.\\\"\\nThe defendant Coach Company, however, contends the rule stated in Tarkington v. Printing Company, supra, was predicated on a finding by the jury on issue submitted that the driver of the automobile was not guilty of contributory negligence, and this rule should not be applied when the judgment was by consent. True, the judgment set up here was a consent judgment, but it does appear that in the former suit this defendant pleaded as an affirmative defense the contributory negligence of Paul Spivey, and the judgment adjudged that plaintiff recover of the defendant the sum of $4,000 in the suit for the wrongful death of Paul Spivey. There were no reservations in the judgment, and, nothing else appearing, this judgment constitutes a final determination of the issues raised by the pleadings. Jenkins v. Jenkins, 225 N.C. 681 (684), 36 S.E. 2d 233; Jefferson v. Sales Corp., 220 N.C. 76, 16 S.E. 2d 462; Stancil v. Wilder, 222 N.C. 706, 24 S.E. 2d 527. A judgment for the plaintiff under these circumstances without qualification or reservation would necessarily dispose adversely of an affirmative defense pleaded in bar by the defendant. 31 A.J. 107.\\nThe general rule is stated in an elaborate note in 2 A.L.R. 2d 511, as follows: \\\"As a general proposition, it is well settled that a valid judgment or decree entered by agreement or consent operates as res judicata, to the same extent as a judgment or decree rendered after answer and contest, and is binding and conclusive upon the parties, and those in privity with them.\\\" It was said in Law v. Cleveland, 213 N.C. 289, 195 S.E. 809, \\\"It is well settled that a consent judgment is just as valid and binding as a judgment rendered after trial of a cause.\\\" Simmons v. McCullin, 163 N.C. 409, 79 S.E. 625; Lalonde v. Hubbard, 202 N.C. 771, 164 S.E. 359; Gibson v. Gordon, 213 N.C. 666, 197 S.E. 135.\\nThis rule, however, would not apply here to the consent judgments entered in the suits against the defendant by Mabel Spivey individually, or as next friend of Linda Darnell Spivey, as it does not appear that they were parties to the suit by the personal representative of Paul Spivey, or that his contributory negligence was at issue in those suits; nor is contribution now sought from them as joint tort-feasors. Those suits do not seem to have any proper relation to the present action.\\nThe court properly declined to allow the motion of defendant Coach Company to strike the first paragraph of the further answer and defense of Mabel Spivey, Administratrix, but the judgment should be modified to sustain this defendant's motion to strike paragraph 2 thereof and exhibits B and C which were made parts of this paragraph.\\nAs thus modified the judgment is\\nAffirmed.\"}" \ No newline at end of file diff --git a/nc/8629021.json b/nc/8629021.json new file mode 100644 index 0000000000000000000000000000000000000000..a64f308501f4a1912de186660a87e2da1af9dd96 --- /dev/null +++ b/nc/8629021.json @@ -0,0 +1 @@ +"{\"id\": \"8629021\", \"name\": \"GEORGE McNABB v. F. G. MURPHY et al.\", \"name_abbreviation\": \"McNabb v. Murphy\", \"decision_date\": \"1934-09-19\", \"docket_number\": \"\", \"first_page\": \"853\", \"last_page\": \"854\", \"citations\": \"207 N.C. 853\", \"volume\": \"207\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:19:37.994913+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GEORGE McNABB v. F. G. MURPHY et al.\", \"head_matter\": \"GEORGE McNABB v. F. G. MURPHY et al.\\n(Filed 19 September, 1934.)\\nAppeal by defendants from Devin, J., at May Term, 1934, of DaRe.\\nCivil action for damages arising out of a collision between plaintiff\\u2019s automobile and a Ford coach, owned by the defendant F. G. Murphy and operated at the time by his minor son, Darrell Murphy. The scene of the injury was Highway No. 34, three miles north of Elizabeth City; the time about 2 :00 a.m., 25 December, 1931.\\nThe liability of E. G. Murphy was made to turn on the \\u201cfamily-purpose\\u201d doctrine, which obtains in this jurisdiction. Grier v. Wood-side, 200 N. O., 759, 158 S. E., 491.\\nUpon denial of liability and issues joined, there was a verdict and judgment for the plaintiff against both of the defendants, from which they appeal, assigning errors.\\nThompson & Wilson for plaintiff.\\nWorth & Horner for defendants.\", \"word_count\": \"200\", \"char_count\": \"1161\", \"text\": \"Pee CueiaM.\\nOn trial, tbe case resolved itself into controverted issues of fact, which the jury found in favor of the plaintiff and against the defendants. The evidence supports the verdict, and no error has been made to appear in the trial of the cause. The judgment, therefore, will be upheld.\\nNo error.\"}" \ No newline at end of file diff --git a/nc/8629145.json b/nc/8629145.json new file mode 100644 index 0000000000000000000000000000000000000000..13e71f2526b399395970693eb09925f5ec3c7e1d --- /dev/null +++ b/nc/8629145.json @@ -0,0 +1 @@ +"{\"id\": \"8629145\", \"name\": \"W. K. JOHNSTON v. PHOENIX UTILITY COMPANY, H. F. LINCOLN, J. R. BASSETT, and G. W. MORGAN\", \"name_abbreviation\": \"Johnston v. Phoenix Utility Co.\", \"decision_date\": \"1929-06-12\", \"docket_number\": \"\", \"first_page\": \"393\", \"last_page\": \"394\", \"citations\": \"197 N.C. 393\", \"volume\": \"197\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T22:03:54.179530+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"W. K. JOHNSTON v. PHOENIX UTILITY COMPANY, H. F. LINCOLN, J. R. BASSETT, and G. W. MORGAN.\", \"head_matter\": \"W. K. JOHNSTON v. PHOENIX UTILITY COMPANY, H. F. LINCOLN, J. R. BASSETT, and G. W. MORGAN.\\n(Filed 12 June, 1929.)\\nRemoval of Causes C b \\u2014 Action alleging joint negligence on part of resident and nonresident defendants is not removable.\\nAn action against a nonresident corporation and its resident superintendent, brought by an employee who alleges that he was under the direction and control of the resident superintendent, and that both defendants were negligent in failing to provide a safe place to work, in changing the method of work without warning the plaintiff, in employing a dangerous method of doing the work, and in failing to warn and instruct the plaintiff as to the change of the method of work: Held, the complaint alleges a joint tort, and the petition of the nonresident defendant for removal to the Federal Court will be denied.\\nCivil actioN, before Harwood, J., at April Term/ 1929,- of Haywood.\\nPlaintiff filed a complaint alleging that on 14. April, 1928, he was injured by the negligence of the defendants while engaged in making-certain excavations and tunnels in and along the banks-of Pigeon River. Plaintiff, who was a foreman, and the men working under him, were removing rocks that had been loosened by blasting,, and the defendants were removing said rocks \\u201csome one hundred feet or more above the place where the plaintiff and the men working under him were engaged in cleaning up.\\u201d The defendants removed said rocks by means of a derrick and scale pans operated by electrical power, and the plaintiff alleged that without signal, notice or warning the defendants changed the method of loading and transferring said rocks and dumped a large quantity of rock inside a coffer dam at a point directly'above the place where plaintiff was working, and these rocks suddenly and with great force rolled down upon the plaintiff, causing serious and' permanent injuries.\\nThe items of negligence set up in the complaint were in substance: that the defendants failed to provide a reasonably safe place for the work, and that without warning the method of doing the work was changed' so that said rocks were dumped at a point on a steep bill directly above the place where the plaintiff was required to work, and that such was a dangerous method; and furthermore, that the defendants failed to give any instruction, notice or warning to the plaintiff, and negligently failed to' provide and use any system of signals to give notice of the intention to change the place of dumping said rocks.\\nPlaintiff further alleged that the individual defendants, including the defendant, Morgan, were citizens and residents of North Carolina.\\nIn apt time the defendant filed a petition for removal, alleging that the defendants, Lincoln and Bassett, were nonresidents of North Carolina, \\u2019 but 'admitting that the defendant, Morgan, was a citizen and resident of North Carolina.\\nThe trial judge upon appeal from the clerk, denied the petition for removal and retained the cause for trial in Haywood County, from which judgment the corporate defendant appealed.\\nAlley. & Alley for plaintiff.\\nIlarhins & Van Winlcle for defendant.\", \"word_count\": \"757\", \"char_count\": \"4626\", \"text\": \"Per Curiam.\\nThe plaintiff alleged a joint cause of action against the corporate defendant and the individual defendants. The petition for remoyal denies that the defendants, Lincoln and Bassett, were citizens of North Carolina, but admits that the defendant, Morgan, was a citizen and resident of North Carolina. Said petition of removal further admits'that said Morgan \\u2022 was a general foreman, and that plaintiff \\\"was.under the direct supervision of the defendant, G. W. Morgan,\\\" and \\\"that it was the duty of the defendant, G. W. Morgan, to transmit to the several foremen on the job such orders and directions as he had received from the general superintendent . as well as to go from.-place to place on said work, see-that the same was progressing according to plans \\u2022 and specifications, and to generally observe and report the progress made thereon.\\\"\\nWhile it is denied that Morgan was actually present at the time plaintiff was injured, it clearly appears that he was, so far as the plaintiff was concerned, the-general representative or alter ego of the corporate, defendant because: he was charged with the duty of delivering instructions to the workmen;;and; of determining whether the work was done,according to plans and specifications. It further appears-that the plaintiff was at the time of his injury under the direct supervision of said defendant Morgan.\\n-Upon this state of facts the judgment is affirmed upon the authority of Givens v. Mfg. Co., 196 N. C., 377.\\nAffirmed.\"}" \ No newline at end of file diff --git a/nc/8630558.json b/nc/8630558.json new file mode 100644 index 0000000000000000000000000000000000000000..cb0738d9f10b05bba557fa7ff18441aa6887fcee --- /dev/null +++ b/nc/8630558.json @@ -0,0 +1 @@ +"{\"id\": \"8630558\", \"name\": \"MARTHA JOSEPHINE O. SEBASTIAN, Executrix, v. HORTON MOTOR LINES\", \"name_abbreviation\": \"Sebastian v. Horton Motor Lines\", \"decision_date\": \"1938-06-15\", \"docket_number\": \"\", \"first_page\": \"770\", \"last_page\": \"775\", \"citations\": \"213 N.C. 770\", \"volume\": \"213\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:05:42.701559+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MARTHA JOSEPHINE O. SEBASTIAN, Executrix, v. HORTON MOTOR LINES.\", \"head_matter\": \"MARTHA JOSEPHINE O. SEBASTIAN, Executrix, v. HORTON MOTOR LINES.\\n(Filed 15 June, 1938.)\\n1. Automobiles \\u00a7 12e \\u2014 Failure to stop before entering through street intersection is not negligence per se.\\nThe failure of defendant\\u2019s driver to come to a complete stop before entering a through street intersection is not negligence per se, but only evidence of negligence to be considered with other facts in the case, such holding being a necessary corollary to the provision of ch. 407, Public Laws of 1937, sec. 120; N. C. Code, 2621 (305), that failure to stop before entering a through street intersection should not be considered contributory negligence per se, but only evidence to be considered with the other facts in the case upon the issue of contributory negligence.\\n2. Negligence \\u00a7\\u00a7 1, 11\\u2014\\nThere is no essential difference between negligence and contributory negligence; contributory negligence being merely the negligence of the plaintiff, who becomes defendant, pro hae vice, upon the issue of contributory negligence.\\n3. Death \\u00a7 8 \\u2014 Court may not instruct jury what the age of testate was or that his life expectancy was a stated number of years.\\nIn an action for wrongful death, an instruction that, according to the mortuary table, testate\\u2019s age being a stated number of years, his life expectancy was a certain number of years, is error as being an expression of opinion by the court as to the sufficiency of the proof of the fact of age and the life expectancy, contrary to C. S., 564.\\n4. Automobiles \\u00a7 12e \\u2014 While motorist may assume that others will stop before entering through street intersection, he must use due care for own safety.\\nWhile a motorist traveling along a through street may assume that other motorists will stop before entering the intersection from a side street, he remains under duty to conform to the rule of the reasonably prudent man, and an instruction that intestate, who was driving along the through street, had a right to assume that defendant\\u2019s truck would stop before entering the intersection from a side street, is held erroneous for failing to further instruct the jury on the issue of contributory negligence as to whether intestate acted with due care in keeping with the exigencies of the occasion upon evidence that the truck had almost passed through the intersection before intestate reached same, and that intestate, notwithstanding, attempted to pass in front of the truck.\\nAppeal by defendant from Bivens, J., at February Term, 1938, of Guilpoed.\\nCivil action to recover damages for death of plaintiff\\u2019s testator, alleged to have been caused by the wrongful act, default or neglect of the defendant.\\nPlaintiff\\u2019s husband and testator, Dr. S. P. Sebastian, was killed in the early morning of 24 June, 1937, at the intersection of Benbow Road and Washington Street, Greensboro, N. 0., when defendant\\u2019s truck and trailer, driven by J. S. Poteat, collided with the Plymouth coupe operated by the deceased.\\nIt is in evidence that by ordinance of the city of Greensboro, passed pursuant to authority contained in the Motor Vehicle Law, \\u201cWashington Street from Macon Street to McConnell Road\\u201d was designated a \\u201cThrough Highway\\u201d with a lawful rate of speed not exceeding thirty miles an hour, and that upon the surface of the traveled portion of Benbow Road immediately before entering the intersection with Washington Street is the word \\u201cS T 0 P\\u201d in large letters painted upon the ground.\\nThe evidence is conflicting as to the speed of both vehicles when they entered the intersection. The defendant\\u2019s driver testified: \\u201cWhen entering that intersection I slowed my truck down to almost a standstill and placed it in second gear and looked in both directions. ... I did not see anything. ... I would not say I came to a complete stop, but almost. At the time I entered the intersection I was not traveling over six or eight miles an hour. . . . \\\"When I was almost across the street this car came running right in front of me. I cut slightly to the right and his rear fender and wheel hung the left-hand side of my bumper.\\u201d\\nThere is other evidence that the truck entered the intersection around 30 or 40 miles an hour and that it was running too fast to stop.\\nThe speed of Dr. Sebastian\\u2019s car is variously estimated from 10 or 15 to 40 miles an hour. \\u201cIt looked like it turned to the left and tried to get in front of the truck. ... It did not stop. It looked like it tried to go in front of the truck. In fact, he did try to get in front of the truck. . . . The truck was going south and it was on its right-hand side of the street. It had nearly passed through the intersection. It lacked 1 or 8 feet of having passed through. Dr. Sebastian pulled his car to his left.\\u201d\\nThe following excerpt from the charge forms the basis of one of defendant\\u2019s exceptive assignments of error:\\n\\u201cThe court charges you that if you are satisfied by the greater weight or preponderance of the evidence that the driver of this truck failed to stop at this \\u2018Stop\\u2019 sign and entered this intersection, that under the law that would be negligence per se, or negligence in itself.\\u201d\\nAgain, in respect of the mortuary table, the jury was instructed as follows: \\u201cThe court charges you that his expectancy according to this table of mortality, as read to you by the court, the age of Dr. Sebastian being 61 years, that his expectancy is 13.5 years.\\u201d Exception. The court had previously instructed the jury: \\u201cYou have a right to consider this statute in making up your verdict, but you are not bound by it.\\u201d\\nThe following instruction, given in response to a request from the jury, is also assigned as error:\\nJuror: \\u201cThere is one point of law, I believe, the jury is not entirely clear on, and that is the question of whether or not Dr. Sebastian in approaching this intersection had a right to assume from the fact that there was a \\u2018Stop\\u2019 sign on Benbow Boad that this truck would stop before entering the intersection, and just what right that assumption would give him.\\u201d\\nThe Court: \\u201cGentlemen of the jury, this being a street designated by the statute or ordinance of the city of Greensboro as a stop street, any person operating a motor vehicle on Washington Street had a right to assume that any person operating a motor vehicle on Benbow Boad would come to a stop before entering Washington Avenue.\\u201d\\nThe usual issues of negligence, contributory negligence and damages were submitted to the jury and answered in favor of the plaintiff, the damages being assessed at $28,500.\\nFrom judgment on the verdict, the defendant appeals, assigning errors.\\nR. R. King, Jr., 8. B. Adams, and Moseley \\u25a0& Holt for plaintiff, appellee.\\nCochran & McCleneghan and Sapp & Sapp for defendant, appellant.\", \"word_count\": \"2322\", \"char_count\": \"13269\", \"text\": \"Stacy, C. J.\\nThere are a number of exceptions appearing on the record, but we deem it unnecessary to consider them seriatim as rulings upon the following will suffice to dispose of the present appeal.\\nFirst: Was it error for the court to instruct the jury that if the driver of defendant's truck failed to stop at the \\\"S T O P\\\" sign on Benbow Road before entering the intersection with Washington Street, a through highway, \\\"under the law that would be negligence per se, or negligence in itself\\\"? The law as presently written answers the question in the affirmative.\\nIt is provided by ch. 407, Public Laws 1937, sec. 120, that the State Highway Commission with reference to State highways, and local authorities with reference to highways under their jurisdiction, may designate main traveled or through highways by erecting at the entrance thereto, from intersecting highways, signs notifying drivers of vehicles to come to a full stop before entering or crossing such designated highway, \\\"and whenever any such signs have been so erected it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto. That no failure so to stop, however, shall be considered contributory negligence per se in any action at law for injury to person or property; but the facts relating to such failure to stop may be considered with the other facts in the case in determining whether the plaintiff in such action was guilty of contributory negligence.\\\"\\nIf the failure to come to a full stop before entering or crossing a through highway in obedience to any such sign duly erected is not to be considered contributory negligence per se on the part of a plaintiff in any action at law for injury to person or property, but only evidence of such negligence, we think it follows as a necessary corollary or as the rationale of the statute, that where the party charged is a defendant in any such action, the failure so to stop is not to be considered negligence per se, but only evidence thereof to be considered with other facts in the case in determining whether the defendant in such action is guilty of negligence. 1937 Supp. to N. C. Code of 1935 (Michie), sec. 2621 (305); Keller v. R. R., 205 N. C., 269, 171 S. E., 73. Indeed, it may not be inappropriate to say that in an action at law for injury to person or property, the plaintiff therein becomes defendant, pro hac vice, upon the issue of contributory negligence. There is really no distinction, or essential difference, between negligence in the plaintiff and negligence in the defendant, except that in an action like the present, the negligence of the plaintiff is called contributory negligence. Liske v. Walton, 198 N. C., 741, 153 S. E., 318. The criterion for establishing both is the same. Moore v. Iron Works, 183 N. C., 438, 111 S. E., 776. The same standard applies alike to both. Pearson v. Luther, 212 N. C., 412. Hence, according to the rule of equality, if a given act is not to be regarded as contributory negligence per se on the part of a plaintiff in any action at law for injury to person or property, the same act ought not to be regarded as negligence per se on the part of a defendant in any such action. See Smith v. R. R., 200 N. C., 177, 156 S. E., 508; S. v. Satterfield, 198 N. C., 682, 153 S. E., 155; Weston v. R. R., 194 N. C., 210, 139 S. E., 237; Kimbrough v. Hines, 180 N. C., 274, 104 S. E., 684. Nothing was said in Headen v. Transportation Co., 211 N. C., 639, 191 S. E., 331, which militates against this position. The question presently presented was not raised in the Headen case, supra. The rulings there are accordant herewith.\\nIt will be observed that this exception is not concerned with section 103 of the Motor Yehicle Law, ch. 407, Public Laws 1937, which deals with speed restrictions and prima facie evidence arising from speeds in excess' of the restrictions therein set out. Woods v. Freeman, ante, 314.\\nSecond: Is there error in the instruction, \\\"according to this table of mortality . . . the age of Dr. Sebastian being 61 years, . . . his expectancy is 13,5 years\\\"? It is not perceived wherein the instruction here challenged differs from the one held to be erroneous in Hubbard v. R. R., 203 N. C., 675, 166 S. E., 802, or the one disapproved in Trust Co. v. Greyhound Lines, 210 N. C., 293, 186 S. E., 320.\\nIn the instant case, the court made definitive the age of the deceased, as well as his expectancy, and thus expressed an opinion as to the sufficiency of the proof of both facts. This runs counter to C. S., 564, which prohibits the judge from expressing any opinion as to \\\"whether a fact is fully or sufficiently proven.\\\" Cogdill v. Hardwood Co., 194 N. C., 745, 140 S. E., 732. The instruction was calculated appreciably to augment the recovery, which it undoubtedly did.\\nThird: Is there error in the instruction given in response to a request from the jury, that Dr. Sebastian \\\"had a right to assume that any person operating a motor vehicle on Benbow Road would come to a stop before entering Washington Avenue\\\"?\\nIn the circumstances of the case, we are constrained to think that this instruction may have misled the jury in its consideration of the second issue.\\nIt is true, there are expressions in a number of cases seemingly in support of the charge, notably Hancock v. Wilson, 211 N. C., 129, 189 S. E., 631; Jones v. Bagwell, 207 N. C., 378, 177 S. E., 170; Cory v. Cory, 205 N. C., 205, 170 S. E., 629; and Shirley v. Ayers, 201 N. C., 51, 158 S. E., 840, and ordinarily the instruction might not be objectionable, but here, there is evidence tending to show that the truck \\\"had nearly passed through the intersection\\\" before the deceased reached it, and then be undertook to pass in front of tbe moving truck by turning to bis left. Powers v. Sternberg, ante, 41. Wbetber tbis was in keeping witb tbe exigencies of tbe occasion should bave been submitted to tbe jury on tbe issue of contributory negligence. Meacham v. R. R., ante, 609.\\nNotwithstanding Dr. Sebastian's right to expect compliance witb tbe law on tbe part of tbe driver of defendant's truck, Quinn v. R. R., ante, 48, still tbis did not lessen bis own obligation to conform to tbe rule of tbe reasonably prudent man, which was still required of him. Meacham v. R. R., supra; Powers v. Sternberg, supra.\\nTbe case is an important one. Both sides are greatly interested in tbe result. A painstaking investigation of tbe record leaves us witb tbe impression that tbe above instructions, assigned as errors, weighed too heavily against tbe defendant.\\nNew trial.\"}" \ No newline at end of file diff --git a/nc/8630924.json b/nc/8630924.json new file mode 100644 index 0000000000000000000000000000000000000000..0728d5d31a63ee35ef8bc0588b187d8668f91822 --- /dev/null +++ b/nc/8630924.json @@ -0,0 +1 @@ +"{\"id\": \"8630924\", \"name\": \"THE SHAW UNIVERSITY, a Corporation, v. DURHAM LIFE INSURANCE COMPANY, a Corporation\", \"name_abbreviation\": \"Shaw University v. Durham Life Insurance\", \"decision_date\": \"1949-06-02\", \"docket_number\": \"\", \"first_page\": \"526\", \"last_page\": \"530\", \"citations\": \"230 N.C. 526\", \"volume\": \"230\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T18:00:09.037046+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE SHAW UNIVERSITY, a Corporation, v. DURHAM LIFE INSURANCE COMPANY, a Corporation.\", \"head_matter\": \"THE SHAW UNIVERSITY, a Corporation, v. DURHAM LIFE INSURANCE COMPANY, a Corporation.\\n(Filed 2 June, 1949.)\\n1. Trusts \\u00a7 20\\u2014\\nOrdinarily the power given a trustee to sell does not confer authority to mortgage the property, but where the trustees themselves purchase the property for a valuable consideration and have deed made to them in fee for use of an educational institution, with authority to rent or sell and use the proceeds for the purposes of the trust, the authority to mortgage for the purpose expressed in the writing will be inferred, there being nothing in the instrument to indicate an intention to the contrary.\\n2. Deeds \\u00a7 14b\\u2014\\nA mere statement of the purpose for which the property conveyed is to be used is not sufficient to constitute a condition subsequent, there being no clause of re-entry, nor limitation over, nor other provision to become effective upon condition broken, and nothing in the instrument to indicate that the grantor intended to convey a conditional estate.\\n3. Trusts \\u00a7 20\\u2014\\nThe land was conveyed to grantees for use of an educational institution with mandatory requirement that the grantees apply for charter incorporating the educational institution, and upon its incorporation to convey the property to such institution upon the same uses. The corporation was created with charter authority to execute mortgages and deeds of trust on its property in order to carry out the purposes of its creation. Held: There being nothing in the deeds or in the charter of the corporation to the contrary, such corporation has the power to mortgage the property to further the purposes of its creation.\\nAppeal by the defendant from Harris, J., at Chambers, in Raleigh, N. C., 19 May, 1949. From Wake.\\nThis is a controversy without action, submitted on an agreed statement of facts.\\nThe pertinent facts are as follows:\\n1. The Shaw University has applied to the Durham Life Insurance Company for a loan of $200,000.00, offering as security therefor its bond, secured by a deed of trust on property located in Raleigh, and being the block on which certain buildings of the University are located.\\n2. The Durham Life Insurance Company is willing to make the loan and has committed itself to do so, provided the University has the authority to execute a valid deed of trust on its property as security therefor.\\n3. The defendant challenges the authority of the plaintiff to execute a valid deed of trust on its property, by reason of the wording contained in two deeds which form the basis of title to the property offered as security for the proposed loan.\\n4. The deed from Daniel Barringer to Elijah Shaw and others, trustees, dated 3 May, 1870, and duly recorded in the office of the Register of Deeds of Wake County, reciting a consideration of $13,000.00, conveyed the property to the Trustees in fee simple for the following purposes: \\u201cUnder this deed they shall hold, use and apply said lands and premises to the following uses and trusts and none other: (1) The said parties of the second part shall hold and apply the property herein conveyed to them for the uses and purposes of an educational institution and the proceeds of the rental or sale thereof shall be perpetually devoted to educational purposes, and no pupil or pupils shall ever be excluded from the benefits arising therefrom or from the benefits arising from the rental or sale thereof on account of race, color or previous condition of servi tude; (2) the parties of the second part shall apply to the General Assembly of the State of North Carolina as early as it may conveniently he done for a Charter or Act of Incorporation, creating and incorporating a literary institution . . . and as soon as such Charter or Act of Corporation is obtained, said parties of the second part or their successors shall convey the property herein conveyed to the said Corporation to be held by it in all respects. upon the same uses and trusts as those herein declared.\\u201d\\n\\u2022 5. A charter was granted, creating a corporation as contemplated, by an Act of the General Assembly of North Carolina, being Chapter 153, Private Laws of N. C., Session 1874-75, as amended by House Bill of the 1949 Session of the General Assembly of N. C., and The Shaw University is a corporation, duly created and existing under and by virtue of the aforesaid Acts.\\n6. The surviving Trustees executed a deed to The Shaw University, dated 14 October, 1875, which was duly recorded in \\\"Wake County. The essential provisions in the habendum of this deed read as follows: \\u201cTo Have and To Hold the said lands and premises . . ., rights and privileges thereunto in any way appertaining or belonging to the said party of the second part and to their successors and assigns on the trusts herein declared in fee simple. In special trust and confidence nevertheless, that the said party of the second part and its successors shall hold, use, and apply the said lands and premises to the uses and trusts hereinbefore specified, and'more particularly mentioned in said deed of conveyance to the said parties of the first part.\\u201d\\n7. The charter of Shaw University authorizes the corporation to take and hold property by gift, grant, bequest, devise, purchase or otherwise, and to use and dispose of the same for the benefit of the corporation unless the \\\"Will of the donor prohibits the corporation from disposing of the devised property; it is also given the power to construct new buildings, remodel, renovate and make additions to old buildings now owned by the corporation or which may he hereafter acquired by it, when such acts are necessary or expedient; and the corporation is also given the power to equip such buildings with suitable furniture and furnishings; \\u201cand to this end and for these purposes and for the purpose also of the general upkeep of the present buildings and for the general operation of the present plants and those which may hereafter be acquired or constructed, said corporation shall have power and authority to borrow money and pledge the credit of the corporation therefor, and power to execute mortgages, deeds of trust, and other pledge agreements,.both on personal and real property, as security for money so borrowed.\\u201d\\n8. It is stipulated that the proposed loan is being sought \\u201cfor the purpose of building necessary buildings and repairing other buildings, and to expand facilities of the Institution and the general enlargement of its plant and schools, all of which is for the furtherance of educational purposes.