Joyner v. Wilson Memorial Hospital, Inc. , 38 N.C. App. 720 ( 1978 )

248 S.E.2d 881 (1978) 38 N.C. App. 720

Clyde JOYNER, Jr.
v.
WILSON MEMORIAL HOSPITAL, INC., and Margaret A. Goodwin, Executrix of the Estate of Cleon W. Goodwin.

No. 787SC48.

Court of Appeals of North Carolina.

November 21, 1978.

Farris, Thomas & Farris by Thomas J. Farris, Wilson, for plaintiff-appellant.

Smith, Anderson, Blount & Mitchell by C. Ernest Simons, Jr., Raleigh, for defendant-appellee, Wilson Memorial Hospital, Inc.

Lucas, Rand, Rose, Meyer, Jones & Orcutt, by Z. Hardy Rose, Wilson, for defendant-appellee, Margaret A. Goodwin.

Amicus curiae brief submitted by Harris & Bumgardner by Tim L. Harris, Gastonia, of counsel, for North Carolina Academy of Trial Lawyers.

Amicus curiae brief submitted by Harris, Poe, Cheshire & Leager by W. C. Harris, Jr., Raleigh, for the North Carolina Hospital Ass'n.

CLARK, Judge.

Plaintiff first contends that the court erred in dismissing the complaint as to the Executrix Margaret A. Goodwin on the basis of improper service of process. We agree. Under North Carolina law, the filing of a final account does not discharge an executor or administrator. "The general rule is that, after an executor or administrator is appointed and qualified as such, his authority to represent the estate continues until the estate is fully settled . . . or unless the letters be revoked in a manner provided by law." Edwards v. McLawhorn, 218 N.C. 543, 546, 11 S.E.2d 562, 564 (1940). "By the weight of authority the removal or discharge of an executor or administrator is not effected by the approval of his final account without a formal order of discharge." Edwards, supra, 218 N.C. at 547, 11 S.E.2d at 565. Best v. Best, 161 N.C. 513, 77 S.E. 762 (1913). Annot., 8 A.L.R. 175 at 185 (1920). Although the executrix, Margaret A. Goodwin, had filed her final account, there were no formal orders of discharge entered by the clerk of court. Therefore, Margaret A. Goodwin was still empowered to act as executrix on the day the summons and complaint were served.

We find that the service of process was proper; the court's order dismissing the plaintiff's cause of action against the defendant executrix is reversed.

Plaintiff's second contention is that the court erred in granting defendant hospital's motion for summary judgment when the defendant had not yet answered the plaintiff's interrogatories and not filed any objection to the questions in the interrogatories. "[A]lthough unanswered interrogatories will not, in every case, bar the trial court from acting on motion for summary judgment . . . doing so prior to the filing of objections or answer to the interrogatories in the present case was improper." Lee v. Shor, 10 N.C.App. 231 at 236, 178 S.E.2d 101 at 105 (1970). See also, Bane v. Spencer, 393 F.2d 108 (1st Cir. 1968), cert. denied 400 U.S. 866, 91 S.Ct. 108, 27 L.Ed.2d 105 (1970); Wright & Miller, Federal Practice and Procedure, § 2741 at 731 (1973). It is axiomatic that should a genuine issue of material fact exist in a dispute, the case cannot be ripe for disposition via summary judgment. "[I]t should be fundamental that a defendant who has failed to answer relevant and timely interrogatories is, at least normally, in no position to obtain summary judgment.", Bane v. Spencer, supra, at 109, especially where all the facts are within the defendant's control. Wright & Miller, supra, Quaker Chair Corp. v. Litton Business Systems, Inc., 71 F.R.D. 527 (S.D. N.Y.1976).

In the case sub judice, the information relating to which persons treated the plaintiff, the working relationship between Dr. Goodwin and defendant hospital, and what treatment, if any, was provided, is solely within the control of the hospital. This is especially true since Dr. Goodwin is now unavailable to testify as to his working relationship with the hospital. The interrogatories probed into all of these issues. Ordinarily, discovery is required prior to granting summary judgment so that a party can explore issues of malpractice. See, Hoover v. Gaston Memorial Hospital, Inc., 11 N.C.App. 119, 180 S.E.2d 479 (1971). It is equally important to probe the relationship between the parties defendant if the theory of respondeat superior may apply, since issues of agency and control are questions of fact and the information is peculiarly within the defendant's knowledge. Costlow v. United States, 552 F.2d 560 (3d Cir. 1977).

Although defendants contend that plaintiff had sufficient time to utilize discovery and failed to do so, we find that the plaintiff was not precluded from utilizing discovery at the time the interrogatories were served. Since plaintiff has not had his interrogatories answered, which interrogatories attempt to discover the facts relating to who treated the plaintiff and the relationship between the defendant-physician and the hospital, it is clear that the court's granting of defendants' motion for summary judgment was premature. We do not say that after discovery is complete that summary judgment is precluded.

Reversed and remanded.

ARNOLD and ERWIN, JJ., concur.