Gunn v. Hess

• Decision Date: 03 May 1988
• Docket Number: No. 8715SC1196,8715SC1196
• Citation: 90 N.C.App. 131,367 S.E.2d 399
• Court: North Carolina Court of Appeals
• Parties: Debra Anne GUNN, Plaintiff, v. Lora L. HESS, Defendant.

Page 399

367 S.E.2d 399

90 N.C.App. 131

Debra Anne GUNN, Plaintiff, v. Lora L. HESS, Defendant.

No. 8715SC1196.

Court of Appeals of North Carolina.

May 3, 1988.

Latham, Wood, Eagles & Hawkins by William A. Eagles, Graham, for plaintiff-appellee.

Vernon, Vernon, Wooten, Brown & Andrews, P.A. by Wiley P. Wooten and T Randall Sandifer, Burlington, for defendant-appellant.

JOHNSON, Judge.

Plaintiff instituted this action on 17 April 1987 by the filing of complaint and issuance of summons. Plaintiff alleges a cause of action for alienation of affections and criminal conversation with plaintiff's husband. Plaintiff sought both compensatory and punitive damages.

On 13 May 1987, defendant filed a verified answer to the complaint generally denying the allegations.

On 9 June 1987, plaintiff served defendant with twenty-one interrogatories. Among other things, the interrogatories contained questions addressing possible sexual activity between defendant and plaintiff's husband.

On 24 June 1987, defendant filed notice of objection to interrogatories: 1, 6-15 and 19. Defendant objected to interrogatories 1, 10 and 11 on the ground of relevancy; and objected to the others on the ground that defendant's answers to them "may tend to incriminate the defendant" in violation of her rights under the Fifth Amendment to the United States Constitution.

On 6 July 1987, defendant served her answers to plaintiff's interrogatories, partially answering some and objecting to others. On 8 October 1987, plaintiff filed her motion to compel defendant to answer interrogatories.

On 17 November 1987, the trial court entered an order compelling defendant to answer interrogatories 1, 9, 10, 14 and 15. From this order, defendant appeals.

Defendant assigns as error the overruling of her objections to, and the court's requiring her to answer, plaintiff's interrogatories 14 and 15.

Interrogatories 14 and 15 read as follows respectively:

State the date and location of the first instance of sexual intercourse between you and Robert J. Gunn, Jr.

State the date and location of each instance of sexual intercourse between you and Robert J. Gunn, Jr.

Defendant argues that answers to these questions could be incriminating to defendant. Plaintiff contends that by filing a verified answer defendant waived her right to assert the privilege against self-incrimination.

Constitutional guaranties against self-incrimination apply not only to criminal actions but also to civil proceedings "wherever the answer might tend to subject to criminal responsibility him who gives it." Johnston County Nat'l. Bank and Trust Co. v. Grainger, 42 N.C.App. 337, 339, 256 S.E.2d 500, 502, pet. for disc. rev. denied, 298 N.C. 304, 259 S.E.2d 300 (1979) ( quoting McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158, 161 (1924); Accord, Allred v. Graves, 261 N.C. 31, 134 S.E.2d 186 (1964).

It is unquestionable that the right against self-incrimination may be waived.

The waiver [of the privilege against self-incrimination] may be express or specific, that is, by word of mouth or by writing, or it may be by some act amounting to waiver; ...

Golding v. Taylor, 19 N.C.App. 245, 248, 198 S.E.2d 478, 480, cert. denied, 284 N.C. 121, 199 S.E.2d 659 (1973) (quoting 98 C.J.S., Witnesses, sec. 456 (1957)).

The sole question presented by this appeal is whether the defendant waived her right to claim the privilege against self-incrimination by verifying and filing her answer of general denial. Our research discloses no North Carolina decision which is on point. This appears to be a question of first impression for this jurisdiction. Therefore, we have looked to other jurisdictions to see if and how this specific issue has been resolved. We have found the following cases which sustain our view that there has been no waiver.

In Schermerhorn v. Contardi, 10 Wash.App. 736, 520 P.2d 188 (1974), an action for alienation of affections and criminal conversation, the defendant, as in the case sub judice, filed a verified answer generally denying the allegations of the complaint. During pretrial discovery procedures, plaintiff requested the right to take defendant's deposition. At the deposition hearing, defendant refused to answer all questions regarding the relationship with plaintiff's wife on the ground that the answers may have tended to incriminate him. Subsequently, plaintiff made a motion to compel defendant to answer. Upon the hearing of plaintiff's motion to compel, the trial court held that defendant had waived his privilege against self-incrimination by filing an...