\\u201d\\nUpon the stipulated facts, his Honor held that The Shaw University has a good fee simple title to the property referred to herein, and the right to mortgage the same is not restricted by any provisions in the two deeds referred to above, and entered judgment accordingly. The court further directed the defendant to conclude its agreement with the plaintiff by making the loan' in accord with said agreement.\\nDefendant appeals, assigns error and submits the case on appeal to this \\u25a0Court, under Eule 10.\\nMorclecai <& Mills for plaintiff.\\nBay B. Brady for defendant.\", \"word_count\": \"1937\", \"char_count\": \"11331\", \"text\": \"DeNNy, J.\\nThe sole question presented on this appeal is simply this : Does the plaintiff have the power to execute a valid deed of trust on the premises conveyed by the above deeds ?\\nOrdinarily the power to sell given an agent, attorney or trustee, does not include the power to execute a mortgage. Shannonhouse v. Wolfe, 191 N.C. 769, 133 S.E. 93. \\\"The weight of authority is to the effect that a mere power of sale expressly conferred in an instrument does not, by implication, confer authority to mortgage, in the absence of anything in the instrument, read in the light of the surrounding circumstances, to indicate a contrary intent.\\\" 41 Amer. Jur. 813.\\nEven so, a different rule applies when the trust is not created for the benefit or profit of the donor or grantor, but for the benefit of the donee. Shannonhouse v. Wolfe, supra. Brogden, J., in discussing this question in the above case, quoted with approval from the opinion in Hamilton v. Hamilton, 149 Iowa 329, where it is said: \\\"The language creating \\u2022such a power (that is for the benefit of the donee) is to be liberally construed to promote the purpose or intent of its creation, and, if the power to sell is amplified by other words of general meaning, and the circumstances under which the gift is made be not such as to forbid that construction, the authority to mortgage for the purpose expressed in the writing may be inferred.\\\"\\nThe property involved herein was not a gift but a purchase by the 'Trustees from Daniel Barringer, for a consideration of $13,000.00. The property was not conveyed in trust for the benefit of the grantor, but was conveyed to Trustees, the grantees therein, \\\"for the uses and purposes of an educational institution and the proceeds of the rental or sale thereof\\\" were to be \\\"perpetually devoted to educational purposes.\\\"\\nThere is nothing in the Barringer deed to indicate the grantor intended to convey a conditional estate, or that the Trustees intended to purchase or create such an estate. There is no clause of re-entry, no limitation over or other provision which was to become effective upon condition broken. The property was conveyed in fee simple for certain expressed purposes, and authority was given to use, rent or sell it. .And the only limitation as to its use or disposition, is to the effect that the property or the proceeds derived from the rental or sale thereof, \\\"shall be perpetually devoted to educational purposes.\\\"\\nIt is said in Hall v. Quinn, 190 N.C. 326, 130 S.E. 18, \\\"A clause in a deed will not be construed as a condition subsequent unless it expresses in apt and appropriate language the intention of the parties to this effect (Braddy v. Elliott, 146 N.C. 578) and a mere statement of the purpose for which the property is to be used is not sufficient to create such condition. Hunter v. Murfee, 126 Ala. 123; Fitzgerald v. Modoc County, 44 L.R.A. (N.S.), (Cal.), 1229; Wright v. Board of Education, 152 S.W. 543; Forman v. Safe & Trust Co., 80 At. (Md.) 298; Brown v. Caldwell, 48 A.R. (W.V.) 376; Highbee v. Rodeman, 28 N.E. (Ind.) 442; Raley v. Umatilla County, 3 A.S.R. 142.\\\"\\n. The Barringer deed made it mandatory that the grantees therein apply to the General Assembly of North Carolina for a Charter or Act, incorporating the educational institution now known as The Shaw University. And when such corporation was created, the grantees in the Barringer deed were required, under the terms thereof, to convey the property to the corporation. The corporation was created as contemplated and the property conveyed to it as required. Moreover, the plaintiff has the express power granted in its charter to execute mortgages and deeds of trust on its property, in order to carry out the purposes for which it was created; and we find nothing in the deeds under consideration, or in the charter of the corporation or the amendment thereto, that we deem a restriction on the power of the plaintiff to execute a deed of trust on the premises conveyed in the aforesaid deeds, as security for the loan which it seeks. Hall v. Quinn, supra; Raleigh v. Trustees, 206 N.C. 485, 174 S.E. 278; Ferrell v. Ins. Co., 211 N.C. 423, 190 S.E. 746; Trust Co. v. Heymann, 220 N.C. 526, 17 S.E. 2d 665.\\nThe judgment of the court below is\\nAffirmed.\"}" \ No newline at end of file diff --git a/nc/8631702.json b/nc/8631702.json new file mode 100644 index 0000000000000000000000000000000000000000..f06170980312cf7e4b43c7f9d8d94fdadcae341d --- /dev/null +++ b/nc/8631702.json @@ -0,0 +1 @@ +"{\"id\": \"8631702\", \"name\": \"JENNY FLEETWOOD WESTFELDT et al. v. CHRISTINE REYNOLDS et al.\", \"name_abbreviation\": \"Westfeldt v. Reynolds\", \"decision_date\": \"1926-05-27\", \"docket_number\": \"\", \"first_page\": \"802\", \"last_page\": \"808\", \"citations\": \"191 N.C. 802\", \"volume\": \"191\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T01:12:02.503925+00:00\", \"provenance\": \"CAP\", \"judges\": \"Adams and CoNNOR, JJ., dissent.\", \"parties\": \"JENNY FLEETWOOD WESTFELDT et al. v. CHRISTINE REYNOLDS et al.\", \"head_matter\": \"JENNY FLEETWOOD WESTFELDT et al. v. CHRISTINE REYNOLDS et al.\\n(Filed 27 May, 1926.)\\n1. Wills \\u2014 Bequests\\u2014Cumulative Bequests.-\\nWhere a testator by will in different items or writings or codicil, bequeaths moneys in different amounts, they are to be construed as cumulative and not substitutional, unless a contrary intent is manifested.\\n2. Wills \\u2014 Interpretation\\u2014Devises\\u2014-Revocations\\u2014Statutes.\\nTo effectuate the intent of the testatrix, each clause of her will will be presumed to have been intended to take effect under a reasonable interpretation, and where in one clause or part there is a gift to designated beneficiaries and later a general disposition to them of the whole of the testatrix\\u2019s property, the property conveyed by the special devise will pass thereunder rather than under the universal disposition, and where the \\\"specific devise is of the fee of the lands, the beneficiary will take accordingly. C. S., 4162.\\n3. Estates \\u2014 Contingent limitations \\u2014 Vesting of Estates \\u2014 Statutes.\\nWhere at the time of the execution of her will the testatrix has two nieces, the special objects of her bounty, J. and R, the latter an invalid, and gives them her property by will, one-half to each, both unmarried, and who survived the testatrix, J.\\u2019s half to \\u201crevert\\u201d to L. upon her death, and should L. die \\u201cwithout heirs\\u201d her part to \\u201cgo over\\u201d to the children of P.: Held, the provision as to the time of the \\u201creversion\\u201d of J.\\u2019s half of the property has reference to the death of J. in the testatrix\\u2019s lifetime, and thereupon the property vests in them, one-half each, it appearing also as to L. that, under the terms of the will and existing circumstances, it was the testatrix\\u2019s intent.\\n4. Same.\\nWhere there is ambiguity in a will as to the vesting of an estate devised for life with contingent limitation over, shall be at the death of the testatrix or that of the first taker, under the principle that the law favors the early vesting of estates, the former will be taken; and where it clearly appears from the terms of the will and surrounding circumstances that this was the intent of the testatrix, it will not be affected by C. S., 1737, by which a contingent limitation depending upon the dying of a person without heir, etc., is to vest at the death of such person.\\nAdams and Connor, JJ., dissent.\\nAppeal by defendants from McElroy, J., at Chambers in Asheville, 12 April, 1926, from HENDERSON.\\nCivil action to construe the will of Jenny Westfeldt, deceased, submitted on an agreed statement of facts.\\nThe will consists of three paper-writings, executed at different times, and contains the following material provisions:\\n\\u201c1. Rugby Grange, 22 December, 1914. If anything happens to me take care of Lulie and Jenny and let my portion of the Rugby Grange property go to them equal parts for each.\\u201d\\n\\u201c2. Frankfort, Ely., 22 May, 1915, and 30 September, 1915. I leave to Lulie Westfeldt, daughter of Patrick Westfeldt, the half of my property and to Jenny Fleetwood Westfeldt the other half \\u2014 to revert to Lulie Westfeldt in case of Jenny Fleetwood Westfeldt\\u2019s decease \\u2014 and should Lulie Westfeldt die without heirs the property to go over to Overton Westfeldt Price\\u2019s children \\u2014 I leave to Christine Price $1,000 and to Christine Reynolds $1,000.\\u201d\\n(P. S.) \\u201cDear Jenny F. carry out my wishes.\\u201d\\n\\u201c3. January 25 (1916 or later). I want $3,000 paid to Christine Reynolds and $3,000 to my sister Christine W. Price. And if Hunt\\u2019s gold mine is a success and takes good care of Jenny F. Westfeldt the rest of my property I leave to Lulie Westfeldt. If the gold mine proves not a success I leave my property as I wrote before.\\u201d\\nHunt\\u2019s gold mine proved not a success.\\nTbe testatrix left sufficient property to pay all specific bequests or legacies, with considerable property remaining for distribution under tbe remaining provisions of ber will.\\nJenny Fleetwood Westfeldt and Lulie Westfeldt were favorite nieces of tbe testatrix; tbe former at tbe time of tbe execution of tbe will was 48 years of age and unmarried, tbe latter 20 years of age, unmarried and a sufferer of infantile paralysis. Botb survived tbe testatrix.\\nHis Honor beld (1) tbat tbe specific bequests of $1,000 and $3,000 to Christine Reynolds and tbe specific bequests of $1,000 and $3,000 to Christine Price are cumulative, giving each $4,000; (2) tbat Jenny Fleetwood Westfeldt and Lulie Westfeldt each take a one-balf undivided interest in fee in tbe Rugby Grange property under tbe first devise; and (3) tbat Jenny Fleetwood Westfeldt is tbe owner in fee of a one-balf undivided interest in tbe remainder of tbe estate by virtue of tbe 'second devise; and tbat under tbe same devise Lulie Westfeldt takes a defeasible fee in tbe remaining one-balf undivided interest in tbe estate, with limitation over to tbe children of Overton Westfeldt Price, should tbe said Lulie Westfeldt die without issue surviving ber.\\nFrom tbe judgment 'entered in accordance with tbe above rulings, Lulie Westfeldt and tbe children of Overton Westfeldt Price appeal, assigning errors.\\nJ ones, Williams & J ones for plaintiffs.\\nBourne, FarTcer & Jones and V. S. Starhuclc for defendant, Lulie Westfeldt.\\nGeorge S. Wright for defendants other than Lulie Westfeldt.\", \"word_count\": \"2939\", \"char_count\": \"17047\", \"text\": \"Stacy, C. J.\\nTbe will now submitted for construction was before tbe Court on an issue of devisavit vel non at the Fall Term, 1924, and is set out in full in 188 N. C., 702, with a valuable opinion by Associate Justice Clarkson, upholding tbe validity of tbe several paper-writings as tbe last will and testament of Jenny Westfeldt, deceased.\\nTbe appeal presents four separate and distinct questions. They will be considered seriatim.\\nFirst, as to whether tbe specific bequests of $1,000 and $3,000 to Christine Reynolds and tbe specific bequests of $1,000 and $3,000 to Christine Price are substitutional or cumulative:\\nIt is generally beld tbat where two bequests of quantity, of different amounts, are given to tbe same person in tbe same instrument, or by different instruments, as by a will in tbe one case and a codicil in tbe other, they are to be considered as cumulative rather than substitutional, and tbe beneficiary is entitled to receive botb (40 Cyc., 1560), though this rule must give way to the controlling rule of interpretation, that the intent of the testator, or testatrix as the ease may he, is to govern, provided it does not conflict with the settled rules of law. In fact, the discovery of the intention of the testator, as gathered from the four corners of the will, is the cardinal principle in the interpretation of testamentary instruments, to which all other rules must bend. Witty v. Witty, 184 N. C., 375.\\nIt is the approved position, so far as examined, that where two bequests, as here, are given simplicity, that is, as plain gifts without any reason or motive assigned therefor, to the same person, by different testamentary instruments, though forming parts of the same will, the bequests are to be considered as cumulative, especially if the amounts are unequal. 40 Cyc., 1561.\\nIn deference to this established rule of construction and in the absence of any contrary testamentary intent appearing from the will or the circumstances of the case, we are constrained to believe that his Honor correctly held, in keeping with the authorities on the subject, that the specific bequests to Christine Reynolds and Christine Price are cumulative, rather than substitutional. Stowe v. Ward, 10 N. C., 604.\\nSecond, as to whether Jenny Fleetwood 'Westfeldt and Lulie Westfeldt each take a one-half undivided interest in fee in the Rugby Grange property under the first devise:\\nIt is the position of the defendants that the first devise, made at Rugby Grange, was revoked by the second and subsequent devise, executed at Frankfort, Ely. \\\"We do not assent to this interpretation. In re Wolfe 185 N. C., 563. A later will does not revoke an earlier one, without express words of revocation, unless the two are so inconsistent as to be incapable of standing together. In re Venable, 127 N. C., 344.\\nHere, the first devise is specific and has reference to a single piece of property, which is only a small part of what the testatrix owned. It may therefore stand as an exception to the general devise contained in the second paper-writing, thus giving effect to both provisions. It is the duty of the court to reconcile the various clauses of a will, if this can be done, as the maker is presumed to have intended that all should take effect. Pilley v. Sullivan, 182 N. C., 493; Dalton v. Scales, 37 N. C., 521; Edens v. Williams, 7 N. C., 27; Underhill on Wills, sec. 359. And where a general disposition of the whole of the testator's property is preceded by specific devise of only a small part, it is held that the former must be understood as impliedly subject to the latter, and the property conveyed by the special devise will pass thereunder rather than under the universal disposition. Rice v. Saterwhite, 21 N. C., 69; Fraser v. Alexander, 17 N. C., 348; Dalton v. Scales, supra.\\nIt follows, therefore, that Jenny Fleetwood Westfeldt and Lulie West-feldt each take a one-half undivided interest in fee (C. S., 4162) in the Rugby Grange property under the first devise.\\nThird, as to whether Jenny Fleetwood Westfeldt takes a one-half undivided interest in fee in the remainder of the estate by virtue of the second devise:\\nWe now come to the first real battleground of debate between the parties, but from the reasoning in all the decisions on the subject, the question would seem to be involved in no serious doubt as to its proper solution. Jenny Fleetwood Westfeldt survived the testatrix. The limitation that her interest under the second devise is \\\"to revert to Lulie Westfeldt in case of Jenny Fleetwood Westfeldt's decease,\\\" has reference to the death of Jenny Fleetwood Westfeldt during the lifetime of the testatrix. This not having occurred, the devise to Jenny Fleetwood Westfeldt, under the second clause, became absolute upon her survival of the testatrix. Goode v. Hearne, 180 N. C., 475; Bank v. Murray, 175 N. C., 62.\\nIt is the recognized rule of testamentary construction, here and elsewhere, that, in the absence of a contrary intention clearly expressed in the will, or to be derived from its context, read in the light of the surrounding circumstances, when a defeasible estate is created by devise, with\\\" no definite time fixed for the same to become absolute, and the alternative is either to adopt the time of the testator's death, or the death of the devisee, at which the estate may fairly be relieved of the contingency and become absolute, the time of the testator's death will ordinarily be adopted, unless prohibited by some statutory provision, as this makes for the early vesting of estates, which the law favors. Goode v. Hearne, supra; Whitfield v. Douglas, 175 N. C., 46; Bell v. Keesler, ibid., 526; Hilliard w. Kearney, 45 N. C., 221. Robertson v. Robertson, 190 N. C., 558.\\nJenny Fleetwood Westfeldt having outlived the testatrix, we are of opinion that his Honor correctly held that she takes a one-half undivided interest in fee in the remainder of the estate by virtue of the second devise.\\nFourth, as to whether Lulie Westfeldt, under the second devise, takes a defeasible fee in the remaining one-half undivided interest in the estate, with limitation pver to the children of Overton Westfeldt Price, should the said Lulie Westfeldt die without issue surviving her:\\nThis brings us to the most serious question presented by the appeal.\\nWhat has already been said in regard to the interest arising to Jenny Fleetwood Westfeldt under the second devise, would seem to apply with equal force to the interest given to Lulie Westfeldt under the same devise, unless the general rule of interpretation, as above stated, is affected by C. S., 1737, which provides: \\\"Every contingent limitation in any deed or will, made to depend upon the dying of any person without heir or heirs of the body, or without issue or issues of the body, or without children, or offspring, or descendant, or other relative, shall, be held and interpreted a limitation to take effect when such person dies not having such heir, or issue, or child, or offspring, or descendant, or other relative (as the case may be) living at the time of his death, or born to him within ten lunar months thereafter, unless the intention of such limitation be otherwise, and expressly and plainly declared in the face of the deed or will creating it.\\\"\\nIt may well be doubted as to whether the second devise to Lulie West-feldt, and upon her dying without heirs, the property to go over to the Price children, is such a \\\"limitation\\\" as brings it under the operation of the statute (Starnes v. Hill, 112 N. C., 1), requiring that the words \\\"die without heirs\\\" shall be held and interpreted as referring to the death of Lulie Westfeldt without issue living at the time of her death. Patterson v. McCormick, 177 N. C., 448. But omitting for the moment any definite decision of this question, we think a contrary intent clearly appears on the face of the will.\\nIn making the disposition now under consideration, the testatrix divided her property equally between Lulie Westfeldt and Jenny Fleet-wood Westfeldt who were the primary objects of her bounty. As we have seen, she gave Jenny her share in fee. She provided that Jenny's half should go to Lulie in case Jenny should die before the will became effective, having in mind, we apprehend, that Jenny was much older than Lulie, and therefore more likely to predecease her, or at least it was more likely that she might not have issue, for the testatrix makes no corresponding alternative disposition in favor of Jenny. It clearly appears, by implication, we think, that the testatrix wanted Lulie's children, if any she had, to take their mother's share in case she also died during the lifetime of the testatrix. And only in the event of Jenny's death and Lulie's death without issue in the lifetime of the testatrix, was \\\"the property\\\" to go over to the Price children. It nowhere appears that the testatrix intended to give Lulie an estate in the property of less dignity than Jenny's. On the other hand, in several expressions, she apparently prefers Lulie to Jenny, this no doubt because of her affliction. In the third devise, she says: \\\"If Hunt's gold mine is a success and takes good care of Jenny E. Westfeldt the rest of my property I leave to Lulie Westfeldt. If the gold mine proves not a success (and it did not), I leave my property as I wrote before.\\\" Here, it will be observed that upon a contingency which concerns only Jenny, and not the Price children, the testatrix leaves to Lulie, not the half of her property, but the whole of it without qualification. It was her desire, as here expressed, to give the whole of her property to Lulie, to the exclusion of all others, if Jenny were provided for out of Hunt's gold mine. And if the gold did not prove a success, as she hoped it would, she then leaves her property \\\"as she wrote before,\\\" showing clearly, we think, an intention to deal with Lulie no less generously than she had dealt with Jenny. The two were the primary objects of her bounty.\\nWe perceive the devise to Lulie Westfeldt, under the second clausa of the will, to be of a one-half undivided interest in the remainder of the estate in fee, intended to take effect at the death of the testatrix, and in the alternative: (1) To Lulie Westfeldt if living; (2) to her issue if any, if she be dead; (3) to the Price children if Lulie Westfeldt be dead without issue surviving. Bowen v. Hackney, 136 N. C., 187; Watson v. Smith, 110 N. C., 6.\\nIt follows, therefore, as Lulie Westfeldt survived the testatrix, that she takes the remaining one-half undivided interest in the estate in fee simple under the second devise.\\nOur present position in no way conflicts with what was said in Rees v. Williams, 165 N. C., 201, strongly relied on by the Price children, for in that case there were terms in the devise which served to bring the case within the purview and operation of C. S., 1737, and there were also special terms in the will, much relied upon in the opinion, which went to show that the testatrix did not intend for the estate to vest at the time of her death.\\nNor is the decision in Patterson v. McCormick, 177 N. C., 448, at variance with what is said above. Conversely, the interpretation placed upon the second devise in the will of Jenny Westfeldt, deceased, is supported, in tendency at least, by the following authorities: Dupree v. Daughtridge, 188 N. C., 193; Goode v. Hearne, 180 N. C., 475; McDonald v. Howe, 178 N. C., 257; Bell v. Keesler, 175 N. C., 525; Bank v. Murray, ibid., 62; Whitfield v. Douglas, ibid., 46; Bank v. Johnson, 168 N. C., 304; Murchison v. Whitted, 87 N. C., 465; Burton v. Conigland, 82 N. C., 100; Davis v. Parker, 69 N. C., 271.\\nThe judgment will be modified in accordance with this opinion, and, as thus modified, it will be affirmed.\\\"\\nModified and affirmed.\\nAdams and CoNNOR, JJ., dissent.\"}" \ No newline at end of file diff --git a/nc/8632509.json b/nc/8632509.json new file mode 100644 index 0000000000000000000000000000000000000000..27ec84e41760c3235613646dffda7dd44ddf25b3 --- /dev/null +++ b/nc/8632509.json @@ -0,0 +1 @@ +"{\"id\": \"8632509\", \"name\": \"STATE v. CHARLIE MOORE\", \"name_abbreviation\": \"State v. Moore\", \"decision_date\": \"1939-01-04\", \"docket_number\": \"\", \"first_page\": \"658\", \"last_page\": \"661\", \"citations\": \"214 N.C. 658\", \"volume\": \"214\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-11T02:21:37.946424+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. CHARLIE MOORE.\", \"head_matter\": \"STATE v. CHARLIE MOORE.\\n(Filed 4 January, 1939.)\\n1. Homicide \\u00a7 27f\\u2014\\nWhen presented by tbe evidence, it is error for tbe court to fail to charge the law of self-defense in case of nonfelonious assault, and defendant\\u2019s exception to a charge solely on tbe law of self-defense in case of a felonious assault must be sustained.\\n2. Same \\u2014 Charge held susceptible to construction that reasonableness of apprehension should he determined from facts as of time of trial.\\nA charge on the law of self-defense that a person may use such force \\u201conly as it is necessary, or as reasonably appears to be necessary,\\u201d is held for error as being susceptible of the construction that the reasonableness of the apprehension to act should be determined from the facts and circumstances as they appeared at the time of trial, and not as the facts and circumstances appeared to defendant at the time of the homicide, and the charge being susceptible of such construction, it must be assumed that the jury so understood it.\\n3. Criminal Law \\u00a7 81d\\u2014\\nWhen a new trial is awarded on certain exceptions, other exceptions relating to matters which may not recur on another trial need not be determined.\\nAppeal by defendant from Phillips, J., at May Term, 1938, of Foestth.\\nCriminal action on indictment charging defendant with the murder in the first degree of one Nathaniel Adams.\\nDefendant pleaded not guilty and relied upon the plea of self-defense.\\nAt the time of the homicide defendant operated the Charlie Moore Cafe at the corner of Ogburn and 11th Streets in Winston-Salem. The main entrance to the cafe is on Ogburn Street. There is a side door into the kitchen from 11th Street. The kitchen is separated from the cafe by partition wall, in which there is a connecting doorway.\\nBetween 9 and 10 o\\u2019clock on Sunday night, 1 May, 1938, Nathaniel Adams was shot and killed by a pistol in the hands of the defendant, at or near the said side door.\\nThe State offered evidence tending to show: That after the deceased and Henry Wallie each drank a bottle of beer in Felder\\u2019s Cafe they started on 11th Street for home, and after crossing the street went into Charlie Moore\\u2019s Cafe .to get a match; that at that time a little girl, Estella Eice, was in the cafe, and defendant and his daughter, Eva May Moore, were in the kitchen; that deceased asked the little girl for a match, and she replied that they had penny and nickel boxes to sell but none to give away; that then defendant came to the partition door and said: \\u201cYes, I\\u2019m tired of you fellows out in the street running in here asking for a match \\u2014 get out of here, both of you\\u201d; that they both went out to the front porch, where deceased cursed and said: \\u201cThis man is a sorry man that wouldn\\u2019t give a man a match,\\u201d and called him a vilely vulgar name; that Henry Wallie said: \\u201cThat man told us to get off of his place; let\\u2019s go\\u201d; that they turned around the corner and started walking on the sidewalk down 11th Street; that defendant met them at the side door with a pistol in his hand; that deceased then went out into the street; that defendant asked, \\u201cNegro, what\\u2019s that you say?\\u201d; that deceased repeated the vile name which he had applied to defendant when on the front porch; that defendant said, \\u201cYou had better get on away from here before I kill you\\u201d; that deceased replied: \\u201cYou have got your pistol, go ahead and shoot it\\u201d; that thereupon defendant shot once into the ground, near where deceased was standing and then a second shot into the air; that deceased was then going away from him, 50 or 60 feet from the cafe, but wheeled around and said: \\u201cYou done shot at me, go ahead and kill me\\u201d; that then defendant shot a third time and deceased wheeled and fell in the street with a bullet wound in his left breast, from which he died almost instantly; and that at the time of the third shot defendant was on the ground, but went into the building, put up his pistol and \\u201ccame back to the door smoking a cigar.\\u201d\\nOn the contrary, the defendant, after introducing similar testimony with respect to the deceased asking for a match and his cursing on the front porch, offered further testimony tending to show: That after deceased and Henry Wallie left the front door, a noise was heard at the back or side door and on going there the defendant saw deceased and Henry Wallie and ordered them away, but that they refused to go; that deceased continued to curse defendant, using vile and opprobrious language ; that defendant went to his safe in the corner of the kitchen, got his pistol, returned to the door and shot twice in rapid succession to scare the men away; that he then returned to the safe and put up the pistol and came out into the front part of the cafe; that again hearing noise at the back or side door, defendant, followed by his daughter and the other girl, returned to the kitchen and, on seeing that deceased had the screen door open, defendant a second time went to the safe, got his pistol and went to the door; that deceased started away but Henry \\\"Wallie told him to go in there and drag out the defendant, calling him by a vulgar name, \\u201cand we will kill him. If he kills you, I will kill him\\u201d; that thereupon the deceased turned and started toward the defendant, who shot him; and that deceased was then from six to thirteen feet from the door, but fell much farther away.\\nEva May Moore and Estella Rice, testifying for the defendant, stated that they saw nothing in the hands of either deceased or Henry Vallie. Defendant did not go upon the stand.\\nYerdict: Guilty of murder in the second degree.\\nJudgment: Confinement in the State\\u2019s Central Prison at hard labor, to wear stripes, for a period of not less than 27 years, nor more than 30 years.\\nDefendant appealed to the Supreme Court and assigns error.\\nAttorney-General McMullan and Assistant Attorneys-General Bruton and Wettach for the State.\\nRichmond Ruclcer for defendant, appellant.\", \"word_count\": \"1525\", \"char_count\": \"8478\", \"text\": \"\\\"WiNBOBNE, J.\\nOn authority of S. v. Bryant, 213 N. C., 752, 197 S. E., 530, and on the factual situation appearing on this record, de fendant's exceptions present prejudicial error in two aspects: (1) Here as there, after stating the principle of law with respect to tbe right of a man, who without fault himself is murderously assaulted, to stand his ground and fight in self-defense, the court charged that: \\\"In order to have the benefit of this principle of law, the defendant must show that he was free from blame in the matter, that the assault upon him was with felonious purpose, with intent to kill or inflict bodily harm, and that he took life of the deceased only when it was necessary or apparently so to protect himself.\\\" Exception by defendant is well taken to the failure of the court, as it was its duty to do, to go further and explain the principle of law applicable in case of nonfelonious assault. The jury might have found that a felonious assault was not made, but that a nonfelonious assault was made.\\n(2) Here as there, under authorities there cited, the following charge is held to be erroneous: \\\"The means of force which a person is justified in using in self-defense depends upon the circumstances of the attack and must in no case exceed the bounds of mere defense and prevention, but if the one attacked uses such means of force only as it is necessary, or as reasonably appears to be necessary to repel the attack and save himself from death or great bodily harm, and the death of his assailant ensues, it is justifiable and excusable homicide.\\\"\\nIn S. v. Bryant, supra, it is stated that the error is in the clause \\\"as reasonably appears to be necessary.\\\" The reasonableness of the apprehension of necessity to act, and the amount of force required, must be judged by the jury upon the facts and circumstances as they appeared to the defendant at the time of the killing. The charge being in the present tense might have been understood by the jury to mean as the facts and circumstances appeared at the time of the trial, and being susceptible of that construction it is assumed that the jury so understood.