*1 463 TERM, N. O.] Authority. In kb death, bis a presumption if raises living, to bear from expected bim,
be Sovereign Beard v. years,” end of seven tbat tbat be dead at tbe is, Harrison, 385; 90 N.C. University v. 661; 184 S.E. Lodge, N.C. 154, 113 Co., Trust Co., Deal v. 787; Steele v. Ins. N.C. 610; 2d 227 N.C. S.E. Lilley, v. 483, 11 464; N.C. S.E. 2d Carter Deal, 2d 73. N.C. S.E. Trust Co. v. rule, under tbe from seven absence arising years presumption, Sucb Bank, 211 Chamblee v. be rebutted. fact wbicb presumption Co., supra; Trust also Deal v. and cases See S.E. cited. Deal, supra.
Trust Co. v. arises raises presumption of facts on wbicb sucb However, proof tbe lineal descendants. died missing person no tbat tbe presumption R., Harrison, Deal v. v. R. Warner supra; v. University Deal, Co., Trust Co. v. supra; supra. Trust by evidence, findings fact, supported to tbe principles these
Applying petition- bold conclusion tbat tbe we tbat tbe judge, tbe approved in common is tenancy allegations failed to make their good ers have was proper. tbe of nonsuit judgment correct. Hence title under a a case of who has better This fails to tbe present record cited Cary, supra, by appellants, Stewart common source wbicb Jenkins, with Jane to connect their claim Failing relates. there common source. and are due consideration given have been
Other error assignments merit. found to be without judgment
Tbe below
Affirmed. SALISBURY, NORTH THE CITY OF OF In re : HOUSING AUTHORITY CAROLINA, PROJECT NC-16-2 April, 1952.) (Filed 30 Corporations Municipal 8d— § delegated power has been commissioners domain eminent Tlie 157-50, 157-11, bousing 40-37. G.S. G.S. authorities. G.S. — 4% Eminent Domain §
2. Same: discretion in the broad rests of a site The selection challenged only regard may housing authority in this and its action allegations discretion, charge of abuse of malice, allege sufficient, being fraud or bad conduct are faith. IN THE SUPREME COURT. In he *2 Municipal Corporations 3. 8d: Trial 20— § § though question housing authority Even of whether a acted arbi- trarily capriciously question or in the selection of a site be a of fact judge appeal clerk, judge reviewable from the nevertheless the discretionary power question jury. has the to submit the to a Appeal 4. and Error 8—§ Where, trial, exceptions parties in and the contentions of the relate solely jury, appellant may form of the issue to be submitted appeal question not contend minable that the matter involved a of fact deter- judge any jury and alone appeal that the submission of issue to the error, theory since the follow in must trial the lower court. Trial 36— 5. § presents adequately question Where the submitted issue issuable pleadings, to the issue is without merit. raised Municipal Corporations 8d: Eminent Domain 4c held 6. § § %—Evidence arbitrarily housing authority of whether acted sufficient to raise issue selecting housing project. capriciously site for and housing authority tending as site for to show that a selected Evidence college housing project part campus public of the of a maintained a a charitable selected constituted nary expansion religious organization from and with the aid of donations individuals college foundations, expanding, and the site building already of a was within hundred feet erected three essentially necessary part campus for ordi- to care gen- college development with its of the accordance authority housing plan, motion of the is held sufficient to overcome the eral finding of the that the commis- verdict and sustain the for a directed sioners trary” selecting arbitrarily capriciously in “Arbi- the site. had acted “capricious” defined. 7. Same— availability and com- sites is relevant of other suitable Evidence of the authority arbitrarily housing petent upon acted of whether the issue objected selecting particular capriciously to. Appeal Error 39e— § objection when is rendered harmless over admission objection. testimony is admitted similar Corporations 7a— Municipal Evidence 8d: § § proof preponderance Ordinarily the burden civil matters question greater weight, of whether or its of the evidence authority selecting arbitrarily capriciously does not come a site acted rule, respondents general any exceptions have the within greater weight showing of the evidence abuse of discretion burden of convincing proof. by clear, strong and and not J., or decision of this case. the consideration took
Denny, concurring Ervin, J., in the result. TERM, 1952.
N. O.] HOUSING AUTHORITY.
IN KE Appeal by petitioner, the City Salisbury, Sink, J., from and a Term, November RowaN. Special proceeding portion to condemn of a College as site for the erection low-rent housing project, heard below whether the Commissioners of the Housing instituted under proceeding (1) the Public Works Eminent Domain Law, Chapter Public Laws as amended, now codi- Chapter 40, fied as Article the General Statutes of North Carolina 40-30 (G.S. through 40-53) ; (2) Law, Authorities Chapter 456, Public Laws of amended, now codified as Chapter the General of North Statutes Carolina (G.S. 157-1 through *3 157-60).
