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Williams v. Congdon , 43 N.C. App. 53 ( 1979 )


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  • 257 S.E.2d 677 (1979)

    Robert D. WILLIAMS
    v.
    Edgar D. CONGDON.

    No. 7829SC1019.

    Court of Appeals of North Carolina.

    September 18, 1979.

    *678 S. Lee Atkins, Saluda, for plaintiff-appellant.

    Van Winkle, Buck, Wall, Starnes, Hyde & Davis, P. A., by O. E. Starnes, Jr., Asheville, for defendant-appellee.

    WELLS, Judge.

    The sole question presented in this appeal is: Assuming the facts alleged in plaintiff's complaint to be true, was defendant entitled to summary judgment as a matter of law? We think so.

    Summary judgment is appropriate only where there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. G.S. 1A-1, Rule 56; Bentley v. Langley, 39 N.C.App. 20, 249 S.E.2d 481 (1978), disc. rev. den., 296 N.C. 735, 254 S.E.2d 176 (1979). "The party moving for summary judgment has the burden of clearly establishing the lack of any triable issue of fact by the record properly before the court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded." Singleton v. Stewart, 280 N.C. 460, 465, 186 S.E.2d 400, 403 (1972), quoting from 6 Moore, Federal Practice, § 56.15 [8], at p. 2439 (2d ed. 1971).

    Where the pleadings or proof disclose that no cause of action exists, summary judgment may be granted. Harrison Associates v. Ports Authority, 280 N.C. 251, 185 S.E.2d 793 (1972), rehearing denied, 281 N.C. 317 (1972).

    Indulgently regarded, the plaintiff's complaint may be considered to be asserting a cause of action grounded in medical malpractice or libel. Neither can succeed under the record before us. Plaintiff has alleged, and proof submitted by defendant supports, that defendant conducted his interviews and made his report as a witness in the due course of a judicial proceeding. Accordingly, defendant's report is absolutely privileged and cannot be made the basis of a cause of action for either medical malpractice or libel. Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860 (1957); Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248 (1954). See also Fowle v. Fowle, 255 N.C. 720, 122 S.E.2d 722 (1961).

    The granting of summary judgment in favor of defendant is

    Affirmed.

    CLARK and ERWIN, JJ., concur.