Helton v. JP Stevens Company

118 S.E.2d 791 (1961)

254 N.C. 321

Anderson Lewis HELTON v. J. P. STEVENS COMPANY, Inc., and John Marable.

No. 163.

Supreme Court of North Carolina.

March 22, 1961.

Dolley & Dubose, Gastonia, for petitioner-appellant.

Mullen, Holland & Cooke, Gastonia, for defendants-appellees.

HIGGINS, Justice.

As a general rule, judges of trial courts have inherent power in their discretion *792 to order physical examinations of the character here involved. The ends of justice, and the particular facts of each case, dictate the manner in which the court shall exercise the power. Flythe v. Eastern Carolina Coach Co., 195 N.C. 777, 143 S.E. 865; 27 C.J.S. Discovery §§ 37 and 38; 17 Am.Jur. Discovery and Inspection, Sec. 43. Under the facts as disclosed by the motion and the verified pleadings, the plaintiff's first assignment of error is not sustained. Brown v. Hutgler Brothers Co., 152 Md. 39, 136 A. 30, 51 A.L.R. 183; Dixie Greyhound Lines v. Matthews, 177 Miss. 103, 170 So. 686, 108 A.L.R. 142.

The plaintiff's second assignment presents a procedural question. To make the examination, the court, over plaintiff's objection, designated the particular specialist suggested by the defendants in their motion. It goes without saying the exclusive duty to make the selection rests with the court. Neither party should have advantage in the selection. "When the examination is compulsory, there is obvious propriety in the selection of the experts by the court rather than by one or both of the parties * * *. The court, in making the order * * * and in designating the experts to execute it, is serving the interest of neither the defendant nor the plaintiff, but the ends of justice." 17 Am.Jur., Discovery and Inspection, Sec. 45.

We are certain the learned trial judge did not intend to hold the scales unevenly between the parties when he selected the specialist requested by one and opposed by the other. It was the duty of the court to make the selection independently of the wishes of either. To the end that even appearances of favoritism may be removed, the order is modified and the cause is remanded for the court to select the specialist to execute its order for the examination. The defendants will pay the costs of this appeal.

Modified and affirmed.