Nance v. Gilmore Clinic, Inc., 230 N.C. 534 (1949)

June 2, 1949 · Supreme Court of North Carolina

230 N.C. 534

JESSE R. NANCE v. GILMORE CLINIC, INC., DR. J. FRED MERRITT, DR. CHARLES W. REAVIS, and HENRY C. KIRKGARD.

(Filed 2 June, 1949.)

Bill of Discovery § 7b—

Under G.S. 8-89 a plaintiff is entitled to an order requiring- defendant to produce specified papers and documents to afford information necessary to the filing of the complaint. Planner v. St. Joseph’s Home, 227 N.C. 342, distinguished in that the matter sought to be discovered in that case was not necessary as a basis for filing complaint but to the contrary related to matter which it would have been improper to allege or which was not necessary to the statement of the cause of action.

Plaintiff’s appeal from Edmunds on, Special Judge, February 21, 1949, Civil Term, Guilfokd Superior Court.

Plaintiff brought this action against the defendants to recover damages for alleged tortious defamation and disclosures of confidential information acquired professionally while making a checkup on plaintiff’s physical condition and health in a clinic allegedly operated by them. At the same time notice of the nature of the action was given the defendants and an order obtained extending the time for filing the complaint. Simultaneously the plaintiff filed an affidavit setting forth the nature of the case, the facts upon which it was founded, the character of the relief sought, and the necessity of examining the defendants and the production by them of certain specified papers and documents, as information necessary to the filing of the complaint. The order and notice was duly served on defendants; the order requiring them to appear on a fixed day for such examination.

The examination was begun on the 22nd of September, having been continued from the original date, and at that time the clerk, on objection by the defendants, entered his order denying the motion of plaintiff to require the production of documents, but continued the hearing, apparently for examination of parties, to October 1. Defendants and plaintiff appealed.

Meantime plaintiff, on October 5, filed with the Clerk a separate petition'and affidavit relating to the production and examination of certain specific documents and records, mostly relating to the clinical examination made by defendants, and concerning 'the relation the several defendants have to each other and to the corporate defendant. The petition was allowed and in pursuance thereof a notice, and the order of the Clerk, was served on the defendants, requiring them to appear on a certain day and produce the documents for examination. On the day preceding the appearance date the defendants filed with the clerk and served upon the plaintiff notice of appeal to the Superior Court from the order so made.

On tbe bearing in tbe Superior Court, Judge Edmundson, without finding any facts, but basing bis action, as a matter of law, on Flanner v. St. Joseph’s Home, 227 N.O. 342, 42 S.E. 2d 225, reversed and set aside tbe order of tbe Clerk; and extended tbe time for filing complaint.

Tbe plaintiff appealed.

Hines <& Boren and Welch Jordan for plaintiff, appellant.

Smith, Wharton, Sapp & Moore for defendants, Gilmore Clinic, Inc., Dr. J. Fred Merritt, and Dr. Charles W. Reavis, appellees.

Seawell, J.

Tbe case at bar is distinguishable from tbe cited case when the latter is considered in its own frame of factual setting. Tbe Flanner case does not bold that tbe statute invoked, G.S. 8-89, is not available at all, under any circumstances, in seeking information to enable plaintiff to draft bis complaint. To construe it that way would, by redefinition, put tbe Court in opposition to prior precedent and recognized practice. Holt v. Warehouse Co., 116 N.C. 480, 21 S.E. 919; Abbitt v. Gregory, 196 N.C. 9, 144 S.E. 297, (cited in Fox v. Yarborough, 225 N.C. 606, 35 S.E. 2d 885). Belief in that case was denied because tbe declared purpose of tbe inspection was (1) to discover whether defendant bad liability insurance, which would have been an improper allegation in tbe complaint, and (2) to'obtain in advance of an expected plea in defense, evidence that defendant was a commercial rather than an eleemosynary corporation, not necessary to allege. Only in respect to discovery of evidence does tbe opinion bold that pleadings must first be filed and an issue raised to which tbe evidence sought must be pertinent.

Tbe court below based its order denying inspection on a matter of law, tbe inapplicability of tbe statute invoked, and tbe judgment is subject to review. On examination of tbe record we are constrained to bold that tbe plaintiff is entitled to tbe inspection of tbe documents listed, and tbe judgment to tbe contrary is reversed. The plaintiff will be given reasonable time to file complaint.

Eeversed.