\\nThe authorities on both questions are quoted and cited in S. v. Bryant, supra.\\nIt is fair to the learned judge, who tried this as well as the Bryant case, supra, to say that the opinion in the Bryant case, supra, was handed down after the charge in this case was delivered.\\nOther exceptions may have merit in them, but as the errors assigned may not recur on another trial, we deem it unnecessary to discuss them here.\\nLet there be a\\nNew trial.\"}" \ No newline at end of file diff --git a/nc/8648832.json b/nc/8648832.json new file mode 100644 index 0000000000000000000000000000000000000000..a2c1eaee4f3c7795d111f687d4abfb77a4ae43f8 --- /dev/null +++ b/nc/8648832.json @@ -0,0 +1 @@ +"{\"id\": \"8648832\", \"name\": \"The State on the relation of M. F. SKINNER v. A. J. BATEMAN et al.\", \"name_abbreviation\": \"State ex rel. Skinner v. Bateman\", \"decision_date\": \"1887-02\", \"docket_number\": \"\", \"first_page\": \"5\", \"last_page\": \"9\", \"citations\": \"96 N.C. 5\", \"volume\": \"96\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:29:31.058443+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State on the relation of M. F. SKINNER v. A. J. BATEMAN et al.\", \"head_matter\": \"The State on the relation of M. F. SKINNER v. A. J. BATEMAN et al.\\nBond, Official- \\u2014 \\u2022Schools\\u2014Statute\\u2014 Treasurer.\\nI. The effect of the Acts of the General Assembly of 1883 and 1885 in relation to a graded school in Edenton, was to supersede the organization of the school district within the same territory, and confer all the powers theretofore exercised by the school committee under the general law and transfer all moneys then in the treasury to the trustees created by said special enactments.\\n3. The school committee for the superseded district had no authority to contract or give orders for the payment for teaching a school therein after the passage of the Acts of 1883 and 1885; and it was no breach of the county treasurer\\u2019s bond to refuse, to pay upon their order, although at the time he had moneys in his hands apportioned originally to said district.\\n(Puett v. Commissioners, 94 N. C., 709, cited).\\nCivil action, tried before Gfudger, Judge, at Spring Term, 1886, of Chowan Superior Court.\\nA jury trial was waived, and judgment having been pronounced upon the facts found by the Court, the plaintiff appealed.\\nThe plaintiff was employed by the school committee of district No. 3, in Chowan, for the free education of white children, to teach therein for four months, terminating on January 30,1885, at a compensation of twenty-five dollars per month. Having completed her contract on the day mentioned, she applied for and obtained from the committee an order on the county treasurer, the principal defendant, A. J. Bateman, for the money clue for her services, he then having funds received from his predecessor in office sufficient for the purpose, and payment was refused. Thereupon she instituted the present action on the treasurer\\u2019s- official bond against him and the other defendants, his sureties, to recover in damages the amount specified in the order.\\nThe defence rests upon the alleged effect of three several acts of the General Assembly, ratified respectively on March 3d, 1883, January 19th, 1885, and February 25th, 1885, whereby the territory constituting the said third district is made a graded school district for the instruction of the same class of children which, it was insisted, displaced and superseded the former district and converted it into a graded school district with enlarged means of usefulness, and hence the plaintiff\\u2019s employment was unauthorized and the fund not liable to the orders of the said school committee.\\nThe act of March 3d, 1883, forms the graded school district and places the school under the management of a board of trustees who are authorized (\\u00a73) \\u201c to employ teachers and do all such acts as shall be necessary to carry on said graded school, and shall be the custodian of all public school property for the white race of said school district.\\u201d\\nSection four, more explicit in its bearing upon the matter in controversy, enacts:\\n\\u201c That all public school money which shall from time to time be collected under the general school law for the white race of said school district, and all special school taxes which may from time to time be collected from white persons in said school district, shall be applied for keeping up the said graded school for white children under the orders and directions of said board of graded school trustees for the white race.\\u201d\\nA similar provision is made for a graded school for colored children, and then it is enacted that \\u201cthe treasurer of Chowan and the sureties on his official bond \\u201d shall become \\u201c responsible for the proper disbursement of all moneys collected under this act,\\u201d \\u00a78.\\nThis enactment was repealed at the session of 1885, and another act, entitled \\u201cAn act to establish the Edenton Graded School,\\u201d ratified on the 19th day of January, (Acts 1885, ch. 7,) substituted in its place, in which certain dis criminating features in the former, supposed to be obnoxious to the Constitution, and since held to be in Puett v. Commissioners, 94 N. C., 709, are omitted. The essential provisions of this act, so far as they affect the present controversy, may be thus summarized: The Edenton graded school for School District Number Three, of Chowan county, for the white race, is incorporated, and its functions to be exercised by a board of trustees who are to organize by the appointment of a president, secretary and treasurer, of whom the latter is to have charge of the funds, except the public funds in the custody of the county treasurer,\\u201d \\u00a7\\u00a71 and 2.\\nThe trustees have authority to employ and pay teachers, &e., and \\u201c to do all such acts as may be necessary to carry on said school and to secure its good order,\\u201d and all powers and duties formerly vested in the school committee for the white race of said district are vested in said board,\\u201d \\u00a78.\\nSection four we quote in full: \\u201c The said board shall be custodian of all public school property for the white race of said district, and all unexpended public school money which has been apportioned or collected for the white race of said school district, under the general laws of the State, not applicable to contracts heretofore legally made, and all of (the last word is stricken out by the amendatory act of February 25th, ch. 138,) which shall hereafter from time to time be so collected or apportioned, shall be applied for keeping up said graded school, under the orders and directions of said board, and the treasurer of Chowan county shall pay out the same on the order of said board, approved and signed by its president and secretary; but no order shall be given on the county treasurer until the service or property for which it is given has been furnished in full, and the public funds appropriated to said school shall be drawn from the county treasury at the rate of one tenth thereof for each month the school may have been in operation.\\u201d\\nMr. Charles M. Busbee, for the plaintiff.\\nMr. John Devereux, Jr., for the defendants.\", \"word_count\": \"1441\", \"char_count\": \"8393\", \"text\": \"Smith, C. J.,\\n(having stated the case ). We think it manifest that the funds in the count}' treasurer's hands are withdrawn from the control of the committee of the former school district, and at the time when they undertook by their order to appropriate the required sum to the plaintiff's demand, their authority had ceased, and that money, as well as that derived from other sources, was intended to be used in the support of the supplanting graded school with its greatly improved advantages for gratuitous education. This is certainly so, unless a different result is produced by the qualifying words following the transfer of the funds collected under the general law, \\\"not applicable to contracts heretofore legally made.\\\" Does this clause save the present contract and warrant its payment in the manner adopted ?\\nIn our opinion the committeemen were disabled to engage a teacher or to pay one after the act of 1883 was passed, the evident purpose of which is to adopt the facilities for a better education, supplied by a graded school, which, with the means at the disposal of the trustees, it was hoped would be kept up for forty weeks in the year; ch. 220, sec. 4.\\nIt could not have been intended to cripple the latter by a continuance of the former district school and the use of the funds in its support. All the resources for the maintenance of the substituted graded school were required, and hence the action of the committee in keeping in operation the other school was unauthorized.\\nBesides, this section simply means not that the funds shall remain in the defendant's hands for disbursement in meeting pre-existing valid contracts, but that such contracts must be paid before the moneys can be used for the graded school. The transfer is subject to the incumbrance. Still it must pass into the hands of the new depository, and in his hands is first applicable to the antecedent obligations incurred, and then to the use of the graded school. Hence, there was no breach of the defendant's bond in refusing to recognize the authority of the committee to direct the payment whose functions had been wholly withdrawn.\\nIf the plaintiff has any redress she has not pursued the proper course to obtain it, but should make her demand of the trustees, and we do not mean to intimate that her claim upon the fund is valid.\\nWe therefore concur in the ruling of the Court that the plaintiff cannot recover, and in dismissing the action at the appellant's costs.\\nNo error. Affirmed.\"}" \ No newline at end of file diff --git a/nc/8648956.json b/nc/8648956.json new file mode 100644 index 0000000000000000000000000000000000000000..774c2cea39a753d8b0b91e8ff9c21ce3ad1ec7fb --- /dev/null +++ b/nc/8648956.json @@ -0,0 +1 @@ +"{\"id\": \"8648956\", \"name\": \"FRANK & ADLER v. ROBINSON & HOLT et als.\", \"name_abbreviation\": \"Frank v. Robinson & Holt\", \"decision_date\": \"1887-02\", \"docket_number\": \"\", \"first_page\": \"28\", \"last_page\": \"33\", \"citations\": \"96 N.C. 28\", \"volume\": \"96\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:29:31.058443+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FRANK & ADLER v. ROBINSON & HOLT et als.\", \"head_matter\": \"FRANK & ADLER v. ROBINSON & HOLT et als.\\nFraudulent Conveyances\\u25a0 \\u2014 \\u25a0Injunction\\u2014Code Practice.\\n1. The insertion in a deed of trust of a provision that the trustee shall employ the assignor at a fixed salary to help dispose of the property conveyed, does not render the deed void upon its face, but furnishes evidence of a fraudulent intent, proper to be submitted to the jury.\\n2. An injunction will be continued to the hearing to retain control of a trust fund, when the rights of the parties are doubtful, and the defendant threatens to remove the fund beyond the jurisdiction of the Court.\\n3. In such case the Court may allow the defendant to dispose of the property, upon his giving bond to protect the other claimants.\\n4. While 'a creditor can issue execution and sell property disposed of in fraud of creditors, this does not prevent a court of equity from restraining the fraudulent donee until the question of fraud can be-tried, so that the property can be sold free from any cloud, and under the Code practice, all this may he done in one action.\\n(Morris v. Willard, 84 N. C., 203; Clark v. Bonner, 1 Dev. & Bat. Eq., 608; Bethel v. Wilson, Ibid., 610; Bank v. Harris, 84 N. C., 206; Mebane v. Layton, 86 N. C., 571; cited and approved).\\nMotion to continue an injunction to the hearing, made in civil action in the nature of a creditor\\u2019s bill, pending in the Superior Court of Vanoe county, heard by Connor, Judge, at Chambers, in Henderson, on March 30, 1886.\\nThe defendants J. I. Robinson and George Holt, as partners of the mercantile firm of Robinson & Holt, becoming largely indebted in carrying on their business, on March 17th, 1886, conveyed by deed \\u201c their stock of goods in the store of Mr. Alley, estimated to be of the value of $4,000, more or less, and credits,\\u201d with a reservation of the constitutional exemption of $500 to each, to the defendant H. T. Watkins, in trust to secure certain preferred and recited , debts in the deed mentioned, and contained in schedules A and B, annexed to it.\\nThe trust declared is in these words :\\n\\u201c But on this special trust, nevertheless, to take possession of the same, and after said exemptions shall have been set aside, to take an inventory of said goods, and then to sell the same, with all reasonable dispatch, either privately or publicly, as in the opinion of said trustee may be most advantageous to all parties interested in this trust; also to collect the said debts if possible. The said trustee is to employ the said Robinson and said Holt as salesmen, at the sum of fifty dollars a month, and all other assistance that may be necessary to aid in carrying out this trust; to rent a store room for such time as may be necessary. ' The trustee is to be paid the proceeds of each day\\u2019s sales at the close of each day, but he is to be held personally responsible for only such sum as he .shall actually receive.\\u201d\\nThe deed then directs the funds to be applied to the expenses of administering the trust; a commission of five per cent, to the trustee ; two small sums, in amount $30.50; then to the debts enumerated in schedules A and B, successively.\\nThe debts set out in schedule A to be first provided for, are in the aggregate $2,734.83, whereof $1,180.17 purports to be due the defendant Isaac Eigenbrun, a resident of Petersburg, in Virginia.\\nLate at night on March 19th, two days after the execution of the trust deed, the trustee, li. T. Watkins, with his assignees, Robinson and Holt, executed a deed to Eigenbrun for the recited consideration of $2,900, wherein they convey all the goods then in the store to him, except the amount set aside and allowed the debtors for their several personal property exemptions.\\nThe present suit, at the instance of certain unsecured creditors, only one of whose claims was then due, and that by judgment rendered by a justice of the peace, and in behalf of all others, is prosecuted to impeach the deed in trust as fraudulent upon its face and in fact, and to have it declared void, so that the property may be secured and appropriated to the general indebtedness, without, regard to priorities.\\nThe complaint, with its accompanying exhibits, was laid before the Judge, after due verification, in support of a rule to be served on defendants, requiring them to appear before him on March 30th, at Henderson, and show cause why the prayer of the plaintiffs for an order restraining the defendants from disposing of any of the property or its proceeds, and the appointment of a receiver to take charge of it, should not be granted.\\nThe order was accordingly made, and pending the proceeding the defendants restrained from removing or in any manner disposing of the property. The application was heard on the day designated, upon the complaint and answer, then put in by all the defendants, and several other affidavits. The answer is an explicit denial of fraud, and sets out in great detail and particularity the circumstances attending the making of the deed, and the steps taken in its execution, and other facts bearing upon the controversy. The only matters shown in the affidavits, and appropriate to the motion, are:\\n1. That the sum to be paid the assignors is largely in excess of the amount usually paid in Henderson for the services of experienced clerks and salesmen.\\n2. That the inventory taken of the goods the next day after the assignment by an agent of the trustee, aided by the assignors, with their original cost, showed them to consist of Winter and Fall goods left over from the past season, of the value of $2,984.58, while their real value did not exceed two thirds of that sum.\\n3. That defendant Eigenbrun, on the morning of the 20th, placed two agents, Joyner and Davis, in charge of the store, without others, and directed the former to sell the goods according to his judgment to the best advantage, and that for the five days following the sales were only $119.56, none being disposed of below its value.\\n4. That the trustee, while drawing the deed, said to the assignors that he would want to employ them as salesmen at $50 per month, but they did not insist on this being clone, and that in so acting, the trustee regarded that as not an unreasonable compensation for the services of persons so competent to render them.\\nUpon the hearing, and it appearing that the defendant Eigenbrun, a non-resident, is disposing of the goods with a view to their removal out of the State, it was adjudged: \\u201c That the restraining order, as to the over due debt, be continued, and that J. R. Young, Clerk, be and he is hereby appointed receiver, with power and authority to take into his possession so many of said goods as will in his judgment be sufficient to pay said judgment, ($103.63, with interest from March 19th, 1886, and costs,) and the costs herein, and hold the same subject to the further order of this Court. It is further ordered, that if said defendant Isaac \\u00c9igen-brun file with said clerk an undertaking with sufficient security, to be approved by said clerk, in the sum of three hundred dollars, conditioned to pay the plaintiffs Jacob Hecht & Co. such sum as they may recover of him on account of said judgment, if said assignment and bill of sale as set forth in said complaint be adjudged fraudulent and void, that he may proceed to sell and dispose of said goods, and said receiver shall forbear to enter upon the discharge of the duties imposed upon him by this order. That this cause be continued for further orders.\\u201d\\nProm this judgment, the defendants appealed.\\nMr. T. M. Pittman, for the plaintiff.\\nMr. K C. Smith, for the defendants.\", \"word_count\": \"1814\", \"char_count\": \"10243\", \"text\": \"Smith, C. J.,\\n(after stating the facts). The provision in the deed which requires the employment of the assignors, debtors, by the trustee, in disposing of the goods, and the payment for the services of eacli at the rate of $50 per month, while we are not prepared to say it vitiates and avoids the conveyance, is so unusual and so obviously for their benefit, while in detriment to the trust fund, that it furnishes evidence of a fraudulent intent, proper, with other facts attending the transaction, to be submitted to a jury.\\nAs the removal of the goods by the non-resident claimant, unless the Court interposes, might render the effort to secure them fruitless, even in the event of the plaintiffs' successful prosecution of their action, it presents a case of possible irreparable injury, which warrants the judgment. There is not an absolute interdict put upon the claimant, but he is only required to surrender so much of the property as will meet the judgment, or he is allowed to retain and dispose of all, upon giving an undertaking, properly secured, to pay the judgment, if upon the final hearing the creditor shall be declared to have the preferable right to have his debt satisfied therefrom.\\nAs the fund is under the control of the Court, and the result left in doubt, it will retain it, to await the determination of the controversy, on such terms as will be least onerous to the defendant, and yet sufficient for the plaintiff. The practice in this regard is well settled, and'we refer to but a single case, Morris v. Willard, 84 N. C., 203. We do not pass upon the question of fraud, but leave it to the verdict of a jury upon an issue framed to present it.\\nThe appellants also except to the exercise of the invoked jurisdiction, because the law gives a direct remedy, and the property, upon the allegations in the complaint, can be seized and sold. While it is true that property liable to final process, and fraudulently alienated by the debtor, is exposed to the creditor's direct access in suing out execution, it is equally true that when he has obtained judgment and issued a fruitless execution, he may ask the Court to adjudge the fraud and pronounce the nullity of the assignment, so that a good title may be sold and full value obtained. Clark v. Bonner, 1 D. & B. Eq., 608; Bethel v. Wilson, Ibid., 610; and under the present practice all this may be done in one action. Bank v. Harris, 84 N. C., 206; Mebane v. Layton, 86 N. C, 571.\\nThere is no error, and this opinion will be certified to the Court below for its further action, according to The Code, \\u00a7962.\\nThe appellants will pay the costs of the appeal.\\nNo error. Affirmed.\"}" \ No newline at end of file diff --git a/nc/8649614.json b/nc/8649614.json new file mode 100644 index 0000000000000000000000000000000000000000..322a75914b618421c778942d24c6b1d774777e22 --- /dev/null +++ b/nc/8649614.json @@ -0,0 +1 @@ +"{\"id\": \"8649614\", \"name\": \"W. S. CARTER et al. v. S. A. LONG et al.\", \"name_abbreviation\": \"Carter v. Long\", \"decision_date\": \"1894-02\", \"docket_number\": \"\", \"first_page\": \"187\", \"last_page\": \"193\", \"citations\": \"114 N.C. 187\", \"volume\": \"114\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:41:35.204285+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"W. S. CARTER et al. v. S. A. LONG et al.\", \"head_matter\": \"W. S. CARTER et al. v. S. A. LONG et al.\\nEjectment \\u2014 Effect of Satisfaction by Defendants in Ejectment of Judgment for Value of Land \\u2014 Warranty\\u2014Mutual Warranties.\\n1. Where, under section 484 of The Code, the plaintiffs in an action of ejectment elect to accept the valuation of the land fixed by the jury and the defendants satisfy the judgment, the effect of such satisfaction is to evict the defendants as heirs of an ancestor under whom they claimed and immediately to invest them with the title as purchasers from the plaintiffs and they thereafter do not hold as heirs of their ancestor.\\n2. In such case the d\\u00e9fendants, having been evicted as claimants under their ancestor, may recover on the broken general covenant of warranty which a grantor had made to such ancestor and his heirs.\\n8. Where there have been a conveyance and reconveyance of land with covenants of warranty, in order that they may cancel each other, they must be like covenants; therefore, where C. conveyed to S. with special warranty and R. reconveyed to C. with general warranty the covenants do not mutually cancel each other, and, upon eviction by a stranger under a paramount title, C. or his heirs may recover damages for the breach from S. or his heirs.\\nThis was a special prooeedixg brought before the Clerk of the Superior Court of Hyde County, and, upon issues raised on the pleadings, it was transferred to the civil issue docket and tried before Graves, /., and a jury, at Fall Term, 1898, of said Court,\\nThe pertinent facts'are stated in the opinion of Associate Justice Burwkll. .\\nThe issues submitted to the jury and the responses thereto were as follows:\\n\\u201c 1. Did David Carter convey to Caleb Spencer, as alleged bj*- defendant? Answer, Yes, as set out in the deed, September 1, 1847.\\n\\u201c2. Did assets descend from the said David Carter to the plaintiffs, and to what amount? Answer, Real estate, $50,000 ; personal, $10,000 or more.\\n\\u201c3. What price did Caleb Spencer pay David Carter for the land? Answer, $1,250.\\n\\u201c4. What price did David Carter pay to Caleb Spencer for the reconveyance of the land described in deed of September 1, 1847? Answer, $3,000.\\n\\u201c5. P\\u00edas the warranty in the deed from Caleb Spencer to David Carter been broken? Answer, Yes.\\n\\u201c6. What damages have plaintiffs sustained thereby? Answer, None.\\n\\u201c7. Has the warranty in the deed from David Carter to Caleb Spencer been broken? Answer, Yes.\\n\\u201c8. What damages have the defendants sustained by reason of the breach ? Answer, None.\\n\\u201c9. Is the defendant S. A. Long, administrator cl. b. n. of Caleb Spencer, indebted to the plaintiffs, and if so, in what amount? Answer, Nothing.\\u201d\\nUpon the sixth, seventh and ninth issues his Honor charged:\\n\\u201cAs to the sixth issue, your answer should be \\u201c None,\\u201d for it is shown to you that David Carter conveyed to Caleb Spencer-in 1847 with a warranty, and that the plaintiffs claim under David Carter, and they are not entitled to any damages, for they are estopped and rebutted by the deed of their ancestor.\\u201d (To this part of the charge the plaintiffs excepted).\\n\\u201c Upon the seventh issue the defendants insist that they have shown that there was a better title than the Carters\\u2019, in the Borden heirs, and that they established that better title. You will then answer that issue, Yes.\\u201d (To this part of the charge the plaintiffs excepted).\\n\\u201cAs to the ninth issue, under the rules of law estop-ping the plaintiff's and rebutting them, the defendant Long,\\\" as administrator, is not indebted to plaintiffs.\\u201d (To this part of the charge the plaintiffs excejrted).\\nThere was judgment for the defendants upon the issues as found by the jury, and plaintiffs appealed.\\nMr. Charles S. Warren, for plaintiffs (appellants).\\nNo counsel contra.\", \"word_count\": \"1995\", \"char_count\": \"11457\", \"text\": \"Burwell, J.:\\nThe plaintiffs are the heirs at law of David Carter. In the year 1847 he purchased of one Borden a tract of land containing one hundred acres and took a deed conveying said land to him in fee and containing full warranties. In 1847 he sold fifty' acres of this land to Caleb Spencer (whose administrator and heirs are defendants in this action) and executed to him a deed in fee-simple, in which deed he put the following words: \\\"To have and hold the above described land with all the rights and titles I purchased of the said .James W. Borden, and I hereby agree to warrant the right and title of the same from me, my heirs and assigns, forever.\\\" In the year 1851 Caleb Spencer conveyed to David ('arter a tract of three hundred acres, including the aforesaid fifty acres, and in his deed put the following words: \\\"To have and to hold the above described land and premises, together with all and singular the rights, privileges and appurtenances to him, the said David Carter, his heirs and assigns, forever, and I, the said Caleb Spencer, do covenant and agree that I am lawfully seized and possessed of the aforesaid land and premises, and have full power to sell and convey the same in manner and form aforesaid, and do by these presents bind myself, my heirs and executors or administrators, to warrant and forever defend the same against the lawful claim or claims of any and all persons whatsoever.\\\"\\nDavid Garter had possession of this land at his death, holding the same under his deed from Spencer above mentioned, and his. heirs held it when the children of James W. Borden brought suit in the year 1888 to recover the one hundred acre tract conveyed to David Carter in 1847, as stated heretofore, alleging that James W. Borden had therein only an estate for life, and that upon his death, which had occurred, the land became theirs. To that suit none of the defendants were parties. In that cause there was a verdict declaring that the plaintiffs (the Bordens) were the owners of the land; that the defendants (the Carters) unlawfully withhold the possession from them, and that the value of the land, \\\" exclusive of betterments,\\\" was fifteen hundred dollars. The one hundred acres thus recovered by the Bordens included the fifty-acre tract conveyed, as heretofore stated, by Carter to Spencer, and by Spencer to Carter. According to the provisions of section 484 of The Code the plaintiffs signified their election to accept the sum fixed by the jury as the value of the land, \\\"exclusive of betterments,\\\" and therefor to relinquish their estate in the premises to the defendants, the Carter heirs. A judgment was entered in accordance with this verdict and election, and the defendants, the Carters, afterwards paid the same and thereby acquired the title that the Borden children had to the whole tract of one hundred acres. They seek here to recover one-haif the sum so paid by them, and no more.\\nIt is to be noted here that the legal effect of this judgment and its satisfaction by the plaintiffs in this action was to evict them from the land as heirs of David Carter, Spencer's vendee, and immediately to invest them with the title of the Bordens and their right of possession. Thereafter they held the land not as heirs of Carter, but as purchasers from the Bordens. The fact that they own and possess the land does not affect favorably or unfavorably their cause of action asserted in this suit. As heirs of Spencer's vendee they claimed the land. That claim proving ineffectual against the Bordens, as they allege, they have been forced to abandon that claim, and as heirs of Carter, Spencer's vendee, with full general warranty, they insist that, because of their eviction from the land, Spencer's covenant, made not only with Carter, but also with Carter's heirs, was broken, and immediately there arose in their favor a cause of action for damages, which they are asserting here.\\nIt seems to be conceded by the defendants that if the plaintiffs were really evicted by those having a superior title the estate of Spencer would bo liable to them for damages on the covenants contained in his deed to Carter but for the fact that Carter had himself conveyed the premises to Spencer, and their contention seems to be that the plaintiffs, being heirs of Carter, are estopped by his deed to Spencer from bringing an action on the covenant in Spencer's deed to him. Or, to put their contention in another phase, they seem to insist that these mutual covenants between Carter and Spencer in effect cancel one another. This would no doubt be true if the covenants were alike. For illustration: If A for one thousand dollars conveys land to B with general warranty, and B afterwards conveys it back to A for one thousand dollars with general warranty also, and A is evicted by a stranger whose title is paramount and who does not claim under B, the former (A) will not be allowed to maintain an action for damages on the covenant contained in B's deed to him. One reason for this rule is the prevention of circuity of actions. Silverman v. Loumis, 104 Ill., 137. The recovery of A against B, if allowed under the circumstances detailed, above, would itself give to B an identical cause of action against A. To avoid such result the rule which is supported by the authorities above cited declares that the covenant in the one deed cancels that in the other. \\\"Where, after a conveyance with covenants, the same premises are reconveyed to the grantor by his grantee with like covenants, the law construes such covenants as mutually canceling each other, so that no action can be maintained on them by either of the parties or their assignees.\\\" 2 Warville on Vendors, 429. If the deed from Spencer to Carter had contained no warranty at all, it would yet have effected an extinguishment of Carter's warranty to him, for such a conveyance would have worked an assignment of Carter's obligation to himself, and a man cannot warrant land to himself or be an assignee of himself. Coke on Lit-' tleton, sec. 743 ; Brown v. Metz, 33 Ill., 339. But to effect this result they must be like covenants. If A's covenant with B is a special warranty only against himself and his heirs, while B's covenant is a general warranty against all persons whatsoever, the eviction of A by a stranger, as stated above, works a breach of B's covenant with A, but no breach of A's covenant with B. In such case A could recover of B, his covenant being broken, but then B could not recover of A, for his covenant had not been broken.