Lockwood v. McCaskill, 234

• Decision Date: 06 May 1964
• Docket Number: No. 234,234
• Citation: 261 N.C. 754,136 S.E.2d 67
• Parties: Clifford J. LOCKWOOD v. Earl McCASKILL, and Charles Albert Macon d/b/a C. A. M. Machine Company.
• Court: North Carolina Supreme Court

Page 67

136 S.E.2d 67

261 N.C. 754

Clifford J. LOCKWOOD v. Earl McCASKILL, and Charles Albert Macon d/b/a C. A. M.

Machine Company.

No. 234

Supreme Court of North Carolina.

May 6, 1964

H. Parks Helms, Charlotte, for plaintiff appellant.

Kennedy, Covington, Lobdell & Hickman and Charles V. Tompkins, Jr., Charlotte, for defendant appellee Macon.

BOBBITT, Justice.

Referring to the deposition statute, G.S. § 8-71, this Court in Yow v. Pittman, 241 N.C. 69, 84 S.E.2d 297, in opinion by Higgins, J., said: 'This statute does not contemplate the taking of deposition of a person disqualified to give evidence in the case.'

As in Yow, the deposition statute must be considered in connection with G.S. § 8-53, which provides: 'Communications between physician and patient.--No person, duly authorized to practice physic or surgery, shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon: Provided, that the presiding judge of a superior court may compel such disclosure, if in his opinion the same is necessary to a proper administration of justice.'

In Yow, a similar motion was heard by Judge Rudisill, the Resident Judge, in Chambers. His denial of the motion as a matter of law was affirmed by this Court. The ground of decision was stated as follows: 'While Judge Rudisill was a Judge of the Superior Court, he was not at the time the presiding judge of a superior court in term. He had no authority to enter the requested order in Chambers.'

While Judge McConnell was the Presiding Judge at the October 21, 1963, Regular Schedule 'C' Session of Mecklenburg Superior Court, this case was not before him for trial. It was brought before him on October 24, 1963, solely for hearing on said motion of October 17, 1963.

Questions relating to the privilege created by G.S. § 8-53 have been discussed and decided often by this Court. Capps v. Lynch, 253 N.C. 18, 116 S.E.2d 137, and cases cited; Sims v. Charlotte Liberty Mutual Insurance Co., 257 N.C. 32, 125 S.E.2d 326, and cases cited. In all of our decisions except Yow v. Pittman, supra, the questions presented related to rulings made during the progress of the trial by the presiding superior court judge.

'It is the accepted construction of this statute (G.S. § 8-53) that it extends, not only to information orally communicated by the patient, but to knowledge obtained by the physician or surgeon through his own observation or examination while attending the patient in a professional capacity, and which was necessary to enable him to prescribe.' Smith v. John L. Roper Lumber Co., 147 N.C. 62, 64, 60 S.E. 717, 718; Sims v. Charlotte Liberty Mutual Insurance Co., supra, 257 N.C. p. 37, 125 S.E.2d 326, and cases cited.

Undoubtedly, Judge McConnell's order purports to compel Dr. Wright to testify concerning matters which otherwise would be privileged. Whether Dr. Wright's deposition is offered in evidence is immaterial. If and when Dr. Wright is required to testify concerning privileged matters at a deposition hearing, eo instante the statutory privilege is destroyed. This fact precludes dismissal of the appeal as fragmentary and premature. Cf. Waldron Buick Co. v. General Motors Corp., 251 N.C. 201, 110 S.E.2d 870.

In the construction of G.S. § 8-53, our chief concern is to ascertain the legislative intent. As stated by Stacy, C. J., in Branch Banking & Trust Co. v. Hood, Comr. of Banks, 206 N.C. 268, 270, 173 S.E. 601, 602: 'The heart of a statute is the intention of the lawmaking body.' In performing our judicial task, 'we must avoid a construction which will operate to defeat or impair the object of the statute, if we can reasonable do so without violence to the legislative language.' Ballard v. City of Charlotte, 235 N.C. 484, 487, 70 S.E.2d 575, 577.

Appellee contends the statute, G.S. § 8-53, is in derogation of the common law and should be strictly construed. However, we are not considering what matters are privileged or questions relating to waiver of the statutory privilege. Rather, our question is what superior court judge, upon appropriate findings of fact, may compel disclosure.

The following statement is pertinent: 'A proviso should be construed together with the enacting clause or body of the act, with a view to giving effect to each and to carrying out the intention of the legislature as manifested in the entire act and acts in pari materia. A strict but reasonable construction is to be given to the proviso so as to take out of the enacting clause only those cases which are fairly within the terms of the proviso.' 82 C.J.S. Statutes § 381b (1). Here, construction of the proviso is necessary to decision.

The sole purpose of the 1885 statute (Public Laws of 1885, Chapter 159), now codified as G.S. § 8-53, was to create a privileged relationship between physician and patient. In view of this primary purpose, we think it clear the proviso was intended to refer to exceptional rather than ordinary factual situations.

Under a literal interpretation, the words of the proviso, 'the presiding judge of a superior court,' might include the superior court judge currently presiding in the judicial district. As indicated above, w...