53 N.C. App. 600 | N.C. Ct. App. | 1981
Assuming the orders are interlocutory and non-appealable, we treat the appeal as a petition for a writ of certiorari and allow the writ in order to dispose of the issue presented on its merits. See Plumbing Co. v. Associates, 37 N.C. App. 149, 245 S.E. 2d 555, disc. rev. denied 295 N.C. 648, 248 S.E. 2d 250 (1978).
G.S. 1A-1, Rule 37(b), permits the following sanctions for failure to obey an order to permit discovery:
b. An order refusing to allow the disobedient party to support or oppose designated claims or defenses ....
c. An order striking out pleadings or parts thereof, ... or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party. _
Judge Lee’s order and judgment which (1) struck defendant’s answer, (2) ordered that defendant not oppose any claim or allegation set out in plaintiffs’ complaint, and (3) adjudged defendant to be in default and ordered judgment of default against him, clearly fell within these provisions. “The choice of sanctions to be imposed having been left by the rule in the court’s discretion, we may not overturn the court’s decision unless an abuse of that discretion is shown.” Silverthorne v. Land Co., 42 N.C. App. 134, 137, 256 S.E. 2d 397, 399, disc. rev. denied 298 N.C. 300, 259 S.E. 2d 302 (1979). See also Laing v. Loan Co., 46 N.C. App. 67, 264 S.E. 2d 381, disc. rev. denied 300 N.C. 557, 270 S.E. 2d 109 (1980); Plumbing Co. v. Associates, 37 N.C. App. 149, 245 S.E. 2d 555, disc. rev. denied 295 N.C. 648, 248 S.E. 2d 250 (1978); Shuford, North Carolina Civil Practice and Procedure § 37-3 (1975). The issue presented is whether an abuse of discretion has been shown by virtue of defendant’s claim that to compel response to the matters propounded would violate his constitutional privilege against self-incrimination. We answer in the negative.
In Franklin v. Franklin, 365 Mo. 442, 283 S.W. 2d 483 (1955), a divorce action, plaintiff-wife refused, on the ground that the answers might tend to incriminate her, to answer interrogatories, as well as questions asked at the temporary alimony hearing, regarding the status of her previous marriage to another. The
Of course, plaintiff had the right to refuse to answer . . . if to answer would tend to incriminate her. But, may she, by virtue of that privilege, obtain . . . relief . . . which otherwise would be denied to her on refusal to answer pertinent written or oral interrogatories? We have not been cited to nor have we found any case authorizing her to do so.
. . . Although plaintiff may refuse to answer self-incriminating interrogatories, yet, when she does, her action must be judged in the same manner and by the same rules as though she had refused to answer any other pertinent written or oral interrogatories.
365 Mo. at 445-447, 283 S.W. 2d at 485-486.
We concur in that reasoning. Defendant has the right to refuse to answer the interrogatories and requests for admission on the ground that to answer may tend to incriminate him. Invocation of this constitutional privilege may legitimately serve as a shield, with potential to protect defendant from criminal responsibility which may ensue from the acts and omissions alleged. It is not an abuse of discretion, however, to refuse to allow that privilege to serve also as a sword, with potential to defeat civil actions which may likewise ensue from those acts and omissions.
Defendant cites and relies on Allred v. Graves, 261 N.C. 31, 134 S.E. 2d 186 (1964). We do not find that decision dispositive. It held that a defendant subject to punitive damages and execution against the person could claim the constitutional privilege against self-incrimination and decline to give testimony in an adverse examination pursuant to former G.S. 1-568.11 (repealed 1970). It did not hold, however, that the trial judge abuses his discretion by imposition of clearly authorized sanctions therefor. Defendant also cites the decision of this court in Lowder v. Mills, Inc., 45 N.C. App. 348, 263 S.E. 2d 624 (1980). The North Carolina Supreme Court has reversed that decision, holding that refusal by defendant there to produce tax returns pursuant to court order was not protected by the privilege against self-incrimination. Lowder v. Mills, Inc., 301 N.C. 561, 273 S.E. 2d 247 (1981).
Affirmed.
