#### * SMITH v. WOODING.

(Filed 28 November, 1917.)

Discovery — Examination Before Trial — Aid in Pleading.

Tbe plaintiff in an action for injuries by alleged neglect of a physician may,, under Revisal 1905, sec. 866, providing that an examination of a *547defendant may be bad at any time before tbe trial, bave an examination of defendant to aid bim in filing bis complaint, where be alleges tbat he knows tbe facts generally and substantially, but tbat defendant has tbe precise knowledge necessary for proper proceedings.

Appeal from Webb, J. MeckleNbubg. Action by W. M. Smith, administrator of G. G. Habn, against Charles Edwin Wooding. From an order for examination of defendant before trial, he appeals. Affirmed.

This action was brought to recover damages for injuries to plaintiff’s intestate, alleged to have resulted from the negligence of the defendant in the use and application of the X-ray in treating the intestate, which so burned the patient as to cause his death. Plaintiff moved before the clerk of the court for an order requiring the defendant to be examined before a commissioner, in order that plaintiff may .obtain such knowledge and information as is necessary for him to have in order to prepare his complaint and make proper and sufficient allegations therein of his cause of action; such knowledge and information being in the possession of the defendant. An order was entered for such examination, and a commission issued to Fred M. Parrish, Esq., of Winston-Salem, N. C., to take the examination, and for that purpose that defendant appear before him at such time and place as he may appoint. The order was based upon an affidavit filed by tbe plaintiff, setting forth generally the nature of the action, and alleging that there are certain facts stated therein which are peculiarly within the knowledge of the defendant, and which are necessary to be known by the plaintiff in order that he may frame his complaint, and that he cannot obtain the facts from any other source. The defendant excepted to the order of the’ clerk, and appealed to the Superior Court. The judge dismissed the appeal, the defendant then appealed to this- Court, and assigned these errors:

“1. That the court erred in holding that the statute was sufficient to require the examination of the defendant for the purpose of obtaining information upon which to file the complaint and in dismissing the appeal of defendant from the order of the clerk.

“2. In dismissing the appeal, for that the affidavit shows on its face that plaintiff had information sufficient to file his complaint.”

F. M. ShannonhouseW. S. Beam and, Manly, Hendren & Womble for appellant.

E. T. Gansler and T. A. Adams for appellee.

*

Omitted by inadvertence from former Report.

WaxKee, J.,

after stating the facts as above: The first assignment of error, we suppose, is intended to raise the question whether a party to an action as, for instance, the defendant in this case, may be examined *548under tbe statute (Rev., secs. 864, 873) for tbe purpose of enabling tbe other party to file bis pleading, or whether tbe provision of tbe statute is confined in its operation to evidence merely to be used or not at tbe trial, and to be taken after tbe pleadings are filed, or at least after tbe complaint has been filed, showing what is tbe cause of action. Section 866 of tbe Revisal provide^ that tbe examination “may be bad at any; time before tbe trial,” and this court has held that these words, construed in connection with what precedes and follows them, authorize an examination of a party for tbe purpose of aiding him in filing bis complaint. We refer to Holt v. Warehouse Co., 116 N. C., 486, where tbe court discusses tbe question quite at length. Tbe defendants in that case, and tbe parties designated for tbe examination, raised tbe point that it would require of them disclosures as to tbe act of fraud charged in tbe affidavit of tbe plaintiff, but tbe Court rejected this objection and said:

> “Very cogent reasons must be shown this Court before it will conclude that such a right does not belong to tbe plaintiff. Tbe plaintiff has commenced a civil action in tbe Superior Court of Alamance against tbe defendant for tbe purpose of setting aside an alleged pretended transfer by tbe defendant corporation. '. . .. To enable him to draw bis complaint with greater certainty, tbe plaintiff desires to examine Neil Ellington, E. T. Garset, and J. W. Lindau, stockholders and directors of tbe company, under sections 580 and 581 of Tbe Code. He has as much right to examine them before tbe trial as at the trial, and they are subject to tbe same rules of examination as prevail in tbe examination of witnesses on tbe trial of actions before tbe courts, and they- are compelled to answer all pertinent and material questions put to them •except such as tbe Constitution and laws relieve them from answering. We know of no such exemption, except a man may not be compelled to give evidence against himself, which is found in Art. I, sec. 2, of the Constitution, which section, by judicial construction, has been extended to witnesses in civil actions. Fertilizer Co. v. Taylor, 112 N. C., 141. It makes no difference whether tbe answer will result in pecuniary injury to tbe witnesses or not; they must answer tbe questions as they would be required to do before tbe courts.”

Tbe Court, therefore, affirmed tbe orders for tbe ’examination made by Judge' Green, upon writs of certiorari, and also held that they were not appealable, citing for this ruling Helms v. Green, 105 N. C., 251 Am. St., 893; Vann v. Lawrence, 111 N. C., 32, and Fertilizer Co. v. Taylor, 112 N. C., 141; to which we add Pender v. Mallett, 122 N. C., 164, and S. c., 123 N. C., 60. In tbe last case, Pender v. Mallett, 123 N. C., 60, tbe Court said that:

> “Under Code, sec. 581, tbe defendant may be examined before plead*549ings filed to procure information in framing tbe complaint, as was tbe case in Holt v. Warehouse Co., 116 N. C., 480, where it is field that an appeal from such order for an examination is premature and will be dismissed or tbe defendant may be examined, after tbe answer is filed, to procure evidence in tbe cause,” citing Helms v. Green, supra, and Vann v. Lawrence, supra.

