Gudger v. . Robinson Brothers Contractors, Inc.

BabNhill, J. C. S., 907, makes provision for the examination of a party to an action on behalf of his coplaintiff or codefendant “as to any matter in which he is not jointly interested or liable with such co-plaintiff or codefendant and as to which a separate and not joint verdict or judgment can be rendered.” The language of the statute does not include a party jointly interested or liable and against whom a joint verdict or judgment can be rendered. It excludes those who have any community of interest and for or against whom there may be a joint verdict and judgment. That the trial might also result in a several or individual verdict is not sufficient to bring a coplaintiff or codefendant within the terms of the statute. Thus, petitioner, appellant, is not permitted to proceed under this section. It and its codefendant are sued as joint tortfeasors. They are jointly interested in the defense of the action (though, in some respects, their defenses may be antagonistic); a joint verdict and judgment can and, if plaintiff prevails, must be rendered unless one of the defendants is completely exculpated. Petitioner and its codefendant are not adverse parties within the meaning of O. S., 900, and O. S., 901. Even so, the petition is not sufficient to support an order for examination. It is not in the form of an affidavit and does not aver that the desired information is not available to the applicant and that the examination is material. Bell v. Bank, 196 N. C., 233, 145 S. E., 241. While it asserts “that it is necessary, in order for this defendant to properly prepare his case for trial,” it *254 does not aver tbe facts upon wbicb tbe allegation of necessity is based. Evans v. R. R., 167 N. C., 415, 83 S. E., 617; Mica v. Express Co., 182 N. C., 669, 109 S. E., 853; Bell v. Bank, supra. On tbe contrary, tbe respondent alleges tbe specific facts upon wbicb it asserts that petitioner is solely liable. Tbe allegations, while made upon information and belief, are to tbe effect that agents and employees of tbe petitioner, in tbe work of installation of tbe plate glass, removed, loosened or interfered with tbe braces attached to said building and to tbe fence and that tbe removal, loosening or interference with tbe braces, and tbe failure to properly and securely replace tbe same, was tbe sole proximate cause of tbe injury. Thus, it appears that tbe desired information is available lo tbe petitioner through tbe medium of its own employees, to whom it may resort. In its final analysis petitioner’s motion appears to be nothing more than an effort to ascertain tbe names of tbe witnesses through whose testimony respondent intends to prove tbe facts alleged. This is not tbe purpose or objective of tbe statute. Tbe petitioner may examine such witnesses as it desires at tbe trial. It fails to point out wherein it has been prejudiced by tbe denial of this right before trial. This Court will not reverse an order entered by tbe court below for error and no more. It must appear that tbe error is prejudicial. Hicks v. Nivens, 210 N. C., 44, 185 S. E., 469; Butner v. Whitlow, 201 N. C., 749, 161 S. E., 389; Thigpen v. Trust Co., 203 N. C., 291, 165 S. E., 720. Tbe judgment below is Affirmed.