The stipulates record with all compliance jurisdictional necessary requirements. petition Housing
The filed the Authority with of the Clerk the Court of Rowan Superior County alleges it is condemn a necessary to specifically designated of portion 7.25-acre the Livingstone College cam- pus corporate within the limits of the of a City as for Salisbury site the erection of 72-unit low-rent public housing project. respondent, Livingstone
The College, by answer denies that the prop- erty to be condemned sought necessary for housing project, and by alleges further answer the College that owns tract of large farm land 300 yards located west of the which campus some would suitable be and for convenient the location of proposed the housing project, the whole or of which offers to any part College the sell at price. reasonable
And to the by amendment answer the respondent alleges further that of Housing Authority the action “in and selecting seeking to the condemn of of part campus Livingstone College the ... is arbitrary, capricious in it attempts unreasonable that select of of campus the for a Livingstone College or housing project, consideration regard for or for Livingstone College further of expansion program Living- the . College stone educational . . and that institution, propriety as.an the of locating the . . . on of project campus the Livingstone College unlawful, unreasonable, capricious arbitrary, as Author- Housing the has ity available, other suitable sites of only within yards Living- stone in College, City of Salisbury.” elsewhere the
When the for questions hearing fact raised the pleadings came before Clerk of Superior Court, the he judgment finding the entered that site described petition proj- ect, and that the action of Housing Authority site was not arbitrary, capricious, unreasonable, thereupon decreed IN THE SUPREME COURT.
In RE de- Housing “has to condemn Authority right scribed in the petition.”
To so judgment entered, excepted the Clerk College appealed Superior Court.
A pre-trial held the the trial day Superior conference before was Court, which the was presiding Judge proof ruled that the burden respondent College allegations the Commission- establish ers select- Authority ing proposed testimony call of the
Upon case, respondent College offered the vitally show tending proposed various witnesses site College for the use that its expansion appropria- needed would be detrimental to the interests purposes sought tion for the College tending The also offered objectives College. evidence wherp could project show were suitable sites available that there other built. refutation show tending offered Housing Authority after other survey selected careful several for the upon that was settled as feasible site suggested sites; architect, city engineer, project advice engineers. and other' its planning consultant, follow- Judge formulated submitted presiding as answered indicated: ing which issue, City Commissioners “Were selection their Salisbury answer? respondent’s Project NO-16-2, alleged College site *4 ” ‘Yes.’ Answer: decreeing Housing verdict that was entered Judgment acres land described to condemn the 7.25 entitled “is of Livingstone Trustees respondent, and owned petition said College.” assigning Authority appealed, entered, Housing so judgment
From errors. Salisbury, the City Housing Authority petitioner, Max Busby for
appellant. <& Trustees respondent, Woodson and Woodson é Clement Clement College, appellee. for a what determining In J. JOHNSON, authority in housing is vested statute discretion a broad site, domain G.S. delegated. of eminent whom the power commissioners, 40-37. 157-50; G.S. G.S. 157-11; 467 TERM,
N. O.] Authority. re In commission
Indeed,
discretionary power
bousing
so extensive is this
of a
site
become
issuable
project
the selection
ordinarily
ers
of allegations charg
short
court,
nothing
determinable
question,
to abuse
discretion.
amounting
conduct
ing arbitrary
capricious
Hood,
Wissler,
267;
160
S.E.
Pue v.
Comr.
269,
Power
v.
N.C.
See
Co.
Banks,
2d 896. However, allegations
The these statutes constitutionality Charlotte, Hous Wells v. City supra; In Housing Authority re Kinston, 391, v. 217 N.C. 744, 197 693; 213 N.C. S.E. Authority, ing Cox A.L.R. Annotation. 252; 8 S.E. 2d answer filed out the amendment allegations set of commend- though language couched
respondent, Livingstone College, determination put test, able are sufficient moderation, action of the Commissioners whether the court, question amounting site was of discretion. manifest abuse contends whether question Housing Authority stressfully of the in the selection
its Commissioners but reviewable not triable by was a fact question It is urged from the Clerk. Judge appeal presiding only by submitting question this error prejudicial below committed the court jury. presented thus question that the issuable may, Conceding, we v. Co. Judge (Railway presiding of fact reviewable a question North Carolina Practice 696; McIntosh, 76 S.E. Gahagan, discretionary within the it was 543), nevertheless Procedure, pp. 542, for determination. to submit the Judge power Carter, 232 N.C. Nobles, v. 543; Carter 183 N.C. S.E. v. Selma 11 S.E. Barker Humphrey, 2d 614, p. 1-172. 2d 280. See also G.S. Judge the trial action of the record reflects
Besides,
of statement
Indeed,
pre-trial
aid
jury.