In Bailey v. Matthews, 156 N. C., 81, and Fields v. Coleman, 160 N. C., 11, tbe applications for tbe examinations were denied, and tbis Court affirmed tbe judgments upon other grounds, and tbe question as to tbe right to examine before the pleading is filed, for tbe purpose of aiding in preparing it, was not directly presented. We find that in Blossom v. Ludington, 32 Wis., 212, tbe Court, when construing a statute, substantially if not literally tbe same as ours, has held that tbe examination may be ordered before tbe pleading is filed. Tbe Court then said:

> “Tbe practice in regard to tbe examination of a party in a case like tbe one before us does not seem to be regulated by statute nor by any general rule of Court. It is enacted that no action to obtain discovery under oath in aid of tbe prosecution or defense of another action shall be allowed, but that a party to an action may be examined as a witness at tbe instance of tbe adverse party, or of any one of several adverse parties, and for that purpose may be compelled to give testimony in tbe action in tbe same manner and subject to tbe same rules of examination as any other witness. Sec. 54, ch. 137, R. S. Tbis provision was obviously adopted for tbe purpose of abolishing tbe bill of discovery and to provide a substitute therefor. By section 55 it is enacted that tbe examination provided for in tbe previous section may be bad, either on tbe trial of tbe action or at any time before trial, at tbe option of tbe party claiming it, before a judge of tbe court, or county judge, on a previous notice to tbe party to be examined, and any other adverse party, of at least five days, unless for-good cause shown tbe judge order otherwise. ... In tbis case tbe order for tbe examination was made upon tbe affidavit and complaint, and was designed to aid tbe plaintiff in determining whether any amendment to tbe complaint was necessary.”

Tbe court held that tbe examination should proceed so that plaintiff might acquire information necessary to amend bis complaint, but that tbe right to examine was not an absolute and unrestricted one, and then said, if it were so:

> “It is plain tbis statute may become tbe means of tbe greatest abuse and oppression. For an unscrupulous party has but to commence bis action and then insist upon tbe examination of tbe adverse party for tbe purpose of discovery, and compel tbe disclosure of matters wholly *550impertinent to bis case, and in which he has no interest, merely to gratify his malice or curiosity. And so much injustice might be done by such an unrestricted, roving examination of a party that we have earnestly endeavored to so interpret the statute as to secure the object of its enactment and at the same time give the court in which the action is pending some power to restrict the examination within proper limits.”

It was said in Simmons v. Vanderbilt, 59 How. Prac. (N. Y.), 411, that:

> “When a proper case has been made for it, a party has an undoubted right to examine his adversary to enable him to prepare his pleadings.”

Referring to the form and substance of the affidavit upon which the application was based, it further said:

> “The plaintiff’s affidavit is entirely defective. It states no fact whatever except that the defendant admitted 'the receipt of the money sued for.’ The relations between the parties are undisclosed. The plaintiff gives us no insight into his real position; no clue to the averment that the moneys were received ‘for his use.’ Something should at least have transpired to justify the bringing of the suit and the framing of a general averment. So far the court should have been taken into the plaintiff’s confidence. As it is, this affidavit is entirely blind. It seems studiously to avoid a frank disclosure of what induced the plaintiff to proceed. The order was therefore very properly vacated. It would be intolerable were parties' to be subjected to inquisitorial examinations upon such papers.”

We refer to these cases merely to show the clear and decided trend of judicial opinion in regard to the nature of this kind of proceeding, and not because they are directly applicable to this case, for they are not in all respects. Here the plaintiff has alleged sufficiently that while he has general information of the matter, it is not specific enough for a full and accurate preparation of his complaint, and that the facts essential for this purpose are within the knowledge of the defendant alone. The application appears to be perfectly fair and bona fide, and not made for the purpose of vexing or harassing the defendant, or from any ulterior motive, or from any other motive than that of protecting his rights. There is reason why he has no knowledge or information of the facts which is that the person who was treated at the defendant’s hospital, or who was under his care as a surgeon, has since died and his evidence, therefore, is not available. The case is more like that of Howe v. Learey, 62 Hun., 241; 16 N. Y. Supp., 736, where it was said by the Court:

> “The rigid rule, that if a party do not actually know the facts which make the defense, no order to examine can be granted, would render the section of the case in question of little practical use. The section *551should have a broader scope. Where facts and circumstances are shown which justify an examination of a party so that a pleading may be framed for the trial of the issue, the order should be granted.”

See, also, Frothinghan v. R. R., 9 Civ. Proc. (N. Y.), 304; Farmer v. Nat. L. Assn., 13 Hun, 523; 26 N. Y. Supp., 126.

As the court dismissed the appeal from the clerk, we. merely affirm that order with the same result, of course, here

Affirmed.