CLIFFORD J. LOCKWOOD v. EARL McCASKILL; and CHARLES ALBERT MACON d/b/a C. A. M. MACHINE COMPANY, 261 N.C. 754

Bobbitt, J. 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. 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. Lumber Co., 147 N.C. 62, 64, 60 S.E. 717; Sims v. Insurance Co., supra, p. 37, 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. 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 Trust Co. v. Hood, Comr. of Banks, 206 N.C. 268, 270, 173 S.E. 601; “The heart of a statute is the intention of the law-making 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 reasonably do so without violence to the legislative language.” Ballard v. Charlotte, 235 N.C. 484, 487, 70 S.E. 2d 575. 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 § 381(b)(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, we have held they refer solely to a superior court judge presiding “in term.” Too, the words, “the presiding judge of a superior court,” might include any superior court judge who happens to be presiding over any term in any county in North Carolina. We think it obvious they refer solely to a judge presiding at a term of superior court in the county in which the action is pending.

In short, the words, “the presiding judge of a superior court,” must be construed to effectuate rather than to defeat the dominant purpose of the statute. In our view, it was the intention of the General Assembly that the presiding judge authorized to compel disclosure by a physician on the ground such disclosure is necessary to the proper administration of justice is the judge presiding on the occasion when the physician is called upon to testify, namely, the trial judge.

All relevant circumstances, including the nature and character of evidence offered by or in behalf of the injured person, are available for consideration by the trial judge. Moreover, the trial judge may ascertain from the physician the nature of the evidence involved and may determine what part, if any, should be disclosed as necessary to the proper administration of justice. Obviously, the proper administration of justice might require disclosure as to certain but not as to all matters under the privilege.

In short, we think it was intended that disclosure should be compelled only when the examination of the physician was conducted under the supervision of the trial judge. G.S. 8-71 provides that a party may take “the depositions of persons whose evidence he may desire to use.” (Our italics).

Appellee’s contention, as stated in his brief, is that disclosure “is necessary to enable the defendant to accurately evaluate the case against him and to prepare his defense.” In our view, the proviso in G.S. 8-53 does not authorize a superior court judge, based on the circumstance that he is then presiding in the county in which the action is pending, to strike down the statutory privilege in respect of any and all matters concerning which the physician might be asked at a deposition hearing.

Doubtless, in practically all personal injury actions the defendant would deem it advisable, if permitted to do so, to examine before a commissioner or notary public in advance of trial the physician (

s) of the injured party to “evaluate the case” and “to prepare his defense.” Obviously, if this course were permitted, the privilege created by the statute would be substantially nullified. This practice, if considered desirable, should be accomplished by- amendment or repeal of the statute. Although the question before us was not decided or drawn into focus, expressions in opinions of this Court would seem to indicate an understanding that the words, “the presiding judge of a superior court,” refer to the superior court judge who presides at the trial. Creech v.

Woodmen of the World, 211 N.C. 658, 661, 191 S.E. 840; Sims v. Insurance Co., supra, pp. 38-39. With reference to examinations prior to trial by court-appointed physicians to ascertain the nature and extent of alleged injuries, see Helton v. Stevens Co., 254 N.C. 321, 118 S.E. 2d 791. In view of the foregoing, we need not consider whether the motion itself and the record proper constitute a sufficient basis for a finding “that said deposition is necessary to a proper administration of justice.” For the reasons stated, the order of the court below is reversed. Reversed.