Shaw v. Williamson , 75 N.C. App. 604 ( 1985 )

331 S.E.2d 203 (1985)

Peggy Soles SHAW, Administratrix of the Estate of Joseph E. Soles, Sr.
v.
Eddie Malcolm WILLIAMSON.

No. 844SC203.

Court of Appeals of North Carolina.

July 2, 1985.

Ellis, Hooper, Warlick, Waters & Morgan by John Drew Warlick, Jacksonville, for plaintiff-appellee.

Moore, Ragsdale, Liggett, Ray & Foley by George R. Ragsdale and Nancy Dail Fountain, Raleigh, for defendant-appellant.

PHILLIPS, Judge.

Though this appeal is from an interlocutory order, it is nevertheless authorized under the provisions of G.S. 1-277 and G.S. 7A-27(d). Because the right against self-incrimination is a very substantial right, indeed, protected by both the United States and North Carolina Constitutions, and if some of the interrogatories are incriminating, as defendant contends, and he is nevertheless compelled to answer them now his constitutional right could be lost beyond recall and his appeal at the end of the trial would be of no value. Stone v. Martin, 56 N.C.App. 473, 289 S.E.2d 898, cert. denied, 306 N.C. 392, 294 S.E.2d 220 (1982).

Defendant cannot incriminate himself criminally by answering the interrogatories, however, because the record shows that, based on the same incident referred to in the complaint, he was charged with death by vehicle and driving while intoxicated, pled guilty, and has complied with the judgments entered on the convictions. But the constitutional protection against self-incrimination also extends to civil actions that subject one to arrest, imprisonment, or execution against the person. The case so holding that defendant most strongly relies on is Allred v. Graves, 261 N.C. 31, 134 S.E.2d 186 (1964). In that case plaintiff sought punitive damages of the defendant for a malicious assault and the Court held that defendant did not have to answer certain interrogatories deemed to be incriminating. The basis for the Court's holding, though, was that if a judgment for punitive damages was entered against defendant and was not satisfied by regular execution he would be subject to execution against the person pursuant to the provisions of G.S. 1-311. But the defendant in this case faces no such peril and in our opinion the order requiring defendant to answer the interrogatories was properly entered. In 1977, after Allred was decided, G.S. 1-311 was amended to limit execution against the persons of judgment debtors to instances where either the jury's verdict or the judge's findings of fact include a finding "that the defendant either (1) is about to flee the jurisdiction to avoid paying his creditors, (2) has concealed or diverted assets in fraud of his creditors, or (3) will do so unless immediately detained." But since there is no allegation in plaintiff's complaint that would support either of the required statutory findings for execution against the person, we see no basis for defendant's self-incrimination plea and he must answer the interrogatories, as the trial court ordered. Furthermore, the objected to interrogatories, in our opinion, have no incriminating propensity in any event. So far as we can tell from the record and the law relating to it, stating whether he had a cold on the night involved, where he was going, who employed him, and other such things called for by the interrogatories could not conceivably incriminate defendant. The Constitution protects against real dangers, not mere speculative possibilities. Zicarelli v. Investigation Commission, 406 U.S. 472, 92 S. Ct. 1670, 32 L. Ed. 2d 234 (1972).

Affirmed.

WHICHARD and JOHNSON, JJ., concur.