Flanner v. Saint Joseph Home for the Blind Sisters, 227 N.C. 342 (1947)

April 16, 1947 · Supreme Court of North Carolina

227 N.C. 342

FLORENCE R. FLANNER v. SAINT JOSEPH HOME FOR THE BLIND SISTERS OF SAINT JOSEPH OF NEWARK, a Corporation of the STATE OF NEW JERSEY, Trading in the STATE OF NORTH CAROLINA, COUNTY OF CRAVEN, as ST. LUKE’S HOSPITAL.

(Filed 16 April, 1947.)

1. Bill of Discovery § 7b—

In, an action to recover damages for personal injuries, an order for inspection of writings to obtain information to' draft the complaint will not lie to discover whether defendant is protected by liability insurance, since the existence of such policy would not enlarge defendant’s liability and could not be pleaded.

2. Same—

An order for inspection of writings relating to financial operations of defendant to obtain facts to enable plaintiff to draw her complaint will not lie for the purpose of enabling plaintiff to determine whether defendant is a commercial rather than an eleemosynary corporation, since this remedy does not lie to forestall an anticipated defense.

3. Bill of Discovery § 7c—

An order for the production of writings to obtain evidence relating to the merits of the controversy is permissible only after issue joined.

4. Bill of Discovery § 8—

The affidavit supporting an order for the inspection of records and documents for the purpose of obtaining evidence must designate the records and documents sought to be inspected and show that they relate to the merits of the controversy.

5. Bill of Discovery § 7a—

Plaintiff may not proceed under G. S., 8-89, for an inspection of writings in defendants’ possession for the purpose of obtaining information to form the basis of an action against a third party.

Appeal by defendant from Burney, J., at February Term, 1947, of CRAVEN.

Civil action beard on motion for order for examination and inspection of insurance policies, books, and records of defendant.

Tbe plaintiff instituted tbis action by tbe issuance of summons. Sbe thereupon filed application for an extension of time in wbicb to file complaint, setting forth in tbe application that tbe action is to recover damages for personal injuries sustained through tbe negligence “of defendant, its servants, agents, employees and associates or insurer.” Tbe kind or type of transaction out of wbicb tbe injuries arose is not made to appear.

Thereafter, upon notice duly given, sbe moved for an order for tbe examination and inspection of tbe books and records of tbe defendant corporation and of insurance policies or contracts in possession of defendant “to tbe end that sbe may properly lay her action and prepare her complaint.” Tbe court, being of tbe opinion “that such examination is necessary and proper and reasonable to enable tbe plaintiff to prepare and file her complaint in tbe above-entitled cause,” ordered and directed tbe defendant to appear at a designated time and place and there produce for examination and inspection of plaintiff or her counsel “tbe boobs and records wherein are recorded tbe financial operations of tbe defendant in tbe operation of said St. Luke’s Hospital, tbe receipt and disposition of moneys and funds involved in tbe said operation, together with any and all insurance or assurance contracts relating in any way to tbe responsibility and liability of tbe said defendant or said insurance company, to tbe plaintiff.” Tbe defendant excepted and appealed.

R. E. Whitehurst, W. B. R. Guión, and G. B. Riddle, Jr., for plaintiff, appellee.

Barden, Stith & McOotier and W. J. Lansche for defendant, appellant.

Barnhill, J.

Plaintiff, by ber motion, seeks information as to whether defendant (1) is protected by liability insurance, and (2) is a commercial rather than an eleemosynary corporation. She asserts that this information is necessary to enable ber to prepare ber complaint. By its appeal tbe defendant challenges tbe right of plaintiff to examine its books and policies for tbe purpose indicated. Hence, tbe validity of tbe order of examination is tbe one question presented for decision.

Plaintiff concedes she has knowledge of tbe occurrence, and tbe attend- ' ant facts and circumstances, out of which ber injuries arose. That tbe defendant bad tbe forethought to protect itself against such liability as tbe law imposes for such injuries does not serve to enlarge or extend that liability. Borders v. Cline, 212 N. C., 472, 193 S. E., 826; Herndon v. Massey, 217 N. C., 610, 8 S. E. (2d), 914, and cases cited. Hence tbe existence of liability insurance is not a fact to be pleaded. Revis v. Asheville, 207 N. C., 237, 176 S. E., 738; Duke v. Children’s Com., 214 N. C., 570, 199 S. E., 918; Herndon v. Massey, supra.

Likewise, tbe financial operations of defendant corporation are not relevant or material to plaintiff’s cause of action. She insists, however, that defendant intends to plead in defense that it is an eleemosynary corporation and tbe information desired is to forestall this defense. But that issue as yet has not been raised, and is a barrier she need not attempt to hurdle until it is first erected by a plea duly made. In any event, she may not do so at this stage of tbe proceeding in the manner here attempted.

G. S., 8-89, provides a method for obtaining inspection of books, papers, and documents “containing evidence relating to tbe merits of tbe action . . .” But procedure thereunder, for tbe purpose of obtaining evidence, is permissible only after issue joined, and it must be made to appear that tbe information desired relates to tbe merits of tbe controversy in an action pending and at issue. McGibboney v. Mills, 35 N. C., 163; Branson v. Fentress, 35 N. C., 165; Sheek v. Sain, 127 N. C., 266; Chesson v. Bank, 190 N. C., 187, 129 S. E., 413; Ogburn v. Sterchi Brothers Stores, Inc., 218 N. C., 507, 11 S. E. (2d), 460.

Tbe affidavit supporting an order for inspection of records or documents in the possession of an adversary party for tbe purpose of obtaining evidence must designate tbe records and documents sought to be inspected and show that they are material to tbe inquiry. Chesson v. Bank, supra; Dunlap v. Guaranty Co., 202 N. C., 651, 163 S. E., 750; Gudger v. Robinson Brothers Contractors, Inc., 219 N. C., 251, 13 S. E. (2d), 414.

So tben, it is apparent tbat plaintiff’s motion and supporting affidavit fail to disclose facts sufficient to sustain tbe order entered, without regard to whether it is to obtain information to enable plaintiff to draft her complaint, as upon its face it purports to be, or is to obtain evidence relating to the merits of the controversy. Bailey v. Matthews, 156 N. C., 78, 72 S. E., 92; Fields v. Coleman, 160 N. C., 11, 75 S. E., 1005; Evans v. R. R., 167 N. C., 415, 83 S. E., 617; Chesson v. Bank, supra; Gudger v. Robinson Brothers Contractors, Inc., supra; Mica Co. v. Express Co., 182 N. C., 669, 109 S. E., 853; Patterson v. R. R., 219 N. C., 23, 12 S. E. (2d), 652; Dunlap v. Guaranty Co., supra; Washington v. Bus, Inc., 219 N. C., 856, 15 S. E. (2d), 372; Fox v. Yarborough, 225 N. C., 606.

Perhaps it is not amiss to add that plaintiff may not proceed under this section of our statutes to examine the defendant’s records and documents for the purpose of obtaining information to form the basis of an action against a third party insurance company.

For the reasons stated the judgment below is

Reversed.