Nance v. Gilmore Clinic, Inc.

Supreme Court of North Carolina

Nance v. Gilmore Clinic, Inc.

53 S.E.2d 531, 230 N.C. 534, 1949 N.C. LEXIS 368

CourtSupreme Court of North Carolina

DecidedJune 2, 1949

StatusPublished

Cited by2 cases

This text of 53 S.E.2d 531 (Nance v. Gilmore Clinic, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nance v. Gilmore Clinic, Inc., 53 S.E.2d 531, 230 N.C. 534, 1949 N.C. LEXIS 368 (N.C. 1949).

Pincite

Opinion

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.

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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.

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Bluebook (online)

53 S.E.2d 531, 230 N.C. 534, 1949 N.C. LEXIS 368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nance-v-gilmore-clinic-inc-nc-1949.

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