\\nApplying what has been said to this case, we find that the covenant in Carter's deed to Spencer is not like that in Spencer's deed to Carter. The latter's covenants, upon which the plaintiffs rest their action, is a full general warranty against all persons whatsoever. The former's covenant is a special warranty against the covenantor and his heirs and against no one else. The eviction of the Carter heirs by the Bordens, if the title of the latter was paramount as alleged, worked a breach of Spencer's covenant with Carter and his heirs. That eviction did not work a breach of Carter's covenant with Spencer and his heirs and assigns, for the Bordens were strangers to Carter and to his title.\\nIt follows from what has been said that there was error in the instructions given to the .jury upon the sixth, seventh and ninth issues. Upon the evidence introduced the seventh and eighth issues should not have been submitted to the jury, and, upon the facts established by -the verdict on the third, fourth and fifth issues, there should have been a judgment for plaintiffs for the sum demanded in the complaint, that being much less than the purchase-money paid by Carter to Spencer. . Error.\"}" \ No newline at end of file diff --git a/nc/8650209.json b/nc/8650209.json new file mode 100644 index 0000000000000000000000000000000000000000..394d14e442e27f41d53b45167e2de49ff65f6af8 --- /dev/null +++ b/nc/8650209.json @@ -0,0 +1 @@ +"{\"id\": \"8650209\", \"name\": \"W. P. COLE v. JOHN LAWS\", \"name_abbreviation\": \"Cole v. Laws\", \"decision_date\": \"1891-02\", \"docket_number\": \"\", \"first_page\": \"185\", \"last_page\": \"187\", \"citations\": \"108 N.C. 185\", \"volume\": \"108\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T17:19:19.919611+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"W. P. COLE v. JOHN LAWS.\", \"head_matter\": \"W. P. COLE v. JOHN LAWS.\\nRegister of Deeds \\u2014 Marriage\\u2014Penalty\\u2014Deputy.\\nA Register of Deeds cannot delegate to another the duty of making i he required reasonable inquiry into the legal competency to marry, of persons applying for a license.\\nCivil action-, tried at March Term, 1890, of Orange Superior Court, Arm,field, J., presiding, to recover the penalty for imprudently issuing a marriage license.\\nOnly so much of the testimony as relates to the point decided is reported. See same case in 104 N. C., 651.\\nThe plaintiff introduced the marriage license, which was in the usual form, and testified: \\u201cMollie Cole is my daughter. She lacked ten days of being fifteen years old when she was married. I never consented to the marriage in writing, or otherwise. She has always lived with me.\\u201d\\nPlaintiff rested, and defendant testified: \\u201c I am Register of Deeds, and have been forty or forty-five years. Merritt Cheek was my deputy at Chapel Hill, twelve miles from Hillsboro. Cheek was a special deputy to issue marriage license and for no other purpose. He wras a Justice of the Peace. When I appointed, him, and several times after-wards, I gave him particular instructions, and called his attention to the law and instructed him to issue no license without complying with the law as to inquiry. I signed the license in blank and gave it to him with a number of others signed in blank. It is filled up in his handwriting and it is his name and handwriting signed to the certificate of marriage. My instructions were as to all licenses, and not as to this one specially. I was not present when this one was filled up, and did not know of it until after the marriage. Cheek performed no other duties than to issue licenses.\\u201d\\nFrom the judgment rendered on a verdict for the plaintiff the defendant appealed.\\nMr. John Manning, for plaintiff.\\nMessrs. John W. Graham and A. W. Graham, for defendant.\", \"word_count\": \"621\", \"char_count\": \"3522\", \"text\": \"Shepherd, J.:\\nThe defendant is the Register of Deeds of Orange County, and as such is charged with the very important duty of issuing marriage licenses. It is to be assumed that he was elected to the said office in view of his intelligence, discretion and general fitness for the position, and as to the discharge of the particular duty in question, the public have a right to require of him the active exercise of these qualities. The law provides that he shall make reasonable inquiry as to the age of persons desiring a license to marry, and that if, without such reasonable inquiry, he issues such license without the consent of the father, etc., where either of the persons is under the age of eighteen, he shall \\\" forfeit and pay two hundred dollars to any person who shall sue for the same.\\\" The Code, \\u00a7 1816. Did the defendant make such reasonable inquiry in the present case? According to his own testimony he made no inquiry whatever, and the license was issued by another person who, as \\\"special deputy to issue marriage licenses\\\" and who resided twelve miles from the county seat, was authorized to fill up blank licenses signed by the defendant and issue the same. Surely this is not a performance of the duty which the law imposes upon him, and we are clearly of the opinion that upon these facts, he has incurred the penalty sued for. This being our' view of the law, the exception addressed to the ruling of his Honor on the question as to whether the \\\"special deputy\\\" made reasonable inquiry, become immaterial, and if there was error it would be harmless, and therefore, not a ground for a new trial.'\\nAffirmed.\"}" \ No newline at end of file diff --git a/nc/8651137.json b/nc/8651137.json new file mode 100644 index 0000000000000000000000000000000000000000..4149c824451a3f2a82a4ea91bed9db654fc566dc --- /dev/null +++ b/nc/8651137.json @@ -0,0 +1 @@ +"{\"id\": \"8651137\", \"name\": \"CHAUNCEY HARRELL v. THE WILMINGTON AND WELDON RAILROAD COMPANY\", \"name_abbreviation\": \"Harrell v. Wilmington & Weldon Railroad\", \"decision_date\": \"1890-02\", \"docket_number\": \"\", \"first_page\": \"258\", \"last_page\": \"266\", \"citations\": \"106 N.C. 258\", \"volume\": \"106\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:11:13.795791+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CHAUNCEY HARRELL v. THE WILMINGTON AND WELDON RAILROAD COMPANY.\", \"head_matter\": \"CHAUNCEY HARRELL v. THE WILMINGTON AND WELDON RAILROAD COMPANY.\\nRailroad, Company \\u2014 Non-shipment of Freight \\u2014 Action for Penalty \\u2014 Agency\\u2014Delivery\\nIn an action against a railroad company for a penalty, under section 1967 of The Code, it was in evidence that plaintiff carried a bale of cotton to defendant\\u2019s warehouse and \\u2019found the agent and one R. in the office; that he said he wished to deposit a bale of cotton; whereupon R. went with him, weighed the cotton and gave him a bill of lading in the agent\\u2019s presence, with the agent\\u2019s signature \\u201cper R.\\u201d It was also in evidence that R. had been in the agent\\u2019s office several months; that he had delivered freight; that eleven days thereafter plaintiff found that the cotton had not been shipped, and heard the agent abuse R. for carelessness: Held, that there was sufficient evidence to warrant the jury in finding a verdict for the plaintiff, upon an issue as to whether the cotton had been delivered to tne defendant.\\nThis was a civil action to recover a penalty under section 1967 of The Code, begun before a Justice of the Peace and tried, on appeal, before Bynum, J., at November Term, 1889, of DupliN Superior Court. '\\nThere was judgment for the plaintiff, and the defendant appealed.\\nThe facts are stated in the opinion'.\\nMr. W. R. Allen, for the plaintiff.\\nMessrs. G. A. Ramsay (by brief) and Geo. Rountree, for the defendant.\", \"word_count\": \"2893\", \"char_count\": \"16449\", \"text\": \"Davis, J.:\\n\\\"By consent, the only issue submitted to the jury was whether the cotton in controversy was delivered by plaintiff to defendant company on the 13th day of November, 1888.\\\"\\nThe defendant insists that there was no evidence sufficient to go to the jury, upon which the instructions of his Honor, set out in the record, and excepted to, could be based, and the instructions were misleading.\\nAs the sole questions presented for our consideration are involved in the single question as to whether there was any evidence to warrant the instruction given, we reproduce only so much of the case on appeal as relates to the charge of his Honor and the evidence relied on by the plaintiff to sustain it.\\nChauncey Harrell, the plaintiff, was sworn in his own behalf, and testified that on the 13th day of November, 1888, he carried a bale of cotton to the defendant's warehouse at Duplin Roads, and went to the office of the Railroad Company and saw in the office one Beall, the agent of the company, and also one Robinson; that witness said, \\\" Good morning,\\\" and, without addressing his remarks to any particular one, said, \\\"I wish to deposit a bale of cotton;'' whereupon, Robinson went with witness and weighed the cotton, and gave witness a bill of lading therefor; that the office is about six feet by ten in size; that Beall and Robinson were in the office when witness went there; that witness does not know whether Beall heard his remark or not; when witness went back to the office, Robinson gave him the bill of lading, of which the following is a copy, to-wit:\\n\\\"November 13, 1888.\\n\\\"Received of Chauncey Harrell, D. Roads, N. C., one bale of cotton marked, numbered and weighed as below, to be transported at company's convenience by the Wilmington and Weldon Railroad Company unto C. J. Southerland, of Wilmington.\\nNo. Bales Marks Weight\\n1 C. H. 500\\n(Signed) \\\"B. J. Beall,\\n\\\"Per R.\\\"\\nBeall and Robinson were in the office; that the next time witness saw the cotton was the 24th of November; it was in the same warehouse, and he ordered it shipped that day, and it was shipped. No new bill of lading was given him that day. \\\"Witness made complaint to Beall. He (Beall) cursed and abused Robinson, saying it was the third time he had done so that Fall.\\nCross-examined, witness testified that the cotton was shipped the 24th of November; that on the 13th, when he called to deposit the cotton, Beall was at the telegraph instrument, but he did not think he was operating; that witness simply went to the door of the office, and after bidding them \\\"good evening\\\" said he wanted to deposit a bale of cotton for shipment; that he did not demand a bill of lading on the 24th, but had demanded it on the 13th; that Beall was abusing Robinson for carelessness; that witness did not hear Beall say that Robinson had no right to receive freight and give bills of lading, and never heard Beall say so.\\nRe-direct \\u2014 Robinson and Beall were three or four feet apart at the time witness went to office on the 13th. Robinson had been staying there several months; witness had seen Robinson handling and delivering freight, and witness had heard that he was studying telegraphy there. Witness never saw Robinson give a bill of lading for freight before, but had seen him deliver freight to Malard and to Murphy Brothers. Witness cannot single out any other person to whom Robinson delivered freight. He saw Robinson open warehouse door and assist those parties to get goods out, but does not know whether the agent was there then or not; does not remember whether he saw him there or not. Witness has seen parties go to Robinson and tell him they had freight, and he would show them where to put it on the platform. Witness has seen a party take a coop of chickens to Robinson to ship, but at such time witness does not know whether the agent was present or not; does not know how long this was before shipment of his own cotton \\u2014 probably three or four months.\\nAt the plaintiff's request his Honor, in his charge, instructed the jury as follows, to-wit:\\n\\\" 1. That, while the agent Beall could not delegate his authority, he could employ a servant; and if the jury believe that said Beall employed Robinson to assist him in his office 'by the payment of money or by teaching him telegraphy for his services, and that it was within the scope of Robinson's employment to receive freight and give bills of lading, and this was known to defendant company, and they assented to it, and that said Robinson, acting under such employment, received the bale of cotton and gave the bill of lading, the act of Robinson would be the act of Beall,, and the jury should, in such case, answer the issue in the affirmative.\\n\\\" 2. That the defendant company may have more than one agent at its several depots; and if the jury believe that Robinson was in the habit of- receiving freight and giving bills of lading, and doing other acts'for said company with its knowledge and acquiescence, and that said Robinson received the bale of cotton of the plaintiff and gave the bill of lading in evidence, the said company would be bound by the acts of said Robinson, and the jury should answer the issue Yes.\\n\\\" 3. [Being a modification of plaintiff's third requested instruction.] If the defendant company knew that Robinson had been receiving freight, although he had not been employed by them, and they had permitted him to do this, and the plaintiff knew this; or, if knowing Robinson had been receiving freight, they so acted on his receipts as to induce the public to believe that he was th\\u00e9ir authorized agent, they would be bound by his action, and the jury should answer the issue Yes.\\n\\\" 4. [Being a modification of plaintiff's fourth requested instruction.] That if said Robinson had no authority from Beall or the defendant company to receive the bale of cotton and give the bill'of lading, the said company would still be bound by the acts of Robinson if it ratified them; that said company could not ratify a part of his acts and repudiate a part, but must ratify the whole or repudiate the whole; that the fact that the defendant company shipped the bale of cotton on the bill of lading given by Robinson, and gave no new bill of lading, if the evidence satisfies the jury that the company, and not only Beall, knew it, is evidence from which the jury may infer that said company ratified the act of Robinson, and if the jury should find that the defendant company ratified the act of Robinson, they should answer the issue Yes, although they believe that Robinson had, in fact, no authority from Beall or the company.\\\"\\nTo these instructions the defendant excepts on the grounds\\u2014\\n\\\" 1. That there was no evidence that the defendant company had knowledge of, or assented to, or acquiesced in, any of the acts of Robinson in receiving freight and giving bills of lading for the same.\\n\\\" 2 That there was no evidence that Robinson had been in the habit of receiving freight and giving bills of lading therefor.\\n\\\" 3. That there was no evidence that the defendant company had previously so acted on the receipts of Robinson as to induce the public to believe that Robinson was its authorized agent,\\n\\\" 4. That there was no evidence that the defendant company had notice of the shipment of this cotton being made without a new bill of lading, and that without such notice they could not ratify such act. And the defendant insists that in said particulars there was misdirection of the jury in his Honor's charge.\\\"\\nThe defendant requested his Honor to instruct the jury as follows:\\n\\\" That in order to recover it was incumbent on the plaintiff to establish by proof that the defendant railroad company knew, or had reason, from observation, information, or otherwise, to believe that Robinson was acting for the railroad company in receiving freight, or that Beall actually knew of the receipt of this cotton, and made the receipt of it his own act. [That there being no evidence of either fact, direct or indirect, it is the duty of the jury to answer the issue No.]\\\"\\nHis Honor gave the instruction, except the part here enclosed in brackets, which part he refused to give. Defendant excepts for that \\u2014 \\\" First, there was no evidence that the defendant company knew, or had reason from observation, information, or otherwise, that Robinson was so acting for the company; second, that there was no evidence to go .to the jury that Beall actually knew of the receiving of this particular cotton, at the time of its receipt by Robinson, and made the receipt of it his own.\\\"\\nThe question for our consideration is not one of preponderance of evidence, but whether there was any evidence reasonably sufficient to go to the jury in the aspects of the case presented by the charge excepted to; for, if there was no evidence which the jury had a right to consider, or only a scintilla of evidence, or if there was no evidence.to which the instructions of his Honor were applicable, then, however correct they may have been as abstract propositions of law, the defendant would be entitled to a new trial. This is too well settled to need citation of authority.\\n1. As to the first exception, it is insisted that his Honor, in his charge, assumed that there was evidence from which the jury would be justified in finding \\\" whether Beall had employed Robinson to receive freight and give bills of lading, and this was known to the defendant company and they assented to it, and that said Robinson, acting under such employment, received the bale of cotton,\\\" whereas, as the defendant says, there was no evidence that the company knew of such employment or assented to it.\\nWhat is necessary to constitute notice or assent? In Wood's Railway Law, Yol. I, \\u00a7166, it is said: \\\"The law of agency is especially applicable to business corporations, because all their business must be conducted by agents. Especially is this the case as to railroad companies.\\\" And again, section 168: \\\"It is well settled that notice to an agent, actual or implied, relative to a matter affecting his agency, and while such agency exists, is notice to the principal, and such is also the 'rule as to a knowledge of facts relating to the business of his agency acquired while acting for his principal,\\\" &c.\\nAssuming, therefore, that Beall, by the maxim \\\"Delegatus non potest delegare,\\\" had no authority to employ Robinson as an agent for the r\\u00e1ilroad company \\u2014 if, in fact, he was acting as such \\u2014 notice or knowledge of the fact to Beall was notice to the company \\u2014 not only so, but if Beall employed Robinson as a servant to assist him, which we think he had a right to do, then Robinson's act was Beall's act, as much so as if performed by Beall himself. As a matter of fact, the receipt was signed \\\" B. J. Beall, per R \\\"\\nThe evidence for the plaintiff is to the effect that when he carried the cotton to the defendant's ware-room, Beall and Robinson were in the office \\u2014 a room about six feet by ten in size; that they were three or four feet apart; that, after salutation, he said, \\\"I wish to deposit a bale of cotton,\\\" whereupon Robinson went with him and weighed the cotton, and went back to the office and gave him the receipt, Beall and Robinson being in the office; that Robinson had been there several months; that he had seen him handling and delivering freight; that he had seen a.party take a \\\" coop of chickens\\\" to Robinson to be shipped; that when the cotton was shipped, no \\\"new bill of lading\\\" was given; that when he complained to Beall, \\\" he (Beall) cursed and abused Robinson, saying it was the third, time he had done so that Fall\\\"; that Beall was \\\"abusing him for carelessness; that he did not hear Beall say that Robinson had no right to receive freight and give bills of lading, and never heard him say so.\\\" Robinson was in the office with Beall when plaintiff said, \\\"I wish to deposit a bale of cotton,\\\" and if, when Robinson, instead of Beall, weighed the cotton and gave the receipt, it was the plaintiff's duty, before delivering the cotton to him and taking the receipt, to inquire by what authority he was acting, as insisted by the defendant, was it not more clearly the duty of Beall, who knew, or ought to know, what was being done in and about the office, to have acted himself and said, \\\"I am the man to receive your deposit of cotton; I am the agent, and not'Robinson; he has no authority \\\" ? So far from doing anything like this, according to the plaintiff's testimony, he never repudiated the act of Robinson, though performed in his presence,gave no other bill of lading, and only abused Robinson for \\\" care-lessnessimpliedly admitting that he had some duty about the office. But the defendant says, and it is conceded, that \\\" to constitute a delivery of property to a carrier's agent, in the proper sense, the thing offered for transportation should come into the hands of the carrier's agent for receiving freight \\u2014 not of any person whom the carrier may employ for other purposes.\\\" Did the plaintiff so deliver the cotton to the defendant's agent for transportation? The plaintiff carried the cotton, according to his testimony, to one of the regular places for receiving freight the defendant company. Both Beall and Robinson were in the office. He stated his wish without addressing either of them. Robinson went out and weighed the cotton, and went back into the office where Beall was and gave the receipt. Under the circumstances, would any \\\"plain man\\\" have stopped to question the authority of Robinson before taking the receipt?\\nThere was evidence.\\n2. As to the second exception, defendant says that there was no evidence that the company had \\\"more than one agent at their depots,\\\" and that there was not the slightest\\nevidence that Robinson ever \\\" received any freight or gave any bill of lading,\\\" etc. We think there was some evidence in the facts detailed in plaintiff's testimony. From the evidence, it appears that Robinson was engaged about the office, acting for defendant company, and Beall himself, abusing him for \\\"carelessness,\\\" said it was the third time he had \\u2022done so during the Fall. The evidence would warrant one going to the Duplin Roads Station, and, under the circumstances detailed by plaintiff, in supposing that Robinson was the agent, as on that occasion, in the presence of Beall, he discharged the duties of agent, and it only appears otherwise from the receipt, which seems to have been given in the office, in the presence of Beall.\\n3. The knowledge of Beall, as to Robinson's acts in and about the office, affected the company with notice, and what has been said in regard to the first and second exceptions applies to the third.\\n4. Robinson did nothing that it was not the duty of Beall to do. Beall was present. The cotton was in the defendant's warehouse and no receipt was given except that given by Robinson, and, without any other receipt, the cotton was shipped, and what has been said in regard to the other exceptions applies to the fourth, and also to that part of the instruction asked by the'defendant and refused by his Honor.\\nAffirmed.\"}" \ No newline at end of file diff --git a/nc/8652090.json b/nc/8652090.json new file mode 100644 index 0000000000000000000000000000000000000000..0b20014fa88c61ae313fc47d4ef6290c8c81d738 --- /dev/null +++ b/nc/8652090.json @@ -0,0 +1 @@ +"{\"id\": \"8652090\", \"name\": \"STATE v. WILLIAM SNEED\", \"name_abbreviation\": \"State v. Sneed\", \"decision_date\": \"1886-02\", \"docket_number\": \"\", \"first_page\": \"806\", \"last_page\": \"809\", \"citations\": \"94 N.C. 806\", \"volume\": \"94\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T20:32:25.325586+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. WILLIAM SNEED.\", \"head_matter\": \"STATE v. WILLIAM SNEED.\\nConvicts \\u2014 Power to Farm Out \\u2014 Escape.\\n1. The provisions of The Code, \\u00a73448, forbidding the hiring out of convicts, unless. the Court before which such prisoner was convicted shall so authorize in its judgment, only applies to farming out convict labor to individuals and corporations, and does not extend to eases of convicts employed on public works, and under the supervision and control of public agents.\\n2. So where a prisoner confined in the public jail was used by the county authorities to work on the public roads, the person in charge of him was guilty of' an escape for negligently allowing such person to make his escape.\\n(State v. Johnson, at this Term, cited and approved ; State v. Shaft, 78 N. C., 464, cited and distinguished).\\nIndictment for an. escape, tried before Meares, Judge, and a jury, at August Term, 1885,.of the Criminal Court of Meok-lenbueg- county.\\nThe defendant is charged with negligently permitting the escape of a prisoner, sentenced to imprisonment in the county jail, and under his care and control as guard. The jury rendered a special verdict, and find as follows:\\nAt August Term, 1883, of the Inferior Court of Mecklenburg county, Samuel Hutcheson was tried and convicted of larceny j and was sentenced to be imprisoned in the county jail, for the term of three years, at hard labor. . He was thereupon committed by the sheriff to the jail, and before his sentence was terminated, he was removed by the county commissioners to a stockade, for the security of prisoners employed in working the public roads, provided for-that purpose by the commissioners. The convict was placed in custody of the superintendent of the stockade, who was hired to oversee prisoners there confined, and to supervise the work on the public roads, as directed by the commissioners, but was not under bon'd, nor a deputy of the sheriff, or a constable. The defendant was employed by the superintendent, with the commissioners\\u2019 consent, as one of the guards at the stockade, to guard prisoners placed in charge of the superintendent, at a monthly salary. The convict had become what is known as a \\u201ctrusty,\\u201d and had been allowed to pass in and out of the stockade at all times, without hinderance.\\nIn June, 1885, the then acting superintendent, who had succeeded the former appointee, on leaving the stockade in the evening, with defendant in charge, specially directed the defendant, to let no one pass in or out of the enclosure, without his own permission. On the defendant\\u2019s saying such a course would be hard on the prisoners, the superintendent replied, that he must obey the order. During the night, the convict was allowed by the defendant to pass out at his request, and on his saying he would be back in a minute, but did not return, and thus made his escape.\\nUpon the foregoing, the substantial facts found by the jury, the Court was of opinion that the defendant was guilty, and so adjudged, imposing a fine of fifty dollars. From this ruling the defendant appealed.\\nAttorney General, for the State.\\n\\u25a0 Mr. W. P. Bynum, for the defendant.\", \"word_count\": \"1168\", \"char_count\": \"6769\", \"text\": \"Smith, C. J.,\\n(after stating the facts). The Act of March 6th, 1867, cli. 196, without the concluding proviso as found in The Code,- \\u00a73448, was in force when the case of the State v. Shaft, 78 N. C., 454, was decided, at February Term, 3 878, and in which it is held, that a prisoner, undergoing a sentence of imprisonment in the county jail for six months, for the offence of fornication and adultery, could be lawfully farmed out, and hired to his wife. In the opinion, RodMAN, J., makes the suggestion,, in view of the possible mischief of a provision, unrestrained in its terms, and which authorized the employment of convict labor \\\"for individuals or corporations;\\\" that the Legislature might see fit to amend the law, by leaving it to the Judge to say, in his sentence, whether the prisoner may he hired out or not;-or by allowing the hiring, only when the prisoner shall be in prison for non-payment of a fine.\\nThe suggestion seems to have attracted the attention of the General Assembly, and in the amendatory Act of March 13, 1879, cb. 218, this clause was added, as a third proviso: \\\"It shall not be lawful to farm out any such convicted person, who may be imprisoned for the non-payment of a fine, or as punishment imposed for the offence of which he may have been convicted, unless the Court before whom the trial is had, shall in its judgment so authorize.\\\" The Code, \\u00a72448.\\nThis proviso must therefore, have been intended, as argued by the Attorney General, to apply and be confined to the farming out of convict labor to \\\" individuals or corporations,\\\" the danger of abuse of which power, conferred without restraint, was made manifest in the case referred to. It does not extend to labor employed upon public works, and under the supervision and control of public agents.\\nThe next two sections look to a similar employment of convicts in the penitentiary, under a written contract with the county and municipal authorities, and while they are to \\\"be fed, clothed and quartered while in such service,\\\" by the board of directors or managers of the penitentiary, as in the case of the hiring of convicts to railroad companies, it is expressly provided, that if any person, charged in any way with the control or management of such convicts, shall negligently permit to escape, or shall maltreat them, every person so offending shall be guilty of a misdemeanor,\\\" &c., \\u00a73450.\\nWhile this provision primarily applies to escapes of convicts committed to the penitentiary, and employed by the county or municipal authorities in public works, it is in our opinion, but declaratory of a principle equally pertinent to convicts taken from the county prison, and placed in charge of guards or other superintending county or municipal officers. It is in each, a breach of public duty, and as much so in reference to the one as to the other class of convicts, allowed negligently to make their escape. The prisoner was in the lawful and immediate custody of the defendant, whose duty was to maintain that custody, and he is amenable to a criminal prosecution for wilfully allowing his escape. 2 Whar. Cr. Law, \\u00a72609.\\nWe shall not repeat what has been said in State v. Garrett Johnson, ante., in considering a similar accusation against a guard for permitting an escape of a prisoner, whose good conduct bad raised him to the dignity of being a \\\"trusty,\\\" as in the present case, and who had in like manner betrayed the confidence reposed in him, and forfeited his newly-acquired good name. The escape here, was the result of the direct voluntary act of the defendant, and in disregard of the command of his superior.\\nThere is no error. Let this be certified.\\nNo error. Affirmed.\"}" \ No newline at end of file diff --git a/nc/8652258.json b/nc/8652258.json new file mode 100644 index 0000000000000000000000000000000000000000..d55011167689cb0d527c59268eb281f04d365523 --- /dev/null +++ b/nc/8652258.json @@ -0,0 +1 @@ +"{\"id\": \"8652258\", \"name\": \"STATE v. A. G. GLOVER\", \"name_abbreviation\": \"State v. Glover\", \"decision_date\": \"1893-02\", \"docket_number\": \"\", \"first_page\": \"896\", \"last_page\": \"901\", \"citations\": \"112 N.C. 896\", \"volume\": \"112\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T16:59:39.708420+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. A. G. GLOVER.\", \"head_matter\": \"STATE v. A. G. GLOVER.\\nJurisdiction \\u2014 Extradited Criminal.\\n1. Except in tlie case of a fugitive surrendered by a foreign government under treaty stipulations, when a person is within the jurisdiction of a Court and there properly charged with crime, the Court may hold him and try him, no matter how he was brought within such jurisdiction.