56 Fla. 127 | Fla. | 1908
This is an action instituted by the defendants in error against the plaintiff in error, in the circuit court for Hernando county, seeking to recover damages for personal injuries received by Stella Dees, one of the defendants in error, alleged to have been occasioned by the negligence of the plaintiff in error. A trial was had before a jury, which resulted in a verdict in the sum of $2,500.00, in favor of the plaintiffs. The defendant seeks to have the judgment entered thereon reviewed and tested here by writ of error, returnable to the present term.
The amended declaration contains two counts, to which the defendant filed the plea of not guilty, upon which the plaintiffs joined issue. Before pleading to- the amended declaration, the defendant had interposed a demurrer thereto, which was overruled and which ruling forms the basis for the first assignment. It is, however, expressly abandoned here, and we do not set forth the declaration, as no point is made thereon.
The second assignment is that “the court erred in overruling and denying the defendant’s petition or motion for an order requiring the plaintiff, Stella Dees, to submit to a physical examination made on the 16th day of April, A. D. 1907.”
We find that the issues in the 'case were made up on the 9th of March, 1907, and, according to the. bill of exceptions, that at the spring term of such court, on the 16th day of April, 1907, the defendant filed a motion for an order requiring the plaintiff to submit to a physical examination, but, so far as is disclosed, no order was made thereon, and, in the absence of an order denying the sáme and an exception noted thereto, there is nothing upon which to predicate error, hence this assignment must fail. The bill of exceptions shows the following proceedings:
*131 “Now comes the defendant by its attorneys, R. A. Burford and G. C. Martin, and moves the court for an order requiring Mrs. Stella Dees, the plaintiff in the case, to submit to such physical examination of her person as shall be reasonably sufficient to determine her physical condition at the time of trial, and the nature and extent of the alleg-ed injuries she claims to have received, as alleged in the amended declaration. R. A. Burford & G. C. Martin, attorneys for the defendant.
And at the fall term; of said circuit court, to-wit: on November nth, 1907, said' motion was renewed and again presented, and thereupon, on the 19th day of November, 1907, during a term of said court, said motion came on to be heard, and the court thereupon made the following order, denying said motion. This cause coming on to' be heard on motion of ' defendant’s attorney on the preliminary call of the civil docket for an order for a physical examination of the plaintiff, and the same having been considered by the court, and the court being advised and no facts or circumstances are shown from which it is made to appear that it is necessary for such examination to be made, when it is considered and ordered that said motion be denied without prejudice to renew the same, if it is made to appear that the same is necessary or expedient in the trial of said cause, and the defendant excepts. In open court Brooksville, November 19th, 1907. W. S. Bullock, Judge. To which ruling of the court the defendant- then and there excepted.
At the spring term of the said court at which the said cause was tried, the said defendant, on the preliminary call of the civil docket, to-wit: on April 21st, 1908, .again renewed the said motion for an order requiring a physical examination of the plaintiff, in the words of said original motion. Thereupon the court again denied said motion in the words of the original order, of date No*132 vember 19th, 1907. To which ruling of the court the defendant then and there excepted.”
Upon these two rulings are based the third and fourth assignments which may conveniently be treated together. The right of the defendant, in an action brought to recover damages for personal injuries to insist upon a physical examination of the plaintiff in order to determine the nature, character and extent of such injuries and the power of the trial court to require such examination has been the subject of much controversy in the courts and the authorities are conflicting. See 4 Wigmore’s Evidence, section 2220, especially the numerous authorities collated in note 9 on page 3022, et seq., and the later cases given in note 9 of the same section in vol. 5, the supplementary volume, found on page 222. Also see Watson’s Damages for Personal Injuries, section 655. We have examined quite a number of authorities bearing upon the subject, but it is unnecessary for us to go into any extended discussion, for the reason that, unlike most of the other jurisdictions, we have a statute regulating the matter, section 3151 of the General Statutes of 1906, which is as follows:
“3151. Examination of injured party in personal damage cases.- — -In all actions brought in the courts of this state to recover damages for personal injuries alleged to have been sustained, it shall be discretionary with the trial court, upon motion of the defendant, to require the injured party, if'living, either before or at the time of the trial of the cause, to submit to such physical examination of his or her person as shall be reasonably sufficient to determine physical condition at the time of trial and the nature and extent of the alleged injuries. The physical examination provided shall be made by a physician to be named by the court in the presence of one or more physicians or attendants of the*133 injured party, if the party so desires. The compensation of the examining physician shall be fixed by the court in each particular case, and shall be in the first instance paid by the party petitioning for such examination but shall be taxed up' as a part of the costs of the case subject to the final disposition of the same.”
