Golding v. Taylor , 19 N.C. App. 245 ( 1973 )

198 S.E.2d 478 (1973) 19 N.C. App. 245

James N. GOLDING
v.
Tom F. TAYLOR.

No. 7328SC376.

Court of Appeals of North Carolina.

August 22, 1973. Certiorari Denied October 2, 1973.

Morris, Golding, Blue & Phillips by William C. Morris, Jr., Asheville, for plaintiff-appellee.

Bennett, Kelly & Long, P.A. by E. Glenn Kelly, Asheville, for defendant.

Certiorari Denied by Supreme Court October 2, 1973.

BRITT, Judge.

Defendant assigns as error the denial of his motion to quash the service of process and dismiss the action. This assignment has no merit.

G.S. § 1-75.4 provides in pertinent part: "A court of this State having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to Rule 4(j) of the Rules of Civil Procedure under any of the following circumstances: * * * (3) Local Act or Omission.—In any action claiming injury to person or property or for wrongful death within or without this State arising out of an act or omission within this State by the defendant."

We hold that an action for alienation of affections and for criminal conversation is an action ex delicto and involves "injury to person or property" within the contemplation of the above quoted statute. Hardison v. Gregory, 242 N.C. 324, 88 S.E.2d 96 (1955). The court found facts to the effect that process in this action was served on defendant by a person authorized under the laws of the State of Georgia to serve process, that at the time of the occurrence of the matters complained of in the complaint, defendant was a citizen and resident of North Carolina, that acts of defendant complained of occurred in North Carolina and that defendant departed from the State of North Carolina subsequent to the occurrence of the matters complained of in the complaint. The findings of fact are fully supported by the affidavits and answers to interrogatories presented at the hearing and the findings fully support the court's conclusion that personal service "has been had" upon the defendant and that the Superior Court of Buncombe County has jurisdiction over the cause of action and over the parties.

Defendant assigns as error the overruling of his objections to, and the court's requiring him to answer, plaintiff's interrogatories.

Answers to many of the interrogatories could be incriminating to defendant. As an example, Interrogatory 17 inquires as to whether defendant saw plaintiff's wife in Atlanta, Georgia, during September of 1971, whether defendant had sexual intercourse with plaintiff's wife in Atlanta, how defendant and plaintiff's wife traveled from Asheville to Atlanta, where defendant and plaintiff's wife stayed while in Atlanta, etc.

Plaintiff contends that defendant failed to object to the interrogatories within ten days after they were served as required by G.S. § 1A-1, Rule 33, therefore, defendant has lost his right to object. This contention is supported by Wright and Miller in their treatise on Federal Practice and Procedure; in Vol. 8, § 2173, p. 544, in their comments on Federal Rule 33, which is very similar to our Rule 33, we find: "It is inappropriate for a party to decide for himself that an interrogatory is improper. It is his responsibility either to answer the interrogatory or to object. In the absence of an extension of time, failure to object within the time fixed by the rule is a waiver of any objection".

While we agree that ordinarily, in the absence of an extension of time, failure to object to interrogatories within the time fixed by the rule is a waiver of any objection, we hold that this principle must yield to the privilege against self-incrimination guaranteed by the Fifth Amendment to the Federal Constitution. In 98 C.J.S. Witnesses § 456, pp. 311-312, it is said: "The waiver [of the privilege against self-incrimination] may be expressed or specific, that is, by word of mouth or by writing, or it may be by some act amounting to waiver; in the latter event an act alleged to constitute the waiver must be carefully appraised, and any doubt must be resolved against the waiver."

In view of our holding on the question of waiver, that portion of Judge Thornburg's order denying defendant's objections to, and requiring him to answer, all unanswered interrogatories is vacated. The cause will be remanded to the superior court where the court will conduct a hearing, pass upon the merits of defendant's refusal to answer each of the unanswered interrogatories on ground of self-incrimination, and require defendant to answer the interrogatories where his answers would not be self-incriminating.

We have considered the other assignments of error brought forward and argued in defendant's brief but finding them to be without merit, they are overruled.

Remanded.

BROCK, C. J., and CAMPBELL, J., concur.