Furr v. Simpson

271 N.C. 221 | N.C. | 1967

SHARP, J.

The general rule seems to be that orders requiring, or refusing to require, a party to answer questions in a pretrial examination are not immediately appealable. Annot., Appealability of order pertaining to pretrial examination^ discovery, interrogatories, production of books and papers, or the like, 37 A.L.R. 2d 586 (1954); 4 Am. Jur., 2d, Appeal and Error § 79 (1962). Appellee’s contention that this appeal should be dismissed as premature, however, is rendered feckless by our order allowing certiorari. When certiorari is granted, the case is before us in all respects as an appeal. Williams v. Board of Education, 266 N.C. 761, 147 S.E. 2d 381.

“After the ‘examining party’ and ‘the party to be examined’ have both filed their pleadings, ‘an examination is a matter of right and may be had as provided by G.S. 1-568.11.’ ” Aldridge v. Hasty, 240 N.C. 353, 356, 82 S.E. 2d 331, 335. Defendants’ sole purpose in examining plaintiff was to obtain evidence to be used at the trial. G.S. 1-568.3(2). The only way in which defendants can obtain the name under which plaintiff was first treated for a condition which she contends was aggravated by the accident in suit is to learn the name of the man to whom she was then married. Without it, as defendants point out, they can make no “exploration of previous accidents and injuries” to the portions of her body “which are the subject matter of the plaintiff’s claim for damages.” Patently, if their investigation is to be of any use to defendants, it must be made before trial, and, as a practical matter, the only way they can obtain the name of plaintiff’s former husband is by a pretrial examination of plaintiff. She was born and educated in Illinois. She has lived in North Carolina only four years. She came to this State from Missouri, where she had lived for five years. Her first breast operation was performed in Salt Lake City, Utah.

There would appear to be no legitimate reason why plaintiff should not disclose the name of the doctor to whom she was married at the time she had her first breast operation and whether he treated her for it. If, however, the relation of doctor and patient existed between plaintiff and her former husband, any information which he acquired while attending her in his professional character is protected by G.S. 8-53 in the same manner as if they had not been married to each other. See Lockwood v. McCaskill, 261 N.C. 754, 136 S.E. 2d 67.

The order of Falls, J., is reversed, and the case remanded with directions that an order be entered requiring plaintiff to answer the questions set out in the transcript which, upon advice of counsel, she refused to answer. One who takes a case to court as a litigant must, upon the request of his adversary, fully disclose his identity.

Reversed and remanded.