\\n2. Upon a fugitive\\u2019s surrender to the State demanding his return in pursuance of national law, he may be tried in the State to which he is returned for any other offense than that specified in the requisition for his rendition, and in so trying- him against his objection, no right, privilege or immunity secured to him by the Constitution and laws of the United States is thereby denied.\\nINDICTMENT for embezzlement, heard before II. .13. Carter, Judge of the Criminal Court of BUNCOMBE County, at January\\u2019Term, 1893.\\nFrom a judgment overruling the State\\u2019s demurrer to a plea to the jurisdiction the Solicitor appealed.\\nThe Attorney General, for the State.\\nMessrs. Cobb & Merrimon and W. W. Jones, for defendant.\", \"word_count\": \"1710\", \"char_count\": \"9897\", \"text\": \"Shepherd, C. J.:\\nThe defendant was indicted in the Criminal Court of Buncombe County for the embezzlement of certain funds which came into his possession while he was acting as the agent or servant for the Asheville Kaolin Company. Upon bis arraignment he pleaded, among other things, that the Court had no jurisdiction of his person, and the Court, upon demurrer; sustained the said plea and ordered that the defendant be' discharged from custody. From this judgment the State, through its Solicitor, appealed to this Court.\\nIt is a general principle of law, as laid down by the English and adopted by the American Courts, that when one is within the jurisdiction of a Court, and there properly charged with crime, the Court may hold him and proceed to his trial without any reference to the circumstances under which he was brought within such jurisdiction; and so firmly established is this principle that the Supreme Court of the United States has held that it would give no relief even where a person had been kidnapped in a foreign country and brought by force (without reference to any extradition treaty) within the jurisdiction of the State whose laws he had violated. And it was remarked by the Court that \\\"there are authorities of the highest respectability which hold that such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the Court which has the right to try him for such offense, and presents no valid objection to his trial in such Court.\\\" Ker v. Illinois, 119 U. S., 436; Mahon v. Justice, 127 U. S., 700; State v. Smith, 1 Bailes, S. C., 283.\\nIt is insisted, however, by the defendant that the principle above stated does not apply to his case, for the reason that he was surrendered by the State of Pennsylvania to answer a charge of obtaining money from the said Ashe-ville Kaolin Company under false pretenses, and he urges that the charge cannot be varied, and that he cannot be arrested or put upon trial for the embezzlement of the money of the said company, or, indeed, for any other ' offense until the particular charge upon which he was extradited has been disposed of and he has had reasonable time and opportunity to return to the State from whence he was taken.\\nIn support of this position we have been able to find but two cases in which the precise question now presented has been decided in this country. These are State v. Hall, 40 Kansas, 338, and Ex-parte McKnight, (Ohio), 28 N. E. R., 1034; and an examination of the opinions will disclose that they are founded upon a supposed analogy to the case of United States v. Rauscher, 119 U. S., 407, in which it is decided that the principle contended for prevails in cases where fugitives from justice have been surrendered by foreign countries under the stipulations of extradition treaties. There are two other cases (In re Cannon, 47 Mich., 481 ; Complin v. Wilder, 40 Ohio St., 130) in which a similar view was taken, but as thej7 related to arrests in civil actions of persons who had been extradited for criminal offenses, they cannot bo considered in point. In response to these it may be said that \\\"a controlling distinction to be noted is that a person against whom, it is sought merely to establish or enforce a civil liability has personal rights which are violated by his being brought into the jurisdiction by fraud while an offender against the criminal laws of the State acquires no right by his flight or absence from the jurisdiction which the Courts, in the administration of those laws, are bound to regard when he is again found within the jurisdiction.\\\" Lascelle v. State of Georgia, 16 S. E. R., 949.\\nIn opposition to the foregoing cases there is a very great preponderance of judicial authority. Ham v. State, 4 Tex. Appeals, 645; State v. Stewart, 60 Wis., 587; Post v. Cross, 135 N. Y., 336; Commissioners v. Wright (Mass.), 33 N. E. R., 82; In re Nules, 52 Vt., 609; In re Noyes, 17 Albany L. J., 407.\\nIVe are relieved, however, of the duty of passing upon the merits of these conflicting views, as the question involves the construction of a provision of the Federal Constitution and the laws made in pursuance thereof, and a recent decision of the Supreme Court of the United States has authoritatively put an end to all controversy upon the subject. The decision referred to is Lascelle v. The State of Georgia, supra, which was carried by writ of error to the Supreme Court of the United States and decided at its present term. The reasoning of the learned opinion of Lmnuax, J., of the Supreme Court of Georgia, is approved by the Court, and the distinction between the rights of a fugitive from justice under international and interstate extradition laws is clearly defined. A discussion of the question by this Court would amount'to but a repetition of the reasoning contained in the opinions delivered in the above-mentioned case, and it is believed that the following extracts from the opinion of the Supreme Court of the United will be sufficient to indicate the principle upon which the jurisdiction of the Courts of the demanding State in this and similar cases is sustained: \\\"The case of the United States v. Rauscher, supra, has no application to the question under consideration, because it proceeded upon the ground of a right given impliedly by the terms of a treaty between the United States and Great Britain, as well as expressly by the acts of Congress in the case of a fugitive surrendered to the United States by a foreign nation. That treatjq which specified the offenses that were extraditable, and the statutes of the United States, passed to carry it and other like treaties into effect, constituted the supreme law of the laud, and was construed to exempt the extradited fugitive from trial for any other offense than that mentioned in the demand for his surrender. There is nothing in the Constitution or statutes of the United States in reference to interstate ren dition of fugitives from justice which can be regarded as establishing any compact between the States of the Union, such as the Ashburton treaty contained, limiting their operation to particular or designated offenses. On the contrary, the provisions of the organic and statutory law embrace crimes and offenses of every character and description punishable by the laws of the State where the forbidden acts are committed. It is questionable whether the States could constitutionally enter into any agreement or stipulation with each other for the purpose of defining or limiting the offense for which fugitives would or should be surrendered. But it is settled by the decisions of this Court that, except in the case of a fugitive surrendered by a foreign government, there is nothing in the Constitution, treaties or laws of the United States which exempts an offender, brought before the Courts of a State for an offense against its laws, from trial and punishment, even though brought from another State by unlawful violence or by abuse of legal process. Kerr v. Illinois, 119 U. S., 436; Mahon v. Justice, 127 U. S., 700; Cook v. Kart, 146 U. S., 183. If a fugitive may be kidnapped or unlawfully abducted from the State or country of refuge, and be thereafter tried in the State to which he. is forcibly carried, without violating any right or immunity secured to him by the Constitution and laws of the United States, it is difficult to understand upon what sound principle can be rested the denial of a State's authority or jurisdiction to try him for another or different offense than that for which he was surrendered. *' But aside from this, it would be a useless and idle procedure to require the State having custody of the alleged criminal to return him to the State by which he was rendered up in order to go through the formality of again demanding his extradition for the new or additional offenses on which it is desired to prosecute him. The Constitution and the laws impose no such condition or requirement upon the State. Our conclusion is that upon a fugitive's surrender to the State demanding his return in pursuance of national law ho may be tried in the State to which he is returned for any other offense than that specified in the requisition for his rendition, and that in so trying him against his objection no' right, privilege or immunity secured to him by the Constitution and laws of the United States is thereby denied.\\\"\\nThe principles thus declared are applicable to this case, and the decision must be followed by the Court. Cooley's Const. Lim., 18. It is but just to Ins Honor that we should state that when he made this ruling there was, as we have seen, much conflict of judicial opinion upon the question, and that the case of Lascelle had not then been decided.\\nFor the reasons given the judgment must be\\nReversed.\"}" \ No newline at end of file diff --git a/nc/8653002.json b/nc/8653002.json new file mode 100644 index 0000000000000000000000000000000000000000..7ca176f3122ce0c41d9c008a1e2c54e015f34f24 --- /dev/null +++ b/nc/8653002.json @@ -0,0 +1 @@ +"{\"id\": \"8653002\", \"name\": \"STATE v. RACHAEL SHADE\", \"name_abbreviation\": \"State v. Shade\", \"decision_date\": \"1894-09\", \"docket_number\": \"\", \"first_page\": \"757\", \"last_page\": \"760\", \"citations\": \"115 N.C. 757\", \"volume\": \"115\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T22:04:58.944332+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. RACHAEL SHADE.\", \"head_matter\": \"STATE v. RACHAEL SHADE.\\nIndictment for Assault in a Secret Manner, what Constitutes\\u2014 Indictment, sufficiency of.\\n1. Under Laws 1887, chapter 32, making \\u201c an assault committed in a secret manner, by waylaying or otherwise,\\u201d an offence, an indictment omitting the words \\u201c by waylaying or otherwise,\\u201d in charging that offence, is sufficient.\\n2. \\\"Where an indictment otherwise unobjectionable is not sufficiently specific as to the nature of the charge, and the defendant fails to demand a bill of particulars before trial, after conviction the Court will not arrest the judgment for such objection.\\n3. Laws 1887, chapter 32, making \\u201c an assault committed in a secret manner, by waylaying or otherwise,\\u201d an offence, includes, in addition to those accompanied by waylaying, every other assault committed in a secret manner.\\nCriminal action, tried at September Term, 1894, of Burke Superior Court, before Allen, J.\\nThe indictment is, in substance, as follows: \\u201cThe jurors, etc., present that Rachael Shade, etc, unlawfully, wilfully, maliciously, feloniously and in a secret manner, and with a certain deadly weapon, to wit, a pistol, in and upon the body of one Rose Wright did make an assault with the intent then and there to kill the said Rose Wright, her the said Rose Wright did beat, bruise and seriously injure, against the form of the statute,\\u201d etc. The case states that the defendant was charged with committing a secret assault under chapter 32, Laws 1887, with a pistol upon Rose Wright, and evidence was offered by the State tending to prove the charge as alleged, and evidence in rebuttal was offered by defendant.\\nThere was a verdict of guilty, and defendant moved in arrest of judgment for that the indictment did not charge that the assault was committed by waylaying, and did not specify the secret manner in which it was committed. Motion overruled. Defendant excepted. No exception made to the charge. Judgment pronounced upon the verdict, and defendant appealed.\\nAttorney General and Mr. J. T. Perkins, for the State.\\nMr. S. J. Ervin, for defendant.\", \"word_count\": \"1134\", \"char_count\": \"6703\", \"text\": \"Avery, J.:\\nThe defendant's counsel moves in arrest of judgment on the ground that the indictment does not charge that the assault was committed by waylaying, and does not specify the secret manner in which it was committed. The gravamen of the offence created by the statute (Laws 1887, chapter 32) is that the assault must be committed \\\" in a secret manner with intent to kill \\\" the person assailed. The language which the defendant claims was not so followed in the indictment as to put him on notice of the precise nature of the offence with which he was charged, was \\\" by waylaying or otherwise.\\\" We think that the charge is sufficiently \\\"plain, intelligible and explicit\\\" (The Code, \\u00a71183) to enable the defendant to prepare his defence and to warrant the Court in proceeding to judgment in case of conviction. State v. Haddock, 109 N. C., 873. The trend of judicial decision and the tendency of legislation is towards the practical view that objections founded upon mere matter of form should not be considered by the Courts unless there is reason to believe that a defendant has been misled by the form of the charge, or was not apprised by its terms of the nature of the offence which he was held to answer. Where the defendant thinks that an indictment, otherwise objectionable in form, fails to impart information sufficiently specific as to the nature of the charge, he may before trial move the Court to order that a bill of particulars be filed, and the Court will not arrest the judgment after verdict where he attempts to reserve his fire until he takes first the chance of acquittal. State v. Brady, 107 N. C., 826. The statute denounces as criminal secret assaults with intent to kill, and after giving one explicit illustration, lest the maxim expressio unius exclusio ulterius might be invoked in its interpretation,- the Legislature added the words \\\"or otherwise,\\\" meaning thereby to include every other manner of making such secret attempts, no matter what might be the attendant circumstances. A Court is not bound, in seeking to arrive at the intent of the Legislature, to adopt the printer's punctuation, and we think that the purpose in passing the act of 1887 was to include, in addition to those accompanied by waylaying, every other assault committed in a secret manner.\\nIt seems to us no more necessary to set forth the attendant circumstances in the charge of a secret attempt to kill, than in an indictment under the statute for an attempt to destroy the reputation of an innocent woman, in which class of criminal actions this Court held in State v. McIntosh, 92 N. C., 794, that it was unnecessary. If it may be said to be the general rule that the word \\\"otherwise \\\" following an enumeration should be interpreted by supplying after it the words \\\" ejusden generis,\\\" this statute, like the famous section 9 of 27 Henry VIII. constitutes a very clear exception, because it is not indefinite, but must be construed as meaning \\\" otherwise in a secret manner.\\\" 17 Am. and Eng. Enc., 285. Indeed, in the only case involving a construction of the statute that has been before us (State v. Jennings, 104 N. C., 774) it was said arguendo that the statute included not only cases where the assailant was shown to have laid in wait, but also those where a person \\\"otherwise than by lying in ambush hides his purpose from the party assailed till it is too late to guard against its accomplishment.\\\"\\nIn the declaration of rights it is announced as a fundamental principle that \\\"in all criminal prosecutions every man has the right to be informed of the accusation against him\\\" (Constitution, Art. I., sec. 2); but the duty of protecting the public by providing for the speedy trial and punishment of the guilty and against the unnecessary detention in durance of the innocent, devolves upon the Legislature; along with that of guaranteeing to every person charged with crime ample opportunity to prepare for his defence. These two apparently conflicting duties seem to have been discharged and made consistent, in providing that a statement of a charge, which upon its face appears to be plain, intelligible and explicit, shall be sufficient as notice of its nature, subject to the right of the accused in apt time to ask for a more specific bill of particulars where any reasonable ground for making the request is shown. With such safeguards thrown around prosecutions, it must be the fault of the person charged if he goes to trial without being \\\" informed of the accusation against him.\\\"\\nThere was no error in overruling the motion in arrest of judgment, and the judgment of the Court below is affirmed.\\nAffirmed.\"}" \ No newline at end of file diff --git a/nc/8654107.json b/nc/8654107.json new file mode 100644 index 0000000000000000000000000000000000000000..0f3e1eb7ebde81eef8c4a5e8e72de4e838eaaeb1 --- /dev/null +++ b/nc/8654107.json @@ -0,0 +1 @@ +"{\"id\": \"8654107\", \"name\": \"JOHN G. STONE v. THE TEXAS COMPANY\", \"name_abbreviation\": \"Stone v. Texas Co.\", \"decision_date\": \"1920-12-08\", \"docket_number\": \"\", \"first_page\": \"546\", \"last_page\": \"561\", \"citations\": \"180 N.C. 546\", \"volume\": \"180\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T16:58:35.507679+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN G. STONE v. THE TEXAS COMPANY.\", \"head_matter\": \"JOHN G. STONE v. THE TEXAS COMPANY.\\n(Filed 8 December, 1920.)\\nX. Municipal Corporations \\u2014 Gasoline\\u2014Ordinances\\u2014Cities and Towns\\u2014 Fires.\\nA dealer in a city lor the sale of gasoline, contained ^in tanks and in large quantities, in a warehouse at tbe corner of two streets near tbe tracks of & railroad company, where locomotives are frequently passing, and with a spur track leading up to a warehouse, are amenable to the provisions of an ordinance of the city requiring that such business must be conducted under a license to be issued when the applicant has submitted to the proper city authorities its plans and specifications to be approved by its board; and this requirement is a valid one.\\n2. Negligence \\u2014 Negligence Per Se \\u2014 Municipal Corporations \\u2014 Cities and Towns \\u2014 Ordinances.\\nWhen a seller of gasoline, etc., has not complied with the requirements of a valid ordinance regulating such matters, in failing to get a license for the conduct of such business, and damages are directly caused thereby, without contributory fault, in setting fire to property of an adjacent owner, the yiolation of the ordinance is negligence per se, and whether it was the proximate cause of the injury resulting therefrom is a question of fact for the jury. As to whether the maintenance of such conditions is either a public of a private nuisance, Quaeref\\nS. Same \\u2014 Evidence\\u2014Questions for Jury \\u2014 Courts\\u2014Res Ipsa Loquitur.\\nWhere the defendant has stored in its warehouse tanks containing large quantities of gasoline for sale or distribution among its customers in a city, and maintains, without a watchman, its equipment in violation of a city ordinance, and there is evidence tending to show that a stream of gasoline, enveloped by a highly explosive vapor, flowed from the warehouse wherein the gasoline was stored towards and under a railroad track adjoining its property, where trains were constantly passing, it is sufficient evidence as to the negligence of the defendant to be submitted to the jury, in an action for the destruction by Are of a house of an adjacent owner of lands, upon the inference, which the jury could have drawn from the testimony, that the damage to plaintiff\\u2019s property was proximately caused by contact of live sparks thrown out by the passing locomotives with the said stream of gasoline, or the carelessness in the use of matches or lighted cigars or cigarettes by pedestrians and others; and that there was evidence from which the jury could find that the defendant\\u2019s negligence, in allowing the gasoline to escape from its premises, was the proximate cause of the explosion and the injury. The doctrine of res ipsa loquitur is explained and applied.\\n4. Same \\u2014 Nonsuit\\u2014Rebuttal Evidence.\\nWhere the plaintiff\\u2019s evidence tends to show that the defendant maintained, in violation of a city ordinance, a large supply station for the sale and distribution of gasoline in such manner as to be a menace to adjacent lands, and likely to be ignited by locomotives frequently passing on tracks near thereto, or by the careless use of fire by passersby, and that he has been damaged by the fire, and the defendant offers no evidence in rebuttal, the refusal of the defendant to explain, is a relevant and competent circumstance against it; and, upon the whole evidence, the refusal of a motion to nonsuit was proper.\\nAppeal by defendant from McElroy, Jat Mareb Term, 1920, of Guileoed.\\nTbe negligence complained of-was: First, that tbe defendant bad kept on its premises a large and unlawful quantity of gasoline, andl stored tbe same in an unlawful manner, contrary to the ordinance of, tbe city ofja-re&nsboro j second, tbat it kept no watchman upon its premises; third, tbat it violated section 412 of tbe ordinances of Greensboro; fourth, tbat it permitted gasoline in large quantities to flow freely upon tbe streets and sidewalks of tbe city of Greensboro, where it could be \\u2022easily, and was, ignited. That as a result of such negligence, inflammable vapors exploded at about 1 o\\u2019clock a. m. on 3 May, 1919, and tbat such explosion was so great as to wreck and ruin tbe plaintiff\\u2019s dwelling, und many others.\\nSome of the material, parts of the evidence in this case, upon which the verdict of the jury is based, are as follows:\\n1. Over 30,000 gallons of gasoline were stored on defendant\\u2019s premises inside the corporate limits of the city of Greensboro, in a populous community.\\n2. A warehouse used to fill metal drums of 50 or 60 gallon capacity with gasoline.\\n3. Red coloring matter kept in warehouse or basement.\\n4. A large stream of red-colored gasoline flowing from such basement into Lithia Street.\\n5. Trains passing within 30 feet of warehouse, and over gasoline.\\n6. Gasoline fumes will explode from flame or sparks.\\n7. Explosion in warehouse \\u2014 flame at same time in warehouse and street, where gasoline was seen.\\n' 8. Two metal drums used for gasoline were found in the ruins \\u2014 head blown out of one of them.\\n*\\u00ab9. No watchman was kept on defendant\\u2019s premises.\\n10. Violation of city ordinance of Greensboro, in storing and keeping gasoline \\u2014 conveyed into house by pressure, etc.\\n11. Gasoline at ordinary temperature gives off an inflammable and explosive vaporT'SEd it occurred in this instance, causing the explosion.\\nThe case was tried and submitted to the jury upon the theory of negligence, and the burden of proving actionable negligence was put upon the plaintiff. It developed on the trial that the defendant established, operated, and maintained upon its premises certain unlawful structures, wherein gasoline and kerosene in large quantities were stored, and was liable lo the plaintiff for the injury resulting therefrom. On 3 May, 1919, the defendant\\u2019s plant was located inside the corporate limits of the city of Greensboro, at the intersection of Lee and Lithia streets. It was bounded on the south by Lee Street, on the west'by Lithia Street, and on the north by the double tracks and sidetracks of the North Carolina and Southern Railroads, and on the east by dwellings, built on comparatively small lots, the plaintiff\\u2019s lot being the next lot east of the defendant\\u2019s premises and fifty (50) feet from the east line thereof. The plant was located in a populous section of the city and about two hundred (200) feet from the State Normal and Industrial College, a large educational institution inhabited by many people. Lithia Street slopes to the north and passes under the tracks of the above named railroads, it being the main line of the Southern Railroad, and a large number of trains pass and repass the defendant\\u2019s premises each day.\\nThe defendant used its premises as a storage plant for gasoline and other products, which it sold at wholesale. It had thereon a ware- bouse, under wbicb there was a large basement, pumphouse, shed, and three large tanks, a vertical tank with a capacity of 60,000 gallons used for the purpose of storing gasoline, and two horizontal tanks, each with a capacity of 15,000 gallons, one of which was used for the storage of gasoline, and the other for kerosene. The warehouse was on the northwest corner of the lot, and its north platform was even with the railroad siding. This warehouse was used for the storage of barreled goods and metal drums were filled in the warehouse for shipment, the metal drums holding from 50 to 60 gallons of gasoline. The two horizontal tanks were just south of the warehouse and were elevated some four or five feet above the ground. The vertical tank was east of the warehouse and stood some distance above the ground. The gasoline was conveyed to a vent in the warehouse from the storage tanks above mentioned by pipe-lines, and was forced into the warehouse by pressure. Gasoline could also be taken from the horizontal tanks by truck, there being a vent, in the front of such horizontal tanks. There was a drain from the basement of the warehouse that emptied on Lithia Street at a point about 15 feet from the railroad embankment.\\nAt the time above mentioned, there was an explosion in the warehouse of the defendant company. The plaintiff was standing in his kitchen at the time, and on looking around saw the main storage-house explode and burst into flames. He saw pieces of scantling and paper roofing falling in every direction. Some of the weatherboarding of the warehouse fell in his garden, pieces of it being ten and twelve feet long. The explosion wrecked the plaintiff\\u2019s dwelling by shattering the window glasses, knocking the plastering from the walls and twisting and bending the timbers of his house as described in the record. He also observed that there were flames on Lithia Street in the gutter, or side ditch, and by the curbstone. After the fire was over, he saw two metal drums in the ruins of the same kind as those in which they kept gasoline. These were in the cellar to what had been the warehouse. One drum had the head blown out. On the- same day, after the fire had subsided, he saw the defendant fill one of its truck-cars with gasoline. The truck-car held about one hundred (100) gallons of gasoline, and was filled from one of the horizontal tanks. There were about 30,000 to 40,000 gallons of gasoline in the vertical tank. Just prior to the explosion six witnesses saw a large quantity of gasoline flowing from a little drain pipe leading from the northwest corner of the defendant\\u2019s warehouse, at a point about ten or fifteen feet from the railroad embankment. This stream of gasoline was 24 to 30 inches wide in some places, and averaged a width of 12 inches and a depth of one inch. It had run down in the gutter on Lithia Street, a distance of about 15 or 80 feet, and was breaking its way along. It had a red color. After the fire was over, Mr. Scott, the deputy insurance commissioner, found a quantity of red coloring matter in tbe basement of tbe warehouse.\\nGasoline at ordinary temperature gives off inflammable vapors, wbicb contain carbon and hydrogen, and when they combine with oxygen it explodes, if it comes in contact with fire. Gasoline could become ignited. It could ignite before it reached a certain state. It could be done by a spontaneous combustion, but that is rare. Usually it has to be ignited by flame or spark of some kind. (By reference to the record in the Fox case, it will be seen that the Winston train was passing the defendant\\u2019s premises just as the explosion occurred. The engine had passed, and the window-panes were broken in some of the cars. Gasoline will give off inflammable vapors, even when the temperature is below\\\" zero, according to the testimony of W. M. Allen, State Oil Chemist.\\nThe jury, upon the evidence and under the charge of the court, returned a verdict for the plaintiff, and assessed his damages at eight hundred dollars.\\nJudgment upon the verdict, and defendant appealed.\\nWilson & Frazier, W. P. Bynum, and B: Q. Strudwicle for plaintiff.\\nGuy Stevens, Boberson & Dalton, and Broolcs, Sapp. & Kelly for defendant.\", \"word_count\": \"7422\", \"char_count\": \"42617\", \"text\": \"Walker, J.,\\nafter stating the case: This is one of several cases of the same kind, and was tried under the guidance of the able and learned judge who presided, upon the theory of negligence and the breach of the ordinance of Greensboro requiring that such a business as that of the defendant must be conducted under a license, which may be issued when the applicant for it has submitted to the proper city authorities its plans and specifications, and they have been approved by the board. No such thing was done by the defendant before it started in business, nor has it since been done, so far as appears in the case. The police regulations as to the erection and use of buildings and other structures for the purpose of carrying on the business of selling and distributing kerosene, gasoline, and other petroleum products is well within the governmental powers ordinarily possessed by cities and towns, as we have very recently decided. Gulf Refining Co. v. McKernan, 179 N. C., 314, citing State of Missouri ex rel. Gas Co. v. Murphy, 170 U. S., 78; Reinman v. Little Rock, 237 U. S., 171; Hadacheck v. Los Angeles, 239 U. S., 394. So that it is a fact that at the time of the terrible disaster the defendant was engaged in conducting an unlawful business, because not authorized by any license to do business at all, or it was conducting the business in an unlawful manner, endangering the lives and property of the inhabitants of this growing and prosperous city, and which of these two is correct, if both, are not, can make no material difference. Tbe question as to wbetber tbe violation of a statute, or ordinance, especially one intended to safeguard tbe citizens of a town and tbeir property, is negligence per se, or only evidence of negligence, bas been discussed extensively by tbis Court in several cases, but tbe law of tbis State was finally settled in Leathers v. Tobacco Co., 144 N. C., 330, where it was beld tbat it is negligence per se, and as a matter of law, and tbe rule in regard to it, as stated by Judge Thompson in bis treatise on Negligence (vol. 1, sec. 10), was adopted, and is substantially as follows: When tbe legislature of a State, or tbe council of a municipal corporation, having in view tbe promotion of tbe safety of tbe public, or of individual members of tbe public, commands or forbids tbe doing of a particular act, tbe general conception of tbe courts, and tbe only one tbat is reconcilable with reason, is tbat a failure to do tbe act commanded, or doing tbe act prohibited, is negligence as mere matter of law, or otherwise called negligence per se; and tbis, irrespective of all questions of tbe exercise of prudence, diligence, care, or skill. So tbat if it is.tbe proximate cause of hurt or damage to another, and if tbat other is without contributory fault, tbe case is decided in bis favor, and all tbat remains is to assess bis damages. Tbe jury, of course, must find tbe facts. Tbe author expresses regret tbat \\\"two or three authoritative courts\\\" have beld tbat tbe violation of a statute is only \\\"evidence of negligence.