to his
calling
*5
at issue
question
for
sides assumed the
that counsel
both
indicates
Judge
side.
were tendered
each
issues
would be submitted to
but
submitted,
as
Housing Authority excepted
issue
It
true
exceptions
here relied
indicates
an examination
the record
the issue tendered
court to submit
to
(1)
relate
the refusal
IN
THE SUPREME COURT.
Iw RE
counsel for
Authority
(2) to
form
issue
formulated and submitted
the court.
There is
exception to
action of
court
respect to the basic question
trial.
jury
(R. pp.
15, 48, 49). Therefore,
instant challenge, being
an
unsupported by
exception,
not be
asserted
for
successfully
the first time on appeal.
ante,
Thompson
Thompson,
416. An
ex
appeal
necessitate follows the
Hood,
theory of
trial. Wilson v.
has
It
been said that “the law
permit
does not
parties
swap
to
horses between
get
courts in order to
a better mount in the Supreme Court.”
v.Weil
Herring,
6, p. 10,
presented issuable raised pleadings. Therefore, petitioner’s to exception the issue without merit.
Next, insists that the trial court in deny- erred ing its motion, refusing give prayer for special for instruction, a assignments directed verdict. These exceptive sufficiency test support evidence to the verdict require examination what law amounts to or “arbitrary” “caparicious” conduct Housing Commissioners. means fixed or done
“Arbitrary” pleasure. or An act when it is done adequate determining without not principle; done reason according judgment, depending upon alone, will in power, tyrannical, despotic, nonrational, implying —absolute either — of or understanding disregard lack the fundamental nature & Funk New things. Wagnall’s Dictionary; See Standard Words and 874 and Phrases, Edition, 875; p. 6 C.J.S. pp. Permanent means An “Capricious” freakish, fickle, arbitrary. act when reason, manner, it is done in whimsical either implying understanding disregard surrounding lack of facts and Funk & New controlling principles. Wagnall’s settled Standard See Phrases, Edition, 6 Words and Dictionary; p. Permanent C.J.S. p. 1137. synonymous terms.
“Arbitrary” “capricious” many respects acts, they When abuse dis- applied discretionary ordinarily denote nor do bad cretion, they signify necessarily imply faith. though refusal court to direct verdict tests Since as an sufficiency carry the evidence the case recapitulate it would no useful all the open question, purpose serve con, say, respond- issue. it to evidence, pro bearing Suffice tending to show factors : College controlling ent offered evidence these has been located North (1) College Salisbury, That College about 1885. For has main- Carolina, many years the been since donations from private A.M.E. Zion Church individ- tained *6 TERM, N. 469 O.] Housing Authority. In be and
uals foundations the throughout United Its cam- charitable States. in pus, containing acres, about is located the "WestWard of City the of Salisbury, Craig bounded on east on Street, the the south the Plank Old Road West Marsh on the (now Street), by McCoy west Street, on and the north West Monroe Street. Representatives the
(2) Housing Authority contacted officials College with a on acquiring the view site the western side of campus. College Board of Trustees, the after the considering pro- The reached the and posal, conclusion so notified could
they any part campus not consent of the to use put to as a public housing site, suggested project on might be located farm college some 1,450 acres located west of feet campus, accessible two roads. The more Housing Authority, settled however, upon parcel 7.25-aere southwest corner on Marsh and and campus fronting Streets instituted this McCoy pro- for its ceeding condemnation. for, The has and an
(3) College ap- accommodations enrollment of, It “to turn down from 100 proximately appli- students. has cations each It has and an “A” year.” four-year rating. curriculum Within six has (4) past years expended “a little over College $600,000” buildings campus, “$657,000 the erection on and has earmarked allotted for future erec- College expenditures buildings” development tion additional of its field. athletic No on However, (5) buildings proposed from field and feet the athletic from approximately recently feet Ballard erected which is the westernmost on Hall, building campus. Most of the on
(6) located side of present buildings are the eastern campus. calls for proposed plan expansion the location buildings campus new the western side proximity close athletic field and the proposed housing site, essentially site this to care for expansion development plant orderly facilities the College. thus appears tending
It substantial to show offered Housing Commissioners either failéd to understand disre- ill harm garded likely Livingstone College to come effects result locating public housing project. The testi- tends mony the inference that failed to support they consider the con- this college making tributions toward curing very social eco- nomic which public housing ills designed minimize. trial evidence offered when below, considered its light
most favorable to rule respondent, as is motion for directed verdict, was sufficient motion overcome sustain the jury- finding that the Commissioners of arbi- IN THE SUPREME COURT.
