Aldridge v. Hasty

• Decision Date: 04 June 1954
• Docket Number: No. 597,597
• Citation: 240 N.C. 353,82 S.E.2d 331
• Parties: ALDRIDGE, v. HASTY et al.
• Court: North Carolina Supreme Court

Page 331

82 S.E.2d 331

240 N.C. 353

ALDRIDGE, v. HASTY et al.

No. 597

Supreme Court of North Carolina.

June 4, 1954

R. L. Smith & Son, Albemarle, for defendant appellant Burns.

Brown & Mauney, Albemarle, for plaintiff appellee.

BARNHILL, Chief Justice.

After the pleadings were filed, the plaintiff sought and obtained leave to examine both defendants prior to trial as provided by General Statutes ch. 1, art. 46. The defendant Burns, at the time the examination was had and in the trial below, moved to suppress the examination of Hasty for the reason that 'the application therefor sets out no facts specifying the information sought or the purpose therefor', and 'that the Clerk making the order for the examination found no such facts. ' The motion was overruled, and the plaintiff offered said examination in evidence as against both defendants.

Appeal of Burns.

This defendant excepted to the denial of his motion to suppress the examination of Hasty and to the admission of the same in evidence as against him. These exceptions are made the bases of exceptive assignments of error and are duly brought forward and discussed in this appellant's brief. They present for decision the only questions of sufficient merit to require discussion.

In 1951 the General Assembly, by the adoption of ch. 760, S.L. 1951, now General Statutes ch. 1, art. 46, repealed our old statute which provided for the examination of adverse parties and substituted in lieu thereof a new statute which in many respects is entirely different in substance and in the procedure provided. Under the terms of the Act a litigant may examine any other party to the action: '(1) For the purpose of obtaining information necessary to prepare a pleading or an amendment to a pleading, or (2) For the purpose of obtaining evidence to be used at the trial, or at any hearing incident to the trial, or (3) For both purposes. ' G.S. § 1-568.3.

We are interested here only in those provisions of the Act which relate to the examination of a party after the pleadings have been filed.

After the 'examining party' and 'the person to be examined' have both filed their pleadings, 'an examination is a matter of right, and may be had as provided by G.S. 1-568.11.' The examining party must apply to the clerk or judge for an order for the examination and his 'application must be in the form of, or supported by, an affidavit showing: (1) That the action has been commenced; (2) That the applicant has filed complaint, petition or answer; (3) That the applicant desires to examine a designated person who has filed a petition, complaint or answer or on whose behalf a petition, complaint or answer has been filed; (4) That the examination should be held at a place designated in the affidavit, together with facts showing the reasons therefor. ' G.S. § 1-568.11.

'If the judge or clerk finds that the facts are as set out in the affidavit, he shall make an order: (1) Appointing a commissioner to hold the examination; (2) Fixing the time and place of the examination, subject to the provisions of G.S. § 1-568.5; and (3) Directing the person to be examined to appear before the commissioner at such time and place for examination. ' G.S. § 1-568.11(c). G.S. § 1-568.5, insofar as it is pertinent here, provides that the time and place of the examination may be changed by agreement of the parties or 'for good cause shown,' by the order of the clerk.

The application filed by the plaintiff is verified and contains all the information thus required by the statute other than the 'facts showing the reasons' for requesting that the examination he held at the courthouse in Stanly County as required by G.S. § 1-568.11(b) (4), that is, it alleges no facts in support of that request other than the allegation that Burns and Hasty are residents of Stanly County.

We are not quite sure we comprehend the underlying purpose of the provision contained in G.S. § 1-568.11(b) (4). If the Legislature intended to require the applicant to state the reasons why he desires the examination or the information he seeks to obtain, it failed to use language which gives expression to that intent. After the pleadings are filed, the examination is available to the applicant as a matter of right. And there could be no legitimate reason therefor---after the parties have pleaded---other than to obtain evidence to be used at the trial. Furthermore, the language relied on is a part of subsection (b) (4). It relates exclusively to, and is a part of the 'showing' to be made by the petitioner as required by that particular subsection. The 'reasons' to be alleged are the reasons for naming the place for the hearing designated in the petition.

It is alleged in the petition that the parties to be examined are residents of Stanly County. The courthouse is the place provided for judicial hearings. These are, we think, sufficient reasons for requesting that the examination be had at the courthouse of the county of defendants' residence. And, in any event, we hold that, under the circumstances of this case, the failure to state other and additional reasons---if indeed such exist---does not constitute a fatal defect in the application.