\\\" He then proceeds to criticise tbe doctrine in vigorous terms. At sec. 11 be says: \\\"If a specific duty is imposed upon any person by law or by legal authority, an action may be sustained against him by any person who is specially injured by bis failure to perform tbat duty.\\\" Shearman and Red. Neg., 54. The author says tbat tbe action is in tort for negligence, as will appear from tbe language, and states tbat tbe violation of an imposed statutory duty is a sort of negligence per se. Thus, where a railroad operates its trains at a higher rate of speed than tbe law allows, tbe question wbetber it is guilty of negligence is not debatable. Tbis preliminary matter tbe law conclusively determines against tbe company, and tbe sole question to be settled in cases of tbis kind is wbetber tbat delinquency is tbe proximate cause of tbe damage of which complaint is made. If it is, tbe negligence becomes actionable. 1 Street Foundation Legal Liability, 172. A number of illustrative cases are mentioned. Tbe several views are stated in 21 A. and E. Enc., 478, and tbe cases supporting them are cited. Tbis Court, after approving tbe above statement of tbe law, reviewed tbe authorities upon this question in Leathers v. Tobacco Co., supra, where it is said: \\\"We have care fully examined a number of cases, and find tbat a majority of tbe courts have adopted tbe opinion of tbe text-writers. It is so beld in Perry v. Tozer, 20 Minn., 431; Car Co. v. Armentrual, 214 Ill., 509; Billings v. Breinig, 45 Mich., 65.\\\" In R. R. v. Stebbing, 62 Md., 505, Alvey, C. J., speaking of a speed ordinance, says: \\\"The ordinance is general, and is for the protection of the public generally; but the neglect or disregard of the general duty imposed for the protection of every one can never become the foundation of a mere personal right of action until the individual complaining is shown to have been placed in position that gave him particular occasion and right to insist upon the performance of the duty to him personally. The duty being due to the public, composed of individual persons, each person specially injured by the breach of duty thus imposed becomes entitled to compensation for such injury.\\\" In R. R. v. Voelker, 129 Ill., 540, it is said (p. 555) : \\\"A statute commanding an act to be done creates an absolute duty to perform such an act, and the duty of performance does not depend upon, and is not controlled by, surrounding circumstances. Nonperformance of such statutory duty, resulting in injury to another, may therefore be pronounced to be negligence as a conclusion of law,\\\" citing R. R. v. Horton, 132 Ind., 189; R. R. v. Carr, 73 Ga., 557; R. R. v. Young, 81 Ga., 397; Messenger v. Pate, 42 Iowa, 443; Muller v. Street R. R., 86 Wis., 340; Hayes v. R. R., 70 Tex., 602; Tucker v. R. R., 42 La. Ann., 114; Queen v. Coal Co., 95 Tenn., 459; 49 Am. St., 935. In Salisbury v. Horchenroder, 161 Mass., 458, the evidence showed that defendant hung a sign over the sidewalk in front of his store, in violation of an ordinance of the town. It was blown down by a gale of wind, injuring plaintiff's property. Chapman, C. J., said: \\\"If the defendant's sign had been rightfully placed where it was, the question would have been presented whether he had used reasonable care in securing it. If he had done so, the injury would have been caused, without his fault, by the extraordinary and unusual gale of wind, etc. . . . But the defendant's sign was suspended over the street in violation of a public ordinance of the city of Boston, by which he was subject to a penalty. He placed and kept it there illegally, and this illegal act of his has contributed to the plaintiff's injury.\\\" The defendant was held liable because in placing the sign over the sidewalk he violated the city ordinance, and this illegal act was held to be the proximate cause of the injury to plaintiff. It was stated to be a general rule \\\"that the doing of a prohibited act, or the failure to perform a duty enjoined by statute or ordinance (which causes injury to another), constitutes negligence, for which the party guilty of such act or omission is liable, unless excused by the contributory negligence of the one to whose person or property it is done,\\\" citing many authorities.\\nTo the same effect is 2 Labatt Master and Servant, 2177. He says: \\\"By many courts it is held that a violation of such statute constitutes negligence per se.\\\" After stating the other theories, he adds: \\\"That the former of these theories is the correct one can scarcely be doubted. A doctrine, the essential effects of which is that the quality of an act which the Legislature has prescribed or forbidden, becomes an open question, upon which juries are entitled to express an opinion, would seem to be highly anomalous. The command or prohibition of a permanent body, which represents an entire community, ought, in any reasonable view, to be regarded as a final judgment upon the subject-matter, which renders it both unnecessary and improper that this question should be submitted to a jury.\\\" The latest expression of judicial thought in England corresponds with the authorities cited. In Groves v. Winborne, 2 L. R., 1898, Q. B. Div., 402, Rigby, L. J., at p. 412, says: \\\"When an absolute duty is imposed upon a person by statute, it is not necessary, in order to make him liable for breach of that duty, to show negligence. Whether there be negligence or not, he is responsible quacunque via data for the nonperformance of the duty,\\\" if it causes damage. In New York the Court held, in the Marino case, 173 N. Y., 530, upon an appeal from a judgment of nonsuit in an action by a child employed within the prohibited age for an injury sustained, that the violation of the statute was at least evidence of negligence. In Lee v. Mfg. Co., 93 N. Y. Supp., 560, Gaynor, J., in a very strong and satisfactory opinion, held that in such an action, the employment in violation of the statute was negligence per se. He reviews the Marino case, and shows that to say that such violation is \\\"some evidence\\\" is illogical. This case was appealed to the general term, and reversed upon the authority of the Marino case, 101 N. Y. Supp., 78. While it may not be strictly accurate to speak of the breach of duty arising out of a violation of a statutory duty as negligence, as we have seen, it is generally so treated, as entitling the injured person to an action on the case for negligence. For practical purposes, it may properly be a convenient mode of administering the right, because it involves the question of proximate cause and contributory negligence. Our precedent, Leathers v. Tobacco Co., supra, authorized the court to submit the question in this case to the jury, so far as it concerned a breach of the ordinance; as a question of law, which is practically the same thing, as negligence per se, and the charge that, if they found, by a preponderance of the evidence, the other facts to be as the witness had testified (there being no testimony introduced by defendant), and they found that the acts of the defendant proximately caused the injury, they should answer the first issue \\\"Yes,\\\" and proceed to assess the damages. He did'this substantially, and in such a way that the defendant, at least, can have no possible'objection to it. The essential facts in this respect were really not disputed. Speaking for myself, let me state that when there is a violation of a statute or ordinance, especially one of this kind, which so deeply concerns public and individual safety, both, as to person and property, it is an illegal act, which, of itself, is a tort, without reference to the question of negligence, and all that is necessary to make it an actionable wrong is to show damages, or in other words, that it proximately caused the injury, under the general rule that \\\"wrong and damage\\\" constitute a cause of action. There was no pretense in this case that defendant had complied with the ordinance, and it is almost amazing that for so long a time it should have engaged in such a dangerous and illegal business, without check or restraint of any kind, when the menace to life and property was so great. This Court, in its rulings and charge, was well within the law, and far more lenient and liberal with the defendant than its case deserved. Some authorities hold that facts such as those presented in this case establish a private nuisance, if not also a public nuisance. We will not pass upon or discuss this feature, but merely refer to a few authorities where it is considered. 11 R. C. L., p. 666; Whittemore v. Laundry Co., 52 L. R. A., (N. S.), 930, and especially the note. We said in Ridge v. High Point, 176 N. C., 421: \\\"It was a public nuisance (piling lumber in the street), as defined and understood by the law, but the court left the question of negligence to the jury, for them to find the facts, with proper instructions as to the law of negligence. It would, upon the facts, which cannot be seriously denied, appear that there was negligence on the part of both the defendants, which was the proximate cause of the death without considering the contributory negligence of the intestate, if there was any. There was a clear violation of the ordinance when the lumber was piled in Perry Street, and this was negligence per se, or, in other words, it was negligence as a matter of law, to be declared by the court, but it was not actionable negligence, as it may have resulted in no actual harm. In order to make it actionable, it was necessary to show that it was the proximate cause of the death, as the two must unite so as to become an actionable wrong.\\\" In our case, the defendant's acts were a flagrant, and even startling, breach of private and public duty. The situation was so threatening that the volatile gas set free by contact of the carbon and hydrogen with the oxygen \\u00f3f the air, needed only the slightest touch of fire to produce an explosion, which would almost have wrecked the city if it had extended to the quantity in the large tanks. As it was, the damage wrought was very extensive. The law will not excuse such carelessness, and even rashness, in dealing with this high explosive, which wrought havoc even in this instance. Many authorities could be cited in support of this proposition, but it is needless to review or examine them here and now. The defendant had no watchman on its premises to guard against an explosion, or to stop the leak, which he could have done easily. It is said in Shearman & Redfield on Negligence (6 ed.), sec. 689: \\\"The owner or controller of dangerous goods, such as gunpowder and other explosives, wbo keeps them on bis premises, does so at bis own peril, and be is bound to exercise great care to prevent an injury wbicb a prudent man would reasonably foresee might result therefrom. It is not always, however, a question of due care. Whether the keeping of gunpowder or other explosives upon private premises constitutes a nuisance depends upon the locality, the quantity, and the surrounding circumstances, without regard to the question whether it was kept carelessly or negligently. It is clear, however, that a bailee of goods, of the explosive nature of which he had no knowledge, is bound to use .only ordinary care in reference to them; having used that care, he is not responsible for the consequences of an explosion.\\\" Sec. 689, supra, and notes. We also think there is evidence that if the gasoline had been handled with care, an explosion would have been avoided as it actually had been for some time, and therefore there arose a fair presumption sufficient to carry the case to the jury, that there was negligence. 1 Shearman & Redfield on Negligence (6 ed.), sec. 60; Ill. Central R. R. v. Phillips, 55 Ill., 194; Bahr v. Lombard, 53 N. J. Law, 233 (explosion of oil pipe); Grimsley v. Hankins, 46 Fed., 400; 3 Shearman & Redfield on Negligence (6 ed.), sec. 689, and notes. But caution should be taken to apply this rule according to Page v. Mfg. Co., decided at this term, as to the burden of proof. See, also, 1 Shearman & Redfield on Negligence, sec. 58. It was held in Rudder v. Koopman & Cerdes, 116 Ala., 332: \\\"The storing of large quantities of gunpowder and dynamite in a wooden building, located within the corporate limits of a city or town, in a thickly settled or populated portion of said city or town, and in prox'imity to many buildings, constitutes a nuisance, rendering the owner thereof responsible for injuries resulting from its explosion, and in an action to recover damages to plaintiff's building, resulting from the explosion of gunpowder and dynamite, a complaint, which avers that the defendant stored large quantities of dynamite and gunpowder in a wooden building in a thickly settled portion of an incorporated town, in proximity to plaintiff's building, and that the defendant's building having caught fire, the dynamite and powder stored therein exploded with such force and violence as to cast fire brands upon plaintiff's building, whereby it and its contents were set on fire, and consumed, sufficiently states a cause of action, without averring specific acts of negligence on the part of the defendants in the manner or mode of keeping the dynamite and gunpowder.\\\" Lewis v. Hughes, 12 Col., 208 (gasoline case). Watson v. Kentucky & Indiana Bridge and Railroad Company, 127 S. W. Reporter, p. 146, is a case much like ours, and there the Court held that \\\"evidence in an action for damages caused by an explosion of gas generated from gasoline running from the broken valve of the derailed tank car, held to present a question for the jury as to the proximate cause of plaintiffs injury.\\\" Tbe question of proximate cause is for tbe jury. Tbe Court in tbat case further said: \\\"If tbe presence on Madison Street in tbe city of Louisville of tbe great volume of loose gas tbat arose from tbe escaping gasoline was caused by tbe negligence of tbe appellee, bridge and railroad company, it seems to us tbat tbe probable consequence of its coming in contact witb fire and causing an explosion was too plain a proposition to admit doubt. Indeed, it was most probable tbat some one would strike a match to light a cigar or for other purposes in tbe midst of tbe gas. In our opinion, therefore, tbe act of one lighting .or throwing a match under such ' circumstances cannot be said to be tbe only efficient cause of tbe explosion. It did not of itself produce tbe explosion, nor could it have done so without tbe assistance and contribution resulting from tbe primary negligence, if there was such negligence, on tbe part of tbe appellee, bridge and railroad company, in furnishing tbe presence of tbe gas in tbe street.\\\" If a third party's act cooperated witb defendant's in producing tbe damage, defendant is liable. Grand Trunk R. Co. v. Cumings, 106 U. S., 700; Harton v. Tel. Co., 141 N. C., 455. Tbe jury could well have found from tbe evidence in this case tbat tbe red gasoline ran from tbe defendant's warehouse by reason of its negligence, and also tbat it was exposed to contact witb fire because of tbe sparks flying from tbe engines of tbe railroad companies, which were constantly passing up and down tbe double tracks, and on its sidings, or to tbe thoughtlessness or carelessness of passersby 'in smoking cigars, or to cigarette smokers. It does not clearly appear at what point tbe fire first started. To have such a place as defendant's plant unguarded in such a situation, where tbe gasoline ran under it, and in touch witb two streets, into which gasoline could escape from its premises, was at least little short of criminal negligence. It is said in Ruling Case Law, one of-the most excellent and reliable of tbe standard treatises, vol. 11, p. 660 : \\\"Owing to its more dangerous character, tbe rule is different, however, as to tbe storage of gasoline. Though tbe storage of gasoline on premises adjacent to or adjoining tbe premises of another be not regarded as a private nuisance per se, it may, nevertheless, become such, considering tbe locality, tbe quantity, and tbe surrounding circumstances, and would not necessarily depend upon tbe degree of care used in its storage, or upon whether every precaution tbat human ingenuity has conceived has been made use of in tbe construction of tbe tanks, considering tbe dangerous character of tbe substance, and its power as an explosive, of which the courts can well take judicial notice, and also considering tbe fact tbat accidents in tbe operation of tbe most perfect mechanism will occur. - It cannot be said that to have a great quantity of such an agency stored within a few feet of one's dwelling-house is not sufficient to be an unreasonable interference witb the comfortable enjoyment of that borne.\\\" The cases cited by defendant in its brief are not in point, as no statute or ordinance was violated, and there was no legal evidence of any negligence, as held by those courts, while here there are both elements. The facts fairly to be deduced from the evidence of plaintiffs show that there was palpable negligence.\\nIn some eases the courts have found circumstances which were considered such as to make the storage of gas or oil a nuisance. Thus, it was held in O'Hare v. Nelson, 71 N. J. Eq., 161, that in a thickly built-up portion of a large city, where there are many frame buildings, the storage of large quantities of gasoline in a frame building, where it is liable to be ignited, constitutes a nuisance. So, a tank for the storage of gas, maintained in railroad yards in the heart of a city, and surrounded by buildings, constitutes a nuisance. Levin v. New York C. & H. R. R. Co., 133 N. Y. Supp., 467. To deposit and keep excessive quantities of a highly inflammable and explosive substance, such as naptha, in an important section of London was held to be an indictable nuisance. Reg. v. Lister, 26 L. J. Mag. Cas. N. S., 196. Where oil stored in a tank is so located with respect to a dwelling-house as to place it in danger, and so seriously interfere with its enjoyment, it was held to be a nuisance. McGregor v. Camden, 47 W. Va., 193. In Heeg v. Licht, 80 N. Y., 579, 582, the Court, speaking of private' nuisances, said: \\\"Private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. 3 Bl. Com., 216. Any unwarrantable, unreasonable, or unlawful use by a person of his own property, real or personal, to the injury of another, comes within the definition stated, and renders the owner or possessor liable for all damages arising from such use. Wood Nuisances, see. 1, and authorities cited. The causes which are regarded as private nuisances are numerous, and.the books are full of decisions holding the parties answerable for the injuries which result from their being maintained. The rule is of universal application that while a man may prosecute such business as he chooses on his own premises, he has no right to erect or maintain a nuisance to the injury of an adjoining proprietor, or his neighbors, even in the pursuit of a lawful trade,\\\" citing Aldred's case, 9 Coke, 58; Crady v. Weeks, 3 Barb., 159; Dubois v. Budlong, 15 Abb. Pr., 445; Weir's Appeal, 74 Pa., 230. A very strong view of the question of nuisance is stated by Judge Miller in Heeg v. Licht, supra, as follows: \\\"The defendant had erected a building and stored materials therein, which from their character were liable to, and actually did, explode, causing injury to the plaintiff. The fact that the explosion took place tends to establish that the magazine was dangerous and liable to cause damage to the property of persons residing in the vicinity. The locality of works of this description must depend upon tbe neighborhood in which they are situated. In a city, with buildings immediately contiguous and persons constantly passing, there could be no question that such an erection would be unlawful and unauthorized. An explosion under such circumstances, independent of any municipal regulations, would render the owner amenable for all damages arising therefrom. That the defendant's establishment was outside of the territorial limits of a city does not relieve the owner from responsibility or alter the case, if the dangerous erection was in close contiguity with dwelling-houses or buildings, which might be injured or destroyed in ease of an explosion. The fact that the magazine was liable to such a contingency, which could not be guarded against or averted by the greatest degree of care and vigilance, evinces its dangerous character, and might in some localities render it a private nuisance. In such a case the rule which exonerates a party engaged in a lawful business, when free from negligence, has no application.\\\"\\nWe may well conclude this opinion by referring to a case which seems to resemble this one more closely than any other, the only difference being that the case at bar contains much stronger evidence to establish a nuisance than in the cited case. It is there said: \\\"We may grant that the storage of gasoline on premises adjacent to, or adjoining, the premises of another is not a private nuisance per s\\u00e9. It might, however, become such, considering the locality, the quantity, and the surrounding, circumstances, and would not necessarily dejtend upon the degree of care used in its storage. Heeg v. Licht, supra; 29 Cyc., 1177. We may also concede that in the instant case every precaution that human ingenuity has conceived has been made use of in the construction of the tanks, as testified to by defendant's experts. Considering, however, the dangerous character of the substance, and its power as an explosive, of which, in this age of its wonderful development as a power to propel automobiles, traction engines, and airships, we can well take judicial notice, and also considering human fallibility, that accidents in the operation of the most perfect mechanism will occur, and all that it needs to change what is, when properly protected, a harmless agency, to a most dangerous explosive, is a careless person \\u2014 can it be said that to have 20,000 gallons of such an agency stored within but a few feet of one's dwelling-house is not sufficient to be an unreasonable interference with the comfortable enjoyment of that home? This is a purely residence district of the city, and was such before the defendant began operating its dry-cleaning business, and it must be apparent to any fair-minded person that the location of these tanks in immediate proximity to complainant Whittemore's house would necessarily' damage his property.\\\" Whittemore v. Baxter L. Co., 148 N. W. (Mich.), 437.\\nWe need not discuss tbe maxim res ipsa loquitur any further than we already have, for it is not necessary to do so.\\nAs to tbe probability of tbe fire reaching tbe liquid fluid from defendant's premises, and touching off tbe volatile gas produced by its contact with tbe air, from which it received tbe oxygen, there can be no dispute that tbe evidence permitted tbe inference by tbe jury that a spark from an engine of tbe railroad company caused tbe explosion, or live ashes dropped from tbe cigarette or cigar of a passerby. It would not have exploded but from some such or similar cause. That it was a permissible inference is fully decided in tbe cases, as to sparks falling from railroad 'engines and igniting tbe combustible material on tbe right of way or contiguous lands, and thereby destroying timber and other property, such as Simmons v. Lumber Co., 174 N. C., 225; Moore v. Lumber Co., 175 N. C., 205; Deppe v. R. R., 152 N. C., 79; McRainey v. R. R., 168 N. C., 572; Fitzgerald v. R. R., 141 N. C., 531; Hardy v. Lumber Co., 160 N. C., 116. We said in tbe Simmons case, supra: \\\"Tbe cause of tbe fire is not required to be shown by direct and positive proof, or by tbe testimony of an eye witness. It may, as we have seen, be inferred from circumstances, and there are many facts like this one, which cannot be established in any other way. It is true that there must be a causal connection between tbe fire.and its supposed origin, but this may be shown by reasonable inferences from tbe admitted, known (or proven) facts, or otherwise presumptive evidence would be excluded. We have held proof, as to tbe emission of sparks from locomotive, or stationary engines, to be sufficient for tbe purpose of showing that a fire was started by them, where no one saw tbe sparks dropping on tbe place which was burned, for tbe reason that surroiinding circumstances tended to prove that they were tbe cause of tbe fire, by reasonable presumption or inference. In Deppe's ccise, supra, where it was contended that no witness testified that be actually saw sparks emitted from tbe engine and fall on tbe lumber kiln, tbe Court said, that in considering this contention it must be remembered that tbe fire occurred during tbe daytime, and tbe brilliance of a summer's sun rendered any sparks thus emitted invisible to tbe human eye. That no one saw the' sparks ignite tbe burned property was tbe fact in McNeill v. R. R., 167 N. C., 390, and Williams v. R. R., 140 N. C., 623, in which latter case tbe Court comments upon a similar contention. \\u00a3No one testified that be saw tbe sparks fall from tbe engine upon tbe right of way,' and said in respect thereto that it is rarely that this can be shown by eyewitnesses.\\\"\\nTbe nonsuit was properly refused by tbe presiding judge. Tbe evidence was ample for tbe consideration of tbe jury, and we may add, was almost as strong as it could possibly be. Tbe defendant must have bad full knowledge of tbe facts, or, at least, should have had it, and nevertheless it introduced no testimony, and left the jury at liberty to infer that it either had no explanation or excuse to offer, or that the explosion could have been prevented by the exercise of ordinary care, and there was no alternative but to return a verdict against it. They were left to consider its silence as a damaging circumstance against it, for the facts in evidence required some sort of explanation from it, and it was not forthcoming. Its refusal to explain was a relevant and competent circumstance against it. Goodman v. Sapp, 102 N. C., 477. The result should have been expected. A party may rely upon the weakness of his adversary's proof, if he deems it safe and expedient to do so, but he takes the risk, and sometimes a great one, in taking that course. The plaintiff's testimony in this case was not only strong, but cogent and convincing. The circumstances here tended to show that the explosive gas, which had reached the flashing point, and was enveloping the stream of fluid, in its course towards the railroad, and spreading in every direction, was set off by a spark from one of the passing engines. The jury could well have drawn this inference. It was fortunate that the havoc caused by the explosion was not more extensive, considering that many residences, and a large normal college, were so close to the defendant's plant.\\nHere was a large plant, intended to supply the inhabitants of a flourishing city with these widely used products of petroleum, which were of a highly explosive character, when allowed to escape from their containers and become exposed to another chemical element, the oxygen of the air. That the gasoline did thus escape is beyond dispute, and yet by the exercise of the slightest care on the part of this apparently affluent company, it could have been prevented. Defendant, though, seemed to be more intent upon profits than uxoon safety, or upon making a small expenditure for a watchman, than upon safeguarding the people of a large city against a terrible catastrophe, involving immense loss of life and property, hence the fatality in this case, which could easily have been avoided by proper care.\\nDefendant was just as culpable as the gas company which permitted a live wire to dangle from one of its poles, as in Haynes v. Gas Co., 114 N. C., 203, of the railroad company which permitted live sparks to fly from its defective smokestack, or live coals to fall from its defective firebox, as in Aycock v. R. R., 89 N. C., 321, and in many of a like kind. It plainly violated the ordinance 412 when it failed to get a license, and also when it constructed its plant contrary to their provisions.\\nThe charge of Judge McElroy was fair, and plainly so to the defendant, and devoid of any error; it was also exceptionally lucid and strong in its statement of the law applicable to the case.\\nTbe exceptions of tbe defendant are found to be without any real merit, and we therefore affirm the judgment.\\nNo error.\"}" \ No newline at end of file diff --git a/nc/8655195.json b/nc/8655195.json new file mode 100644 index 0000000000000000000000000000000000000000..782dc65e54718b451e9ab4f02aba2c168fcd1646 --- /dev/null +++ b/nc/8655195.json @@ -0,0 +1 @@ +"{\"id\": \"8655195\", \"name\": \"W. H. PROCTOR et al. v. BOARD OF COMMISSIONERS OF NASH COUNTY et al.\", \"name_abbreviation\": \"Proctor v. Board of Commissioners\", \"decision_date\": \"1921-09-21\", \"docket_number\": \"\", \"first_page\": \"56\", \"last_page\": \"61\", \"citations\": \"182 N.C. 56\", \"volume\": \"182\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:14:38.082925+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"W. H. PROCTOR et al. v. BOARD OF COMMISSIONERS OF NASH COUNTY et al.\", \"head_matter\": \"W. H. PROCTOR et al. v. BOARD OF COMMISSIONERS OF NASH COUNTY et al.\\n(Filed 21 September, 1921.)\\nSchool Districts \\u2014 Bonds\\u2014Statutes\\u2014Sinking Fund \\u2014 Taxation.\\nWhere a statute authorizes a school district to issue bonds for school purposes, and requires that a sinking fund at a certain rate of taxation be provided for the retirement of the bonds at maturity, and the taxable property in the district is not sufficient to pay the interest and provide an adequate sinking fund, the retirement of these bonds is as vital to their validity as the authorization to issue them, and their issuance will be permanently enjoined at the suit of a taxpayer within the district. In this case the bonds had not been issued and the rights of purchasers had not intervened.\\nAppeal by plaintiffs from Connor, J., at chambers, 1 July, 1921, from Nash.\\nCivil action to determine tbe validity of certain proposed bonds. Tbe facts are set out in tbe judgment of tbe Superior Court, wbicb is as follows:\\n\\u201cThis is a civil action wherein tbe plaintiffs are seeking a permanent injunction against tbe defendants against tbe issuance and sale of certain school improvement bonds of Oak Level School District, Nash County, North Carolina. A temporary restraining order was issued against tbe defendants by Bond, J., August 20, 1919, and notice issued to tbe defendants to appear before Devin, J., at Nashville, 28 August, 1919, and show cause why said injunction should not be granted. Tbe bearing thereof was continued from time to time without final disposition, and tbe same now comes on to be beard on 1 July, 1921, before bis Honor, George W. Connor, resident judge of tbe Second Judicial District, in chambers at \\\"Wilson, N. 0., upon motion of tbe defendants to dissolve tbe temporary restraining order herein issued. After bearing tbe complaint and answer and tbe affidavits in tbe cause and tbe argument of counsel, it appears to tbe court, and tbe court finds as a fact:\\n\\u201c1. Tbat on or about Y April, 1919, tbe county board of education of Nasb County filed with, the board -of county commissioners of Nash \\u25a0County a petition for an election within Oak Level School District in Nash County upon the question of issuing $20,000 of school improvement bonds for the purpose of building a schoolhouse in said district, .as provided by ch. 55 of the Public Laws of 1915- of North Carolina, and the said board of county commissioners thereupon ordered an election to be held in said school district for said purpose on 22 July, 1919.