In RE trarily selecting the location of *7 Co., the v. housing See Ferrell Insurance project. 51, N.C. S.E. Co., 226 692; Perry v. Trust N.C. S.E. 2d 116. Another of of group exceptions challenge the action the trial court admitting testimony tending in evidence to show that sites other were available and suitable for the This housing project. evidence rele on bearing vant admissible main directly issue: the capriciously whether the Commissioners to the and none other. The attempting appropriate college campus site, In by appellant distinguishable. any event, authorities relied would seem to be reception challenged testimony in evidence of the of of admission other similar objection harmless view without Whisnant, 56; Sprinkle 2d v. S.E. testimony. Price Reidsville, ante, 140; v. 503. Murphy, post, v. S. should have urges charged also that the court Appellant issue respondent College satisfy the burden of evidence, “clear, but preponderance proofs the mere acted arbi convincing” Commissioners strong, is contention trarily of proof in civil matters the burden re Ordinarily merit. evidence, greater its a by preponderance carried be quired where, example, a it cases, It to few “as respect weight. a lost writing, or other to restore mistake deed correct proposed engraft mortgage, face into a deed absolute convert deed, to aof married estate, probate impeach upon legal trust parol custom, generally or local special establish a deed, to woman’s of a instrument force effect written apparent against obtain relief or other similar mistake, cause, mutual ground upon Brothers, Henderson Waste v. strong convincing.” Co. must be clear, Holt, 2d 221 N.C. S.E. 2d Henley general not come within the 62. The instant case does Evidence, 213, p. N. C. Sec. Stansbury, rule. See also brought forward remaining exceptions Our examination A perusal no record leaves prejudicial error. discloses appellant and no tried, reason fairly cause appellant’s impression to appear. has been made to disturb the result error. No or decision of this case. consideration took
DenNY, J\, If I had I my way, I concur in the result. J"., concurring: Ebvin, down as unconstitu- by striking directly same result more reach the would eminent domain. housing power authorities giving the statute tional TEEM, SPEING N. O.] Co.
Honeycutt v. Asbestos of one property condemns the authority housing statute, Under this can erase sophistry No amount dwellings others. person provide fact that this with- person one taking private plain being This uses of others. devoting private his consent, out upon domain eminent conferring power statute true, the of the State Con- declarations with the cannot reconciled authorities with an unalienable Creator all are endowed their that men stitution “no labor,” fruits their own enjoyment to “the right law . property, . . of his . . deprived to be . ought person should not 17. Courts Art. Section Const., I, land.” N. C. rights the constitutional acts which sacrifice legislative sustain social progress. to what is called individual *8 HONEYCUTT, ASBESTOS COMPANY CAROLINA
M. H. Employee, COMPANY, & ASBESTOS RUBBER UNION Employer; and/or COMPANY, Carrier. LIABILITY INSURANCE AMERICAN MUTUAL
(Filed April, 1952.) 40f— and Servant § Master compensable making occupational Com- under tbe Workmen’s diseases In Assembly, recognition Act, pensation be- tbe difference General tbe by occupational disability brought an about manner in wbicb tbe tween disability ordinary accident, up tests of bas set different an disease and must observe. wbicb the courts 2. Same— disability legislative is tbe and silicosis tbe test In of asbestosis cases occupation perform employee incapacity last normal labor an 97-55, 9T-54, remuneratively employed, in all other G.S. while G.S. in which wages employee incapacity be was to earn the of tbe test is tbe cases tbe (i). employment. any receiving G.S. 97-2 other in tbe same 3. Same— plant employee reason of becomes disabled in an asbestos Where distinguished occupation, performing in his normal labor from asbestosis rehabilitation, subject being merely G.S. affected asbestosis from 97-54, 97-61, employee and' as defined G.S. bas suffered disablement such actually employee thereafter fact that tbe not affected tbe this result is earning employment money at tbe time than be another earns more disability was determined. of bis tbe existence —(1) 53b and Servant § 4. Master plant company employed as foreman its asbestos one Claimant immediately preceding during fifty-two thirty-seven weeks weeks tbe for tbe date be bought by plant Tbe disabled from asbestosis. became