This statute seems never to have been construed by this court, but we find that it was originally enacted in 1899, forming chapter 4719, and that in the title thereof it was referred to as “An Act to Require in the Discretion of the Trial Court,” &c. As is said in section 655 of Watson’s Damages for Personal Injuries: “The general rule is that the defendant has no absolute right to insist upon a physical examination of the plaintiff, the granting or refusal of a motion or application for an order of court requiring the plaintiff to submit to' such an examination, resting- in the sound discretion of the trial judge. From all of which it results that, as in other matters discretionary with trial tribunals, an appellate court will not interfere except in cases of manifest abuse of discretion.” This principle has often been recognized and applied by this court in regard to the exercise of judicial discretion by trial judges. See Wilson v. Johnson, 51 Fla. 370, 41 South. Rep. 395, and authorities there cited; Adams v. State, 55 Fla. 1, 46 South. Rep. 152; Stearns & Culver Lumber Co. v. Adams, 55 Fla. 394, 46 South. Rep. 156. If this principle is applicable, even in the absence of a statute, as the above cited authorities hold, there can be no doubt as to its applicability in the instant case, since the law-making power has especially lodged the granting of such an order within the liscretion of the trial court, and a clear abuse of such i'iscretion must be made to appear to an appellate court n order to warrant it in disturbing an order denying such application. Other jurisdictions have so held, even
As will be observed from the first order made by the trial court, which we have copied above, upon the application for an order for such physical examination of plaintiff, it was stated therein that no facts or circumstances had been shown from which it was made to appear that such examination was necessary, therefore it was denied, but without prejudice to renew the same upon a proper showing. No abuse of discretion is made to appear here. At that time, so far as is disclosed by the transcript, all that the court had before it was the application for such order, which we have copied above, and the pleadings. The defendant in its brief contends that it was entitled to the granting of the order for such physical examination because the amended declaration alleged that “Plaintiff, Stella Dees, was grievously bruised, wounded, hurt and injured, enduring therefrom great bodily pain and suffering and mental anguish,” and urges, in support of this contention, “the defendant had no means of determining the extent, nature and character of the alleged injuries, except as the same might be revealed by a physical examination.” This position is not tenable. Such an order as that in the instant case was made by the trial court, which was upheld and approved by the Supreme Court, in Sidekum v. Wabash, St. L. & P. Ry. Co., 93 Mo. 400, text 403, 4 S. W. Rep. 701. Also see the clear and forceful reasoning in the opinion rendered by Mr. Justice McClellan in Alabama G. S. R. Co. v. Hill, 90 Ala. 71, 8 South. Rep. 90, where the cited Missouri case is approvingly
The fifth assignment is based upon the overruling of the defendant’s objections to the following questions propounded to Dr. Samuel C. Woods, a witness for plaintiffs: “what symptoms did you find, doctor?” We find that the grounds of objection interposed to this question were as follows:
“1. Because no proper foundation has been laid.
2. Because it does not appear from the examination of the witness, so far, that he is qualified as an expert, if the testimony is offered for that purpose.
3. Because the examination of the witness, so far, has not developed his capacity and knowledge of the matters inquired about.”
When this question was propounded to the witness, he had already testified that he was a physician engaged in general practice, had resided at Webster, Fla., for four years and that Mrs. Dees had been his patient since the 30th day of April, 1907, at which time he was first called to see her. Sections 1165, 1166, and 1167 of the General Statutes of 1906, contain the provisions regulating the granting of certificates to physicians entitling them to practice medicine in this state and section 3611 of such statutes makes it a crime for any one to practice medicine without having obtained such certificate and fixes the punishment for a violation thereof. If the witness was not a practicing physician or entitled to practice medicine under the statutes of this state, the defendant could have established that fact either by cross-examination of the witness or by the introduction of other evidence. This likewise applies to the skill, qualifications and experience of the witness. We do not understand from what is disclosed in the bill of exceptions that the witness was of
“The admissibility of expert testimony rests, to a large extent, in the discretion of the court, but this does not mean that the court may arbitrarily admit or exclude such testimony, but merely that the court may exercise a sound judicial discretion in each case in applying rules of law governing the admissibility of such testimony. The court will exclude testimony which is manifestly unreliable; and will not allow an expert to answer absurd and useless .questions.”
We find nothing" in this quoted passage in conflict with the principle enunciated by this court. As a matter of fact, the witness was cross-examined at some length by the defendant, and we do not find that any motion was made to have any of his testimony stricken out by reason of his lack of qualifications, skill or experience to testify as a physician or to answer the different questions propounded to him.
The court gave to the jury the first instruction requested by the plaintiffs, to a portion of which the defendant excepted and which is as follows:
“First. If it shall appear from the evidence that the plaintiff, Mirs. Stella Dees, was injured upon the train of the defendant company as alleged in the declaration, you will find for the plaintiffs, unless it shall apear from the evidence that the agents of the said defendant had exercised all ordinary and reasonable care and diligence, the presumption being against the defendant, and the burden of proving such care and diligence resting upon the defendant. To the giving of that portion of which said charge reading as follows: ‘The presumption being against the defendant,’ and without giving any direction to the jury as to when and under what circumstances the presumption would cease, the defendant did then and there except.”
This forms the basis for the fourteenth assignment.
The fifteenth, sixteenth and seventeenth assignments are all based upon the thirteenth instruction given to the jury, at the request of the plaintiffs, as to which the bill of exceptions shows the following:
“Thirteenth. If you find for the-plaintiffs, you will, in computing the amount of their damages, consider the injuries which she sustained at the time of the wreck, with all injuries and maladies naturally resulting therefrom, and also the fear and mental anguish which the plaintiff Stella Dees experienced at the time of the wreck, and also amounts which the plaintiffs have paid for medical attendance and