\\n\\u201c2. That said election was held as in said order and notice of election \\u2022directed, 22 July, 1919, and was declared carried; that the registration books were closed 10 July, whereas they should have remained open 'until Saturday night, 12 July; that between 10 July and 12 July, 1919,\\n\\u2022 J. B. Wallace and W. J. Bunn, qualified voters of said district, were .refused registration by the registrar.\\n\\u201c3. That there is no public high school maintained in said district.\\n\\u201c4. That there is a community in said school district consisting of two \\u25a0stores and several'residences known as Westrays; that by chapter 39 of the Private Laws of the Special Session of 1908, the territory embracing \\u25a0said community, known as Westrays, was incorporated under the name \\u25a0of the town of Westrays; that by said act John O. Lindsay was designated as mayor, M. J. Hedrick, J. B. Land and J. S. Proctor as commissioners; that the said John C. Lindsay, J. B. Land and J. S. Proctor lave each long since moved from the territory embraced within said act, and M. J. Hedrick never lived within said territory, and that said town has not for the past ten years elected any officers or employees, levied any taxes, or performed any other duty or exercised any other privilege usually performed or exercised by towns; that said community has had no board of aldermen, nor other body, has held no election or meeting or kept any minutes or records of same and in no way held itself out to the public as a town, and has in no manner functioned or attempted to function as such.\\n\\u201c5. That the total taxable property in said district for the year 1919 was $476,549, dnd the total number of polls was 177, and that the total amount of taxes that could be raised by the levy of the maximum amount permitted by said chapter 55, Public Laws of 1915, as limited by chapter 84, section 3, Public Laws of 1919, is $1,718.13, which amount is insufficient to create a sinking fund for the retirement of said bonds at maturity and pay the interest thereon.\\n\\u201cAnd upon the foregoing findings of fact the court is of the opinion:\\n\\u201c1. That the irregularities, if any, in calling and holding said election and in the registration of voters were cured by the provision of chapter .133, Public Laws of 1921, and that there was not a sufficient number of -voters refused registration to affect the result.of said election.\\n\\u201c2. That the community designated as the town of Westrays, within said territory of Oak Level School District, is an incorporated town within the meaning and purpose of chapter 55 of Public Laws of 1915.\\n\\u201c3. That the amount of taxable property within said district and the maximum amount of tax that can be raised thereon under the statute does not affect the validity of said bonds, but only affects their marketability.\\n\\u201cWhereupon, it is ordered and adjudged by the court that the said temporary restraining order herein issued be and the same is hereby dissolved. It is further ordered that the plaintiffs pay the cost of this proceeding, to be taxed by the clerk of the Superior Court of Nash County. \\u201cGeorge W. CoNNOR,\\n\\u201cResident Judge \\u201d etc. ,\\nFrom the foregoing judgment the plaintiffs excepted and appealed.\\nM. V. Barnhill for plaintiffs.\\nFinch & Vaughn, and Thorne & Thorne for defendants.\", \"word_count\": \"2607\", \"char_count\": \"15052\", \"text\": \"Staoy, I.\\nThis case presents for consideration the old but ever new question of taxation. It comes in the form of a proposed bond issue, and we are asked to pass upon the validity or legality of the same.\\nThe following are the objective and controlling facts:\\n1. By an election held in Oak Level School District, Nash County, N. 0., on or about 1 April, 1919, a bond issue of $20,000 for school improvement purposes was approved by a vote of a majority of the qualified voters resident in said district.\\n2. Chapter 55, Public Laws 1915, provides that, following a favorable election in such district, the county board of commissioners shall issue said bonds, when requested to do so by the county board of education; and further, that said commissioners \\\"shall thereafter levy a sufficient tax (which shall not exceed thirty cents on the one hundred dollars, and ninety cents on the poll) to pay the interest on said bonds and create a sinking fund sufficient to pay the principal and interest on said bonds when they fall due.\\\"\\n3. The total maximum amount of taxes that could be raised from the taxable property in the present district, under the above limitations, is insufficient to create a sinking fund for the retirement of, said bonds at maturity and pay the interest thereon, as required by the law of 1915; or, to state it differently, in order to meet the obligations which these bonds will impose, it would be necessary to levy taxes in excess of the statutory limitations.\\nUpon these, the facts chiefly relevant, the question then arises: Will the law sanction the issuance of these bonds when admittedly, under the tax limitations, they cannot be paid at maturity? We think not.\\nA similar question was presented in the case of Bennett v. Commissioners, 173 N. C., 625, where the defendant commissioners of Rocking-ham County were sought to be enjoined from issuing bonds in excess of the county's ability to pay under the existing tax limitations. The authority to issue said bonds was denied, the Court saying:\\n\\\"In view of the constitutional provision, and the decisions of the Court construing the same, we are of opinion that the county commissioners of Rockingham County are without power to incur this indebtedness of $200,000, issue the negotiable bonds of the county in evidence of their obligation, and stipulate for a continuing tax to pay the interest and provide a sinking fund which is in excess of the established limitation,\\\" citing Board of Education v. Comrs., 107 N. C., 110; French v. Comrs., 74 N. C., 692; Millsaps v. Terrell, 60 Fed., 193.\\nWe do not understand that Art. IX, sec. 3, of our State Constitution is invoked as bearing upon the questions presented by this appeal; or, at least, it does not so appear on the record. But even if such were the case, it has been held with us that where the Legislature has prescribed a method of procedure of this kind, and such procedure is sought to be followed, the statutory provisions on the subject are controlling. Hendersonville v. Jordan, 150 N. C., 35; Comrs. v. Webb, 148 N. C., 120; Robinson v. Goldsboro, 135 N. C., 382. Indeed, in certain instances, the legislative method and the requirements thereof, whether expressed in permissive or mandatory terms, are declared \\\"to be exclusive and binding upon those who are chargeable with the execution of such powers. Ellison v. Williamston, 152 N. C., 147; Wadsworth v. Concord, 133 N. C., 587.\\nThe authorities, of course, may provide for a six months school, as required by the constitutional provision above mentioned, but if they undertake to do so in the manner prescribed by chapter 55, Public Laws 1915, they must comply with the terms of the statute. And it would seem that the statutory method is exclusive where district bonds are sought to be issued for such purpose. However, this latter question is not before us for decision, as the defendants are proceeding under the statute. Trustees v. Pruden, 179 N. C., 619.\\nIn Comrs. v. State Treasurer, 174 N. C., 141, it was said that \\\"an obligation of this kind imports a liability to taxation, and in case of a subordinate municipal corporation it means that payment can be coerced (if the bonds be valid), and that all the taxable values therein may be made available on the claim.\\\" In support of this position, the following was quoted with approval from People v. Township Salem, 20 Mich., 452: \\\"The exercise by a municipal corporation of the power to pledge its credit is an incipient step in the exercise of the power of taxation, and unless the object to be promoted be such as may be provided for by taxation, the power to make the pledge does not exist, and the Legislature cannot confer it.\\\" And we may add that, where a bond issue is proposed in excess of the taxing power to care for the payment of said bonds, though for a legitimate purpose, the right to issue the same is not to be found within the pale of the law. The authority to issue bonds, or pledge the faith and loan the credit of a subordinate p\\u00bbolitical subdivision of the State is limited by its ability, under the law, to provide for the ultimate payment of said obligations. This is the point up to which it may be permitted to go, but beyond which the law does not sanction. To hold otherwise would be to assert a legal proposition which, to say the least, is doubtful in morals.\\nThere has been no sale of the present bonds, and the appeal presents no question with respect to the rights of innocent third parties, or purchasers for value without notice. The legality of the issue is raised upon objection by plaintiffs who are residents and property owners in said district.\\nThe case of Comrs. v. MacDonald, 148 N. C., 125, is not at variance with the principle here declared, for the chief question there debated \\u2022and decided was whether a county which had been authorized, with the approval of a popular vote, to issue certain bonds, could levy a tax in excess of the constitutional limitation to provide for their payment, with interest, in the absence of express legislative authority. But it does not appear that such a tax was necessary to meet the obligations incurred by said bonds. The fact was not there established as here admitted. This is made clear from the judgment of the Superior Court as set out in the record of that case, from which the following is taken: \\\"And (the court) being further of the opinion that the said board of commissioners have authority to levy tax sufficient to pay the interest on said bonds, and to imovide a sinking fund for the payment of the principal thereof at maturity, and that said hoard can be compelled by mandamus to levy such tax upon its refusal so to do,\\\" etc. The bonds were declared valid, and it does not appear that a levy in excess of the constitutional limitation was necessary to meet payment \\u2014 the court saying that a tax up to this limit might be compelled by mandamus, if need be. This restricted tax seems to have been sufficient. Hence, the crucial point now presented was not decided in McDonald's case, nor was it before the Court in Trustees v. Pruden, supra. These eases are thus distinguishable.\\nWe are not impressed with the argument or contention that the in ability to provide for tbe payment of said bonds 'affects only their marketability and not their validity. The authority to issue the proposed bonds is derived from the statute, and its limitations are equally as effective and curbing as its enabling provisions are life-giving. Therefore, where the territory embraced in a given district is too small, under the limitations of the statute, to provide for the payment of the bonds in the amount proposed, and this fact is affirmatively established prior-to a sale of the bonds, we must deny the authority to embark upon such an enterprise. In the instant case the amount of bonds proposed is too-large, considering the taxable values within the territorial limits of the-school district. The undertaking, as it appears on the record, is top-heavy and wanting in self-sufficiency, for which reason the law must, withhold its approval.\\nAgain, as said in Lang v. Development Co., 169 N. C., 662: \\\"It is-no answer to this position that, in the particular case before us, no-harm is likely to occur or that the power is being exercised in a considerate or benevolent manner, for where a statute is being squared to requirement of constitutional provision (or where the contemplated, action of a governing body is being squared to statutory regulations) it is what the law authorizes and not what is being presently done under-it that furnishes the proper test of its validity.\\\"\\nThe statute provides that an election of this kind may be held in any; school district \\\"which embraces an incorporated town or city, or in-which there is maintained a public high school.\\\" It is admitted that the present district contains no high school, and it is very doubtful as-to whether \\\"Westrays\\\" is such an incorporated town within the meaning and purpose of chapter 55, Public Laws 1915. But for reasons, otherwise sufficient, we do not now pass upon this point, as it is unnecessary to do so.\\nUpon the facts as found the temporary restraining order should have-been made permanent, and this will be certified to the Superior Court..\\nError.\"}" \ No newline at end of file diff --git a/nc/8656032.json b/nc/8656032.json new file mode 100644 index 0000000000000000000000000000000000000000..c822fb8c36015a705a87f45c113d14f0756e67fb --- /dev/null +++ b/nc/8656032.json @@ -0,0 +1 @@ +"{\"id\": \"8656032\", \"name\": \"STATE v. IRA J. SCOTT\", \"name_abbreviation\": \"State v. Scott\", \"decision_date\": \"1895-02\", \"docket_number\": \"\", \"first_page\": \"1012\", \"last_page\": \"1016\", \"citations\": \"116 N.C. 1012\", \"volume\": \"116\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T17:32:45.619227+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. IRA J. SCOTT.\", \"head_matter\": \"STATE v. IRA J. SCOTT.\\nIndictment for Selling Liquor on Sunday \\u2014 Intoxicating ' liquors \\u2014 Question for Jury.\\n1. Where a liquor, by common knowledge or observation, is intoxicating, the Court may so declare, but if it is doubtful whether it is intoxicating or not, then it is a question of fact for the jury; hence, \\u2022\\n3. Where, in the trial of an indictment for selling spirituous liquors on Sunday without prescription of a physician and not for medical purposes (Section 1117 of The Code) the evidence was that the prosecuting witness drank four bottles of brandy peaches sold by the defendant and became drunk thereby, it was for the jury to determine whether the liquor was spirituous and intoxicating.\\nIndictment for unlawfully selling spirituous liquors to to one Archie Mathis, on Sunday, without prescription, etc., tried before His Honor Judge Ilohe, and a jury, at February Term, 1895, of DupliN Superior Court.\\n. Archie Mathis, for the State, testified that the defendant was a dealer in general merchandise, at Rose Hill in said county, and on the third Sunday in May last, in passing defendant\\u2019s store, he found several of his friends there eating brandy peaches and cherries and drinking the liquor in the jars with them. They were in stock and sold by defendant; that witness joined the party, and himself bought as much as four bottles at 25 cents each; he drank as much as three of the bottles and became so drunk he was unconscious; that the liquor in which the peaches and cherries were put up was brandy, and would make you drunk; that witness had no physician\\u2019s prescription, and was not sick, but just bought and drank and ate the brandy and peaches for the pleasure of it, and to be with the party. That he had drank some, whiskey on that day prior to bis entering the store of defendant, but was not drunk when be joined the party at the'store.\\nOrphie Swinson, for the State, testified : That be was there on the third Sunday in May at defendant\\u2019s store, and saw Archie Mathis buy the four bottles of brandy peaches ; that they were put up in bottles, three peaches in a bottle, which filled the bottle, and the peaches were covered with liquid \\u2014 there being about three drinks of such liquid to the bottle. That he threw the peaches away and drank the three drinks it contained, and they made witness drunk. That he had not had any other liquor that day, and saw no other in the crowd except what was in these bottles.\\nDefendant testified in his own behalf, that he sold Archie Mathis and Orphie Swinson the brandy peaches without prescription, etc. That he kept them in stock and sold them as groceries, as food; that they were groceries and so considered in the trade. That the United States Court had so decided in an indictment for selling the same kind of peaches and cherries; that it was not brandy in which they were, but a syrup; that they were made by putting the peaches in brandy and letting them remain there till they had absorbed enough brandy to preserve them, and had then been taken out and put in bottles and covered with a syrup which was free from spirituous liquors and remained in siich bottles till sold ; that they would not make one drunk unless he made a glutton of himself, if they would make him drunk at all. That the State witnesses had been drinking before on said day, or the peaches and cherries and syrup would not have made them drunk.\\nThe defendant asked his Honor to instruct the jury\\u2014\\n1. That if these peaches and cherries were in the general class of groceries and a food, and only contained enough liquor or alcohol to preserve them and make them marketable as a food, and the defendant sold them in good faith as a food, that the jury should return a verdict of not guilty.\\n2. That if the defendant really and honestly believed that they were general stock of groceries, and that they were made as set out and for the purposes mentioned in the evidence of the defendant, then the sale would not be wilful, and the jury should return a verdict of not guilty.\\n3. That if the jury believe that the peaches and cherries and syrup in them would not make a person drunk unless he had already been drinking liquor, they should find the defendant not guilty.\\nHis Honor declined to give the three instructions asked, and defendants excepted.\\nHe further charged the jury that, if they believed the evidence, the defendant had sold the articles on Sunday without prescription, and not for sickness, etc., and the question of defendant\\u2019s guilt or innocence would depend on whether the articles sold were spirituous and intoxicating liquors as described in the State\\u2019s evidence; that if they were satisfied beyond a reasonable doubt that the liquor in which the peaches were preserved in the bottles sold was brandy or other liquor, and same contained alcohol in sufficient quantities to make one drunk when freely used, they would render a verdict of guilty; otherwise, not guilty.\\nJury rendered a verdict of guilty. Motion for new trial by defendant, for error in charge of Court in refusing defendant\\u2019s prayer for instructions, and for error in giving the instructions given.\\nThe motion was refused and from the judgment defendant appealed.\\nThe Attorney General, for State.\\nMr. A. D. Ward, for defendant (appellant).\", \"word_count\": \"1267\", \"char_count\": \"7330\", \"text\": \"FaieCloth, C. J.:\\nThe defendant was indicted for unlawfully selling spirituous .liquors on Sunday without prescription, etc.\\nThe Oode, Sec. 1117, enacts: \\\"If any person shall sell spirituous or malt or other intoxicating liquors on Sunday except on the prescription of a physician, and then only for medical purposes, the person so offending shall be guilty of a misdemeanor.\\\"\\nThese are direct and unambiguous words. Two witnesses for the State testified that they drank of bottles of brandy peaches sold by the defendant on Sunday, and were made drunk thereby. The defendant testified in his own behalf that he sold brandy peaches without prescription, etc.; that he hept them in stock and sold them as groceries, as food; that the liquid was syrup and not brandy. His Honor charged the jury that if they believed the evidence the defendant had sold the articles on Sunday without prescription, etc., and the question of the defendant's guilt or innocences would depend on whether the articles sold were spirituous and intoxicating liquors, as described in the State's evidence; that if they were satisfied beyond a reasonable doubt that the liquor in which the peaches were preserved in the bottles sold was brandy or other liquor, and the same contained alcohol in sufficient quantities to make one drunk, when freely used, they would render a verdict of guilty, otherwise not guilty.\\nThe whole evidence being before the jury, under the above charge, they necessarily had to determine whether the liquid in the bot-tles was brandy or syrup, as claimed by the parties, without other instructions.\\nHis Honor properly gave the defendant the benefit of going to the jury on the question of the quality or character of the liquid drank from the bottles, although this Court has held that when the liquid, by common know ledge and observation, is intoxicating, the Court may so declare; but if it is doubtful whether or not it be so, then the question of fact is raised for the jury. State v. Giersch, 98 N. C., 720, and several preceding decisions.\\nAffirmed.\"}" \ No newline at end of file diff --git a/nc/8656156.json b/nc/8656156.json new file mode 100644 index 0000000000000000000000000000000000000000..bd636b276251dad066761cc2525618c02fcb19c1 --- /dev/null +++ b/nc/8656156.json @@ -0,0 +1 @@ +"{\"id\": \"8656156\", \"name\": \"O. V. WOOSLEY v. COMMISSIONERS OF DAVIDSON COUNTY\", \"name_abbreviation\": \"Woosley v. Commissioners of Davidson County\", \"decision_date\": \"1921-11-16\", \"docket_number\": \"\", \"first_page\": \"429\", \"last_page\": \"433\", \"citations\": \"182 N.C. 429\", \"volume\": \"182\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T19:14:38.082925+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"O. V. WOOSLEY v. COMMISSIONERS OF DAVIDSON COUNTY.\", \"head_matter\": \"O. V. WOOSLEY v. COMMISSIONERS OF DAVIDSON COUNTY.\\n(Filed 16 November, 1921.)\\n1. School Districts \\u2014 Counties\\u2014Education\\u2014Statutes\\u2014Constitutional Law \\u2014High Schools \\u2014 Divisions\\u2014Segregation of Pupils.\\nOur statutes providing that the county board of education shall divide the townships, or the entire county, etc., into convenient school districts, etc., C. S., 5469, and authorizing and empowering the board to redistrict the entire county and consolidate school districts, etc., C. S., 5473, was passed in pursuance of Article IX, section 3, of the State Constitution, and refers to the establishment, consolidation, etc., of districts in the sense of territorial or geographical regions, and not to the dividing or segregation of the pupils; and an attempt of the county board of education thereunder to form a high school district in a territory comprised of several public school districts, is without authority and invalid. As to whether this may be done under the Public Laws of 1921, ch. 179, is neither before the Court nor decided on this appeal.\\n2. School Districts \\u2014 Bonds\\u2014 Taxation\\u2014 Counties \\u2014 \\u25a0 Statutes \\u2014 Constitutional Law \\u2014 Local Laws \\u2014 Injunction.\\nAn act which authorizes a high school district, sought to be established under an invalid resolution of the county commissioners, to issue bonds and levy taxes for school purposes, is itself invalid to confer such authority; and an act for the purpose of ratifying such ordinance, passed since the adoption of Const., Art. II, sec. 29, is a local, private, or special act thereby prohibited; and' the issuance of such bonds and levy of such taxes, will be permanently enjoined.'\\nAppeal by defendant from Webb, J., at chambers, 14 October, 1921, from DavidsoN.\\nControversy without action, heard upon an agreed statement of facts, the material and controlling parts of which are as follows;\\n\\u201c1. That the board of education of Davidson County in meeting duly assembled on 16 February, 1921, created or attempted to create a school district, to be known as the Lexington High School District, by adopting the following resolution, by unanimous vote, all the commissioners present and voting:\\n\\u201c \\u2018Be it resolved by the board of education of Davidson County, that it is in the opinion of the said board for the best interest and for the educational advantage of the residents of the following named school districts, to wit, Dacotah District, Fowler District, Hargrove District, Greenwood District, Pilgrim District, Nakomis District, Southside District, and Lexington District, that a high school district be created to comprise the said districts.\\n\\u201c \\u2018Therefore, be it further resolved, that a high school district, to be known as the Lexington High School District, comprising the districts above set forth, be, and the same is hereby, created.\\u2019\\n\\u201cThat prior to 16 February, 1921, no school district was in existence containing as a whole the territory now embraced in the alleged school district known as the Lexington High School District, and no other or further action than that set forth above has been taken by the county board of education in relation to the creation of said school district.\\n\\u201c2. That the General Assembly of North Carolina, at its regular session of 1921, passed an act (not yet published in book form) entitled, 'An act to authorize the Lexington High School District of Davidson County to issue bonds and to provide a tax levy for the payment thereof, and a tax levy for maintenance,\\u2019 which act was ratified on 2 March, 1921.\\n\\u201c3. That the General Assembly of North Carolina, at its regular session of 1921, passed an act (not yet published in book form) entitled, 'An act incorporating the Lexington High School District,\\u2019 which act was ratified on 7 March, 1921. That said act created a governing body for the proper and more efficient management of the Lexington High School District, which governing body was known and designated as the Lexington High School Commissioners, and was constituted a body politic and corporate with the power to exercise the rights and privileges incident to corporations, and the said act made other provisions for the conduct of the high school in said district.\\n\\u201c4. That pursuant to the first act above mentioned, ratified 2 March, 1921, -and as provided therein, the board of education of Davidson County on 7 March, 1921, petitioned the board of county commissioners of Davidson County to call an election in the Lexington High School District for the purpose of submitting to the qualified voters of said district the question of the issuance of $225,000 of bonds, to be used in erecting and equipping a school building in said district, and the purchase of a site therefor, and the levy of an annual tax for the payment of principal and interest, and also for the purpose of submitting to the voters the question of the levy of an annual tax for the maintenance of the high school so erected.\\n\\u201c5. That pursuant to the said petition, and under the authority conferred upon them by the said special act, the board of commissioners of Davidson County, at their regular meeting on 7 March, 1921, granted the prayer of the board of education as set forth in said petition, and ordered a new registration of voters and ordered the said special election to be held in the Lexington High School District on 19 April, 1921, which said election was duly carried.\\n''6. That of the eight school districts mentioned and set forth in the resolution of the county board of education, passed 16 February, 1921, as the districts which are to be comprised in the Lexington High School District, six are school districts created by the county board of education under tbe general law, and without any vote of tbe electors for sucb creation, and no tax is levied therein. In each of tbe said districts a school committee is in charge of the school properties therein. That one of said districts, to wit, Nakomis District, is a special-tax school district, and by vote of the electors thereof a local tax is levied for the maintenance of the school. That the Lexington District referred to in said resolution is not a school district in any sense save that the boundaries thereof are coterminous with the boundaries of the town of Lexington, the charter of. which town vests the management of the schools therein in a special board of school trustees, and the town levies a tax therein for school purposes and for the payment of school bonds issued by the town for the school buildings.\\n\\u201c7. That the board of education of Davidson County, in the resolution adopted 16 February, 1921, did not attempt to consolidate the eight districts mentioned in the said resolution into one district and thereby wipe out and abolish the several then existing school districts, and no action has been taken by the county board of education or any other board to annul or repeal the creation of said constituent districts or to abolish the said committees having charge of the school property in said districts, and all of the same are continuing to function as if the Lexington High School District had not been created, and the school taxes have 'continued to be levied and collected in the said Nakomis District and in the town of Lexington, for the said county board of education attempted to create the Lexington High School District by overlapping or superimposing the said district on the eight districts comprised therein, and pursuant to the authority contained in the second act above mentioned, ratified 1 March, 1921, has elected a board of commissioners for the said Lexington High School District, the members of which having qualified.\\n\\u201c9. That it is the declared intention of the board of education of Davidson County and the board of commissioners of Lexington High School District to erect a high school building and to maintain therein a high school for the attendance of pupils residing within the so-called Lexington High School District, who are being taught those subjects commonly called 'high school subjects\\u2019 or studies, and pursuant to said declared purpose the board of commissioners of Davidson County, pursuant to the vote cast at said election, have authorized the issuance of the said $225,000 of bonds, and are preparing to issue same, and are. preparing to levy the tax for the payment of the principal and interest of said bonds, and are preparing to levy a tax for the maintenance of the said schools; and the said board of education of Davidson County, in accordance with the provisions of the said special act, are preparing to sell said bonds.\\u201d\\nTbe plaintiff is a resident and taxpayer of Davidson County, living within and having property located in that section of the county which, for the purposes of this action, is designated as the Lexington High. School District.\\nFrom a judgment continuing and making permanent the temporary-restraining order, and holding that the hoard of education of Davidson County was without authority to create the Lexington High School District in the manner proposed, and that the issuance of the bonds in question was without warrant of law, the defendants appealed.\\nBaper & Baper for plaintiff.\\nJ. L. Morehead for defendants.\", \"word_count\": \"2325\", \"char_count\": \"13965\", \"text\": \"Stacy, J.\\nIt is conceded at the outset that the board of education and the commissioners of Davidson County have not proceeded under C. S., 5511, for the establishment of a central high school, or high schools in a township, as provided by said section. It should also be noted that the resolution of the board of education, purporting to create the Lexington High School District, and the two special acts of the Legislature relating thereto, were all passed prior to the enactment, on 8 March, 1921, of ch. 119, Public Laws 1921, amending the public school law of the State. Hence, the validity of the resolution and the special acts in question must he determined by the law as it existed at the time of their passage \\u2014 there being no suggestion of a ratification by any subsequent legislation.\\nThe sections of the school law chiefly relevant and bearing upon the questions now before us are:\\n0. S., 5469, which provides: \\\"The county board of education shall, divide the townships, or the entire county or any part of the county into convenient school districts, as compact in form as practicable. It shall consult the convenience and necessities of each race in settling the boundaries of the school district for each race.