Notice of the examination was served on both Burns and Hasty as required by G.S. § 1-568.14. Both appeared in person and by counsel and participated in the examination. Hence the deposition was admissible in evidence as against Burns, G.S. § 1-568.24, subject to his right to except to the competency, relevancy, or materiality of the testimony as provided by the statute, G.S. §§ 1-568.23, 1-568.24. This right on his part was fully protected by the court below.

Even so, he contends all the evidence tends to show that at the time of the collision he had passed some distance beyond plaintiff who was standing outside the bounds of the highway, and that therefore he owed no duty to plaintiff the breach of which would give rise to liability on his part for the injuries inflicted by the Hasty automobile; and that, even if he violated a traffic regulation, neither the injury suffered by plaintiff nor any such like injury was reasonably foreseeable as a result thereof.

These contentions present squarely for decision three questions: (1) Did this defendant breach any legal duty he owed the plaintiff; (2) where the negligence relied on by plaintiff is the violation of a criminal statute, is forseeability a condition of liability, and, if so, (3) does the evidence offered warrant and support the inference that defendant, under the facts here disclosed, could and should have foreseen that the injury suffered by plaintiff or some like injury was likely to result?

Our motor traffic regulations are not intended merely to protect those who are using the highways. They are designed to protect the life, limb, and property of any and every person on or about the highway who may suffer injury to his person or damage to his property as a natural and proximate result of the violation thereof. Therefore, this defendant owed to plaintiff and all other persons similarly situated the duty to observe and obey the positive mandates of our motor vehicle traffic regulations.

Strictly speaking, a violation of a criminal statute constitutes a positive, affirmative tort which perhaps should never have been put in the category of negligence. It would seem that this view prevails in some jurisdictions where it is held that foreseeability is not a condition of liability. In these jurisdictions the rule that the tort feasor is liable for any consequence that may flow from his unlawful act as the natural and probable (or proximate) result thereof, whether he could foresee or anticipate it or not, prevails. It is presumed that he intended whatever resulted from his unlawful act. Cooley on Torts, § 50.

In the past this rule has received the sanction of this Court by direct decision as well as by way of obiter dicta. Drum v. Miller, 135 N.C. 204, 47 S.E. 421, 65 L.R.A. 890; Starnes v. Albion Manufacturing Company, 147 N.C. 556, 61 S.E. 525, 17 L.R.A.,N.S., 602; Leathers v. Blackwell Durham Tobacco Company, 144 N.C. 330, 57 S.E. 11, 9 L.R.A.,N.S., 349; McGowan v. Ivanhoe Manufacturing Company, 167 N.C. 192, 82 S.E. 1028; Hodges v. Virginia-Carolina R. Co., 179 N.C. 566, 103 S.E. 145, 10 A.L.R. 1452; Watson v. Warsaw Construction Company, 197 N.C. 586, 150 S.E. 20.

But the trend of our decisions since the advent of the automobile has been to treat the breach of a criminal law as an act of negligence per se unless otherwise provided in the statute. Godfrey v. Queen City Coach Company, 201 N.C. 264, 159 S.E. 412; James v. Carolina Coach Company, 207 N.C. 742, 178 S.E. 607; Whitaker v. Carpenter Motor Car Company, 197 N.C. 83, 147 S.E. 729; and Albritton v. Hill, 190 N.C. 429, 130 S.E. 5 (exceeding speed limit); King v. Pope, 202 N.C. 554, 163 S.E. 447, and Norfleet v. Hall, 204 N.C. 573, 169 S.E. 143 (reckless driving and speeding); Hoke v. Atlantic Greyhound Corporation, 226 N.C. 692, 40 S.E. 2d 345, and Gillis v. Transit Corporation, 193 N.C. 346, 137 S.E. 153 (failure to keep to the right); Burke v. Carolina Coach Company, 198 N.C. 8, 150 S.E. 636 (parking on highway); Holland v. Strader, 216 N.C. 436, 5 S.E.2d 311 (failure to give hand signal).

'All of the decisions of this state since Ledbetter v. English, 166 N.C. 125, 81 S.E. 1066, concur in the view that the violation of an ordinance or of a statute designed for the protection of life and limb is negligence per se. Notwithstanding, the same decisions do not permit recovery for the mere violation of the statute, unless there was a causal relation between the violation and the injury. ' Ham v. Greensboro Ice and Fuel Company, 204 N.C. 614, 169 S.E. 180, 182; Holland v. Strader, supra.

'According to the uniform decisions of this Court, the violation of a statute imposing a rule of conduct in the operation of a motor vehicle and enacted in the interest of safety has been held to...