Flanner v. Saint Joseph Home for the Blind Sisters

Barnhill, J. Plaintiff, by ber motion, seeks information as to whether defendant (1) is protected by liability insurance, and (2) is a commercial rather than an eleemosynary corporation. She asserts that this information is necessary to enable ber to prepare ber complaint. By its appeal tbe defendant challenges tbe right of plaintiff to examine its books and policies for tbe purpose indicated. Hence, tbe validity of tbe order of examination is tbe one question presented for decision. Plaintiff concedes she has knowledge of tbe occurrence, and tbe attend- ' ant facts and circumstances, out of which ber injuries arose. That tbe defendant bad tbe forethought to protect itself against such liability as tbe law imposes for such injuries does not serve to enlarge or extend that liability. Borders v. Cline, 212 N. C., 472, 193 S. E., 826; Herndon v. Massey, 217 N. C., 610, 8 S. E. (2d), 914, and cases cited. Hence tbe existence of liability insurance is not a fact to be pleaded. Revis v. Asheville, 207 N. C., 237, 176 S. E., 738; Duke v. Children’s Com., 214 N. C., 570, 199 S. E., 918; Herndon v. Massey, supra. Likewise, tbe financial operations of defendant corporation are not relevant or material to plaintiff’s cause of action. She insists, however, that defendant intends to plead in defense that it is an eleemosynary corporation and tbe information desired is to forestall this defense. But that issue as yet has not been raised, and is a barrier she need not attempt to hurdle until it is first erected by a plea duly made. In any event, she may not do so at this stage of tbe proceeding in the manner here attempted. G. S., 8-89, provides a method for obtaining inspection of books, papers, and documents “containing evidence relating to tbe merits of tbe action . . .” But procedure thereunder, for tbe purpose of obtaining evidence, is permissible only after issue joined, and it must be made to appear that tbe information desired relates to tbe merits of tbe controversy in an action pending and at issue. McGibboney v. Mills, 35 N. C., 163; Branson v. Fentress, 35 N. C., 165; Sheek v. Sain, 127 N. C., 266; Chesson v. Bank, 190 N. C., 187, 129 S. E., 413; Ogburn v. Sterchi Brothers Stores, Inc., 218 N. C., 507, 11 S. E. (2d), 460. Tbe affidavit supporting an order for inspection of records or documents in the possession of an adversary party for tbe purpose of obtain *345 ing evidence must designate tbe records and documents sought to be inspected and show that they are material to tbe inquiry. Chesson v. Bank, supra; Dunlap v. Guaranty Co., 202 N. C., 651, 163 S. E., 750; Gudger v. Robinson Brothers Contractors, Inc., 219 N. C., 251, 13 S. E. (2d), 414. So tben, it is apparent tbat plaintiff’s motion and supporting affidavit fail to disclose facts sufficient to sustain tbe order entered, without regard to whether it is to obtain information to enable plaintiff to draft her complaint, as upon its face it purports to be, or is to obtain evidence relating to the merits of the controversy. Bailey v. Matthews, 156 N. C., 78, 72 S. E., 92; Fields v. Coleman, 160 N. C., 11, 75 S. E., 1005; Evans v. R. R., 167 N. C., 415, 83 S. E., 617; Chesson v. Bank, supra; Gudger v. Robinson Brothers Contractors, Inc., supra; Mica Co. v. Express Co., 182 N. C., 669, 109 S. E., 853; Patterson v. R. R., 219 N. C., 23, 12 S. E. (2d), 652; Dunlap v. Guaranty Co., supra; Washington v. Bus, Inc., 219 N. C., 856, 15 S. E. (2d), 372; Fox v. Yarborough, 225 N. C., 606. Perhaps it is not amiss to add that plaintiff may not proceed under this section of our statutes to examine the defendant’s records and documents for the purpose of obtaining information to form the basis of an action against a third party insurance company. For the reasons stated the judgment below is Reversed.