\\\"\\nAnd 0. S., 5473, which is in terms as follows: \\\"The county board of education is hereby authorized and empowered to redistrict the entire county or any part thereof and to consolidate school districts wherever and whenever in its judgment the redistricting or the consolidation of districts will better serve the educational interests of the township, or the county, or any part of the county.\\\"\\nIt will be observed that these statutes, which were passed in obedience to Article IX, section 3, of the Constitution, confer upon the several county boards of education authority (1) to divide the townships, or the entire county, or any part thereof, into convenient school districts (not to exceed the limit fixed by 0. S., 5472); and (2) to redistrict the entire. county, or any part thereof, and to consolidate school districts whenever and wherever such, in their judgment, will better serve the educational interest of the townships or of the county.\\nThis grant of power from the Legislature, we apprehend, refers to the establishment, consolidation, etc., of districts in the sense of territorial divisions or geographical regions (Howell v. Howell, 151 N. C., 575; 18 c. J., 1292), and not in the sense of dividing or segregating pupils as distinguished from the land on which they live. \\\"In its ordinary meaning the word district is commonly and properly used to designate any one of the various divisions or subdivisions into which the State is divided for political or other purposes, and may refer either to a congressional, judicial, senatorial, representative, school, or road district, depending always upon the connection in which it is used.\\\" Oliver v. State, 11 Neb., 1, 13; 7 N. W., 444.\\nGiving to the words of the statute their usual and customary meaning, we have found no authority for the establishment by the county board of education of such a district as the \\\"Lexington High School District (No. 7, agreed facts), which, to be more exact, might properly be termed a superdistrict in that it is sought to be created by superimposing the same upon the eight districts comprised therein. An arrangement of this kind may be very desirable and helpful in the building up of an educational system for the State; but, as now advised, we do not think the Legislature had so declared its purpose and policy at the time of the attempted establishment of the district in question. Nor do we wish to be understood, by what is said here, as suggesting that probably such a district might be created under ch. 179, Public Laws 1921: This latter question is not before us, and any expression presently made would be obiter and we make none.\\nHolding, as we do, that the resolution of the board of education of Davidson County, passed on 16 February, 1921, was insufficient to accomplish the desired purpose, and that the establishment of the proposed district was therefore-ineffectual, it follows that the special acts of the Legislature, incorporating and authorizing said district to issue bonds, must be declared inoperative. Ex nihilo nihil fit.\\nThere being no valid district in existence, the Legislature now is without authority itself to pass any local, private, or special act establishing or changing the lines of school districts. Const., Art. II, sec. 29; Sechrist v. Comrs., 181 N. C., 511; Trustees v. Trust Co., 181 N. C., 306.\\nThe judgment of his Honor permanently enjoining and perpetually restraining the defendant from issuing the'bonds in question must be upheld upon the facts now app\\u00e9aring on the instant record.\\nAffirmed.\"}" \ No newline at end of file diff --git a/nc/8657268.json b/nc/8657268.json new file mode 100644 index 0000000000000000000000000000000000000000..3936edb6b200c023cd26f61eb7d4d13d75517467 --- /dev/null +++ b/nc/8657268.json @@ -0,0 +1 @@ +"{\"id\": \"8657268\", \"name\": \"ELIZABETH CARTER v. JOHN T. STRICKLAND and Wife, MYRTLE STRICKLAND\", \"name_abbreviation\": \"Carter v. Strickland\", \"decision_date\": \"1914-02-25\", \"docket_number\": \"\", \"first_page\": \"69\", \"last_page\": \"74\", \"citations\": \"165 N.C. 69\", \"volume\": \"165\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T21:46:40.772560+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ELIZABETH CARTER v. JOHN T. STRICKLAND and Wife, MYRTLE STRICKLAND.\", \"head_matter\": \"ELIZABETH CARTER v. JOHN T. STRICKLAND and Wife, MYRTLE STRICKLAND.\\n(Filed 25 February, 1914.)\\n1. Wills \\u2014 Intent\\u2014Precatory Words \\u2014 Trusts and Trustees.\\nA will should be construed to effectuate tbe intent of tbe testator as gathered from the terms used by him therein; and. precatory words will be given their ordinary and usual significance, unless from the terms and disposition of the will and the circumstances relevant to its proper construction it clearly 'appears that they are to be considered as imperative, and that the testator intended to create a trust.\\n2. Same.\\nA devise of certain lands to the testator\\u2019s niece, by name, with \\u201crequest\\u201d that she shall devise it to her daughter M. at her death, and it appears from other parts of the will that the testator knew apt words to create a trust, and in a subsequent clause of the will referred to the' lands devised to the niece: Held, -the niece, being nearer to the testator in blood, is evidently the pri- \\u2022 mary object of his bounty, and under the terms of the will it was the testator\\u2019s intent and purpose to devise the lands in fee to his niece, not raising a trust in favor of M., but referring the matter to the affectionate discretion of the mother. The position is not affected by an admission on the part of the devisee, \\u25a0the niece, that the testator was very fond of M., her daughter, had her to visit him frequently, and had contributed largely to her education.\\nAppeal bj defendants from Connor, J., at August Term, 1913, of Nash.\\nCivil action to remove a cloud from title, tried on pleadings and facts admitted.\\nFrom these facts it appeared that some years prior to institution of this suit one John A. Williams died testate in Warren County, having made his last will and testament, duly admitted to probate, and said will containing, among others, the following items, being those more relevant to the inquiry:\\n\\u201c(2) Item. I devise and bequeath to my niece, Elizabeth W. Carter, my plantation near Shady Grove on which I now reside, it being the farm willed to me by my brother, Thomas A. Williams, and not including any of my other land; and it is my request that my said niece, Elizabeth W. Carter, shall, at her death, devise said tract of land to her daughter, Myrtie E. Carter.\\n\\u201c(3) Item. I also give and bequeath to my said niece, Elizabeth W. Carter, tbe sum of $700, to be paid her by my executors out of my estate, and also all the crop' and stock on the land devised her in Item 1, and also all the furniture in my house, except certain articles hereinafter excepted and bequeathed to my grand-niece, Myrtie E. Carter.\\n\\u201c(4) Item. I give and bequeath to my great-niece, Myrtie E. Carter, my walnut bedstead, and the bed and furniture belonging thereto, and also my center-table, walnut bureau, and dining-room press. And whereas my said great-niece, Myrtie E. Carter, holds my not\\u00e9 for the sum of $1,500, it is my will that my executors, and they are hereby so directed, pay the amount of said note to my said great-niece out of my estate.\\u201d\\n\\u201c(11) Item. I give and bequeath to my brother, Dr. Samuel A. Williams, his heirs and assigns, all the residue of my personal property of whatever kind, to be held by him in trust for the use of his children and to be given them at his death; but it is my will that my said brother, Samuel A. Williams, shall use the interest accruing from said money or property during his life to support his family\\u201d; that plaintiff, Elizabeth Carter, is the niece referred to'in the will, and feme defendant, Myrtie E. Strickland, is Myrtie E. Cartery and daughter of plaintiff, since intermarried with defendant John T. Strickland; that soon after the death of John A. Williams the plaintiff entered on the tract of land in question, the same being the farm near Shady Grove referred to in the will, and has since continued to occupy and possess the same, claiming the absolute and beneficial ownership under the terms of the will; that defendant Myrtle Strickland contends and claims: \\u201cThat under the will plaintiff is absolute owner of the land only for life, and that beneficial ownership in remainder is in this defendant; that the word request, in Item 2 of the will, was there used by the testator in the imperative sense, and that plaintiff had no right'to accept and hold the property under-the will and at the same time refuse to carry out the request made in reference thereto.\\u201d\\nIn aid of this position, defendants further aver in the answer, and, for the purpose of the. action the same is admitted to be true, \\u201cThat the testator was especially devoted to the feme, defendant, who stayed a great part of the time with him at his home in Warren County, and the expense of her education was largely borne by him,\\u201d etc.\\nUpon these facts the court, being of opinion that plaintiff was absolute owner of the property in fee, entered judgment as prayed by plaintiff, and defendant excepted and appealed.\\nBunn & Spruill for plaintiff.\\nJacob Battle for defendant.\", \"word_count\": \"2011\", \"char_count\": \"11430\", \"text\": \"Hoke, J.,\\nafter stating the case: Some of the earlier English cases, and they have been followed by decisions in this country, are to the effect that a trust will be engrafted or imposed upon an estate, absolute in terms, or upon its holder, by reason of precatory words in a will whenever \\\"the objects of the precatory language are certain and the subject of the recommendation or wish is also certain\\\" \\u2014 a position supposed to best effectuate the intent of the testator. A consideration of the later cases, however, will show that, in the decisions referred to, the principle has been too broadly stated, and it is now the prevailing doc trine, certainly so in this jurisdiction, that sucb words will be given their ordinary significance, and will not have the effect, as stated, unless from the terms and dispositions of the will and the circumstances relevant to its proper construction it clearly appears that they are to be considered as imperative and that the testator intended to create a trust. Fellowes v. Durfey, 163 N. C., 305; Hayes v. Franklin, 141 N. C., 599; St. James Church v. Bagley, 138 N. C., 384; Batchelor v. Macon, 69 N. C., 545; Alston v. Lea, 59 N. C., 27; Post v. Moore, 181 N. Y., 15; Foose v. Whitmore, 82 N. Y., 405; Burns v. Burns, 137 Fed., 781; Williams v. Worthington, 49 Md., 572; Williams v. Baptist Church, 92 Md., 497; Aldrich v. Aldrich, 172 Mass., 10; Orth v. Orth, 145 Ind., 184; Pomeroy Eq. Jurisprudence (3d Ed.), secs. 1015-1016; 22 A. and E. Ene., p. 1163.\\nIn the recent case of Fellowes v. Durfey the Chief Justice quotes with approval from Burns v. Burns as follows: \\\"The tendency of the modern decisions, both in England and in this country, is to restrict the practice which deduces a .trust from the expression by the testator of a wish, desire, or recommendation regarding the disposition of property absolutely bequeathed\\\"; and in St. James Church v. Bagley, Connor, J., delivering the opinion, said: \\\"Formerly, the rule in England was that whenever property was given, coupled with expressions of request, hope, desire, or recommendation that the person to whom it is given will use or dispose of the same for the benefit of another, the donee will be considered a trustee for the purpose indicated by the donor. Such expressions were regarded as prima facie imperative. 'But within the last few years the doctrine has changed, and the English rule is now that precatory words are not to be regarded as imperative unless it is plain from the context that the testator so intended them. Prima facie, a mere request or an expression of hope, confidence, or expectation does not import a command,' citing Bispham Eq. (6 Ed.), p. 117.\\\"\\nThe case of Colton v. Colton, 127 U. S., 300, to which we were referred by counsel, is in approval of. the same general principle. True, in Colton's case the trust was upheld, the \\u2022Court laying much stress on facts dehors, establishing a moral obligation for support and maintenance on the part of the testator and tending to show that the claimants were an aged mother and sister'largely dependent on his bounty, and giving color to certain phraseology of the will permitting construction; but, on the question presented here, it was held, among other things, that, \\\"When property is given by will absolutely and without restriction, a trust is not to be lightly imposed upon mere words of recommendation and' confidence,\\\" etc., and Associate Justice Matthews, delivering that opinion, refers to an opinion of Chief Justice Gray for a correct statement of the doctrine, in these terms: \\\"The existing state of the law on this question, as received in England, and generally followed in the courts of the several States of the Union, is well stated by Gray, G. J., in Hess v. Singler, 114 Mass., 56, 59, as follows: 'It is a settled doctrine of courts of chancery .that a devise or bequest to one person, accompanied by words expressing a wish, entreaty, or recommendation that he will apply it to the benefit of others, may be'held to create a trust, if the subject and the objects are sufficiently certain. Some of the'earlier English decisions had a tendency to give to this doctrine the weight of an arbitrary rule of construction. But by the later cases in this and in all other questions of the interpretation of wills the in-. tenti'on of the testator, as gathered from the whole will, controls the court; in order to create a trust, it must appear that the words were intended by the testator to be imperative; and when property is given absolutely and without restriction, a trust is not to be lightly imposed, upon mere words of recommendation and confidence.' \\\"\\nA correct application of the principle, as stated and sustained by these decisions, is in full support of his Honor's ruling. The testator was evidently a man of intelligence, or he acted in this instance under very intelligent advice. A perusal of Item 11 of his will shows that he knew the use of apt and efficient words to create a trust when he so desired. In Item 2 he first devises to the plaintiff his home plantation in terms of absolute ownership, and again in Item 3 he bequeaths to her the sum of $700 and all crops and stock on tbe land, again referring to it as the land devised to her. Nearer to him in blood, she is evidently the primary object of his bounty, and we are clearly of Opinion that the \\\"request\\\" in favor of defendant, appearing in 2d item of the will, is not sufficient to raise a trust in the property, but the testator only intended to refer the matter to the affectionate discretion of the devisee, the present plaintiff.\\n' -The allegations of the answer, \\\"That the testator was especially devoted to the feme defendant, who stayed a great part of her time with him at his home place, and that the expenses of her education were largely borne by him,\\\" and admitted by plaintiff, for the purposes of this action are not sufficient to alter or affect the result. They show no state of dependence on the part of the feme defendant, nor do they establish any moral claim to further support, but are entirely consistent with a disposition of the property in favor of the plaintiff, who was the defendant's own mo\\\"ther.\\nOn perusal of the will and the facts'in evidence, we are of opinion, as stated, that plaintiff is entitled to the property in absolute ownership, and that the decree protecting her in the possession and enjoyment of such an estate must be\\nAffirmed.\"}" \ No newline at end of file diff --git a/nc/8688824.json b/nc/8688824.json new file mode 100644 index 0000000000000000000000000000000000000000..781dd98ebdcdf5f395d8f1d7d51d4646e62c9b04 --- /dev/null +++ b/nc/8688824.json @@ -0,0 +1 @@ +"{\"id\": \"8688824\", \"name\": \"JOHN J. ROBERTSON, Adm'r, v. W. A. DUNN, Adm'r\", \"name_abbreviation\": \"Robertson v. Dunn\", \"decision_date\": \"1882-10\", \"docket_number\": \"\", \"first_page\": \"191\", \"last_page\": \"196\", \"citations\": \"87 N.C. 191\", \"volume\": \"87\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T23:17:44.721996+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN J. ROBERTSON, Adm\\u2019r, v. W. A. DUNN, Adm\\u2019r.\", \"head_matter\": \"JOHN J. ROBERTSON, Adm\\u2019r, v. W. A. DUNN, Adm\\u2019r.\\nNegotiable Instruments \\u2014 Statute of Limitations \\u2014 Demand\\u2014 Trusts \\u2014 Agency.\\n1. The presumption of fact that the holder of unendorsed paper is the owner, is only evidence against the maker in an action on the note, but cannot avail the holder in an action brought against him by the legal owner.\\n2. Where the holder has converted the note by suit and judgment, the legal owner can maintain trover, or waive the tort and sue in assump-sit, (if the money has been received) within three years from the con-' version or receipt of the money.\\n3. The rule in reference to demand, in cases arising upon express and implied trust or agency, when necessary to terminate the same and put the statute of limitations in operation, stated by Ashe, J., and distinction drawn.\\n(Pugh v. Grant, 85 N. C., 39; Jackson v. Love, 82 N. C., 405, cited and approved.)\\nCivil Action tried at Spring Term, 1882, of Halifax Superior Court, before Bennett, J.\\nThe following facts were agreed upon :\\n1. On the 10th day of December, 1862, one David C= Camp covenanted under his hand and seal to pay Ann Camp, the intestate of the plaintiff, the sum, of seven hundred and ninety-five dollars with interest from date in manner and form as follows:\\n\\u201c With interest from date I promise to pay Mrs. Ann Camp, or order, the sum of seven hundred and ninety-five dollarsforvaluereceived,this December 10th, 1862.\\u201d (Signed and sealed by D. C. Camp.) And the same is credited with fifty dollars, Oct. 12th 1863.\\n2. That J. 0. Camp, the intestate of the defendant, brought suit on said note in his own name on the 6th day of April, 1874, said note being in his possession and produced by him at the trial, and recovered judgment thereon at special term of the court held on the 7th day of December, 1874, against the administrator of D. 0. Camp, and received from him |1059.75 on the 14th day of Januar}', 1875, and the residue, 1280.46, on the 5th day of March, 1877'.\\n3. The said note was never indorsed to the said J. O. Camp.\\n4. That J. O. Camp, the intestate of the defendant, died in June, 1879, and the defendant qualified as his administrator on the 6th of August of said year.\\n5. That Ann Camp, the intestate of the plaintiff, died on the 12th day of September, 1879, and the plaintiff qualified as her administrator on the 1st day of May, 1880.\\n6. That on the 18th day of May, 1880, the plaintiff demanded of the defendant payment of the aforesaid amounts collected by his intestate as aforesaid, but the defendant refused.\\n7. That this action was begun the 24th day of May, 1880. There was judgment for the defendant and the plaintiff appealed.\\nMr. Thos. N. Hill, for plaintiff.\\nMr. J. B. Batchelor, for defendant.\", \"word_count\": \"1558\", \"char_count\": \"8573\", \"text\": \"Ashe, J.\\nThere are only two questions presented by the record. First, has the plaintiff a right of action against the defendant; and secondly, is his right of action barred by the statute of limitations ?\\nThe note in suit was never indorsed. The defendant's intestate was the holder, and the plaintiff's intestate had the legal title. The defendant's intestate unquestionably had the right to bring the action upon the note as holder and recover judgment thereon, for when the holder produces the note sued on, and offers it in evidence, it raises a presumption of fact that he is the owner, and unless rebutted by the defendant entitles him to judgment. Pugh v. Grant, 86 N. C., 39; Jackson v. Love, 82 N. C., 405, and cases there cited.\\nBut it is a presumption which is only evidence against the defendant in fan action upon the note, and, as a mere presumption, cannot avail the holder in an action brought against him by the legal owner.\\nWhen a note is sued*on and reduced' to judgment in the name of the holder, it is such a conversion in the absence of any proof as to his right of possession, as will give the legal owner an action of trover against him, and the action would be barred after three years from the conversion. But the legal owner, if he eboses to do so, may waive the tort and bring an action in nature of assumpsit for money had and received to his use, where the money has been collected, and the statute in that case bars the action after three years from the time of the receipt of the money, or a demand therefor, according to the relation of the parties.\\nBut it is contended by the defendant's counsel, that while-.the action of trover is barred after three years from the conversion, the action of assumpsit being in this case for the same cause of action, must be subject to the same limitation. This position of the learned counsel is not supported by the \\u00a1authorities. For it is held that an action of assumpsit may not be barred by the statute, when to an action for a tort upon the same demand the statute may be pleaded. When there has been a tortious taking of his property, the injured party may bring trespass or trover, or he may waive both and bring assumpsit for the proceeds, when it shall have been converted into money; and if he choose the latter mode of redress, the tort-feasor cannot allege bis own wrong for the purpose of carrying back the injury to a time which will let in the statute.\\\" Angel on Limitations, \\u00a772, and cases cited in note 2.\\nSo in Lamb v. Clark, 5 Pick., 193, it was held that \\\"where the defendant obtained possession of divers promissory notes without a legal transfer from the owner, and received payment of some of them, more than six years, and of others, within six years next before the commencement of the action, it was held he was liable in assurc^psit for the sums received within the six years, and that \\\"he was estopped to say that the notes were obtained by fraud, and so an action of trover would have been barred bylhe statute.\\\" This case is directly in point with that under consideration.\\nThe position was taken in the argument before us that the defendant was an agent and the statute did not begin to srun against him until a demand, and the demand not having been made until within three years before the commencement of the action, there was nothing to prevent the plaintiff from recovering the sums received by the defendant, both' before and within the three years before the commencement of the action. Butin this we do concur. For while it is well settled that time does not bar a direct or express trust, as between trustee and cestui qm trust, till the trust is put an end to by a disavowal of the trustee (as is evidenced, for instance, by a demand and refusal,) yet it is as well settled that whenever a person takes possession of property in his own name, and is afterwards by matter of evidence or construction of law changed into a trustee, lapse of time may be pleaded in bar. ingel on Limitations \\u00a7471. And it is laid down by the same author, in section 178, that if one receive money or goods of another, believing that they belong to him, when in fact ex sequo et bono they belong to a stranger, that is an implied trust, and the stranger is entitled to recover and he may be barred by the statute of limitations.\\nWe take the distinction to be, that if it is an express trust or agency, a demand is necessary to terminate the trust and set the statute in operation; but if it is only an implied or constructive trust or agency, then no demand is necessary, but the'statute is put in motion as soon as the property is taken into possession or the money received. Therefore, as the defendant in the case before us offered no evidence as to the means by which his intestate acquired the possession of the note, he must be deemed a tort-feasor, and as the action of assumpsit is founded in contract, for the purposes of this action, he is regarded as an agent only by construction and becomes liable to the plaintiff's action, as soon as he received the proceeds of the note, and the statute began to run from that time, and no demand was necessary to put it in motion.\\nWe are therefore of the opinion that the sum of one thous- and and fifty-nine -fair dollars received by the defendant's intestate on the 14th day of January, 1875, is barred by the statute of limitations, but that there is no bar to the recovery of the sum of two hundred and eighty Tin? dollars, with interest, that sum having been received within three years before the death of Ann Camp, plaintiff's intestate, and the action was brought within one year after the issuing of letters of administration on her estate. C. C. P., \\u00a743.\\nThe judgment of the superior court must be reversed and judgment entered in this court in accordance with this opinion.\\nError. Reversed.\"}" \ No newline at end of file diff --git a/nc/8691045.json b/nc/8691045.json new file mode 100644 index 0000000000000000000000000000000000000000..17d33822013878d71fe16afeaaea9b604e1a5a76 --- /dev/null +++ b/nc/8691045.json @@ -0,0 +1 @@ +"{\"id\": \"8691045\", \"name\": \"Isaac Fraser v. Joseph M. Alexander, et. al.\", \"name_abbreviation\": \"Fraser v. Alexander\", \"decision_date\": \"1833-12\", \"docket_number\": \"\", \"first_page\": \"348\", \"last_page\": \"352\", \"citations\": \"2 Dev. Eq. 348\", \"volume\": \"17\", \"reporter\": \"North Carolina Reports\", \"court\": \"Supreme Court of North Carolina\", \"jurisdiction\": \"North Carolina\", \"last_updated\": \"2021-08-10T21:18:21.170746+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Isaac Fraser v. Joseph M. Alexander, et. al.\", \"head_matter\": \"Isaac Fraser v. Joseph M. Alexander, et. al.\\nUpon the construction of n will reciting an intention to dispose \\u201c of what worldly estate\\u201d &c. and directing \\u201cthat all my property, consisting of lands, stock of every kind, household and kitchen furniture, wagons, farming tools\\u201d should be sold at public sale, and disposing of the sales; and in another clause directing the sale of slaves, but making no disposition of the proceeds. \\u2014 It was held that the words \\u201call my property,\\u201d were qualified by the words \\\"consisting of\\u201d and restrained to the enumerated subjects, and that the sales of the slaves went to the next of kin.\\nThe bill stated that the plaintiff having been requested by Sarah Carson to draft her will complied and drew it as follow's :\\n\\u201cIn the name of God, Amen, &c. and as to whatworld- \\u201c ly estate it has pleased God to bless me with, I dispose \\u201c of in the following manner : Item, first : It is my will \\u201c that all my property, consisting of lands, stock of ev- \\u201c ery kind, household and kitchen furniture, wagon and \\u201c farming tools, be sold at public sale, and the money \\u201cthence arising to be disposed of as follows, viz : all \\u201cmy just debts to be paid and funeral expenses, then to \\u201c each of my heirs at law, viz : my mother Jinn, and \\u201csister Nancy, I give and bequeath the sum of fifty dollars each, provided they should call for it in the space \\u201cof three years from this date, and all the balance it is \\u201cmy will that it go to the use of the Presbyterian church- \\u201c es in the following manner : After paying the expenses of settling my estate, the.one-third to Hopewell \\u201c Church, one-third to Sugar creek Church, and the oth\\u201cer third to the use of Pan creek Church. It is my \\u201c will that my Executor sell my negroes at private sale, \\u201cgiving to each one of them a choice of masters, that can \\u201c make a choice. It is my will that Isaac Fraser execute \\u201cthis my last will and testament, and I do hereby revoke \\u201c any and all former wills by me heretofore made, wit\\u201cness, &c.\\u201d\\nThe plaintiff averred that the negroes were expressly included in the first clause, giving the property to the three churches, and were stricken out of it solely to enable the executors to sell them at private sale, and thus permit them to select their masters. That the plaintiff an(,\\u2018 ^iC testatrix both thought there was a clear disposi-tion of the proceeds of the sale of the slaves, similar in a\\u00a1j respects, to that of the other parts of the estate- The trustees of the three churches, and the next of kin were made defendants, and the prayer was to have the mistake corrected, or to have a declaration made of the title of the Churches to the proceeds of the sale of the slaves.\\nCan a mistake in drafting a will, uponarproofsUlor tlie answer of the corrected\\nThe next of kin denied any mistake in the draft of the will to be within their knowledge, and insisted upon their right to the sales of the slaves.\\nThe cause was heard upon bill and answer before Seaweed Judge, at Mecklenburg on the last Spring Term, who ruled,\\n1st. \\u201cThat the hill and answer fell short of ascertaining satisfactorily the truth of the alleged mistake.\\u201d\\n2d. Upon the construction of the will that \\u201c although it professed to dispose of what worldly estate the testatrix possessed, which words were equivalent to all her estate, yet that the proceeds of the sale of her negroes ivas not disposed of; that it might be said of the testatrix, voluit sed non dixit. That the legatees, if they take at all, must do so by an express bequest or by a necessary implication of one, neither of which appeared. That the next of kin are those on whom the law casts the estate in default of a different disposition.\\u201d His Honor then proceeded to ascertain the several sums due the legatees, and the next of kin, and decreed accordingly, from which the trustees of the churches appealed.\\nNo Counsel appeared for the legatees in this Court.\\nDevercux for the next of kin.\", \"word_count\": \"1954\", \"char_count\": \"11082\", \"text\": \"XtuiTiN, Chief Justice.\\nThe cause being set down for hearing upon the hill and answers, and the mistake in drawing the will, not being admitted in the answer *\\\"c !iex^ ^in, v,,b\\u00b0 alone could effectually admit it, the allegations of the bill upon that subject must be de-ciar\\u00b0d n0'1: to bo established, and the case must be decided upon the construction of the will as written. The i-'0111'* however, wot()d not he understood as intimating an opinion, that it would have been otherwise, if the mistake had appeared upon evidence, or even by the answer. It is intended, as the questions of the admissibility of proofs, and of their effect do not arise in the case, to leave them altogether unaffected by the decision.\\nIn the court of equity it was declared that the proceeds of the slaves of the testatrix, devolve upon her next of kin, as being undisposed of by the will, From that decree the trustees of the religious societies, to which the charitable bequests are made, appealed; and the only question made here is, whether the decree in that respect is right. I fully concur in the opinion delivered by the judge. I should think with him, if the whole depended on the first clause of the will alone. It is true the testatrix set out by declaring that she intends to dispose of \\\" what worldly estate it had pleased God to bless her with,\\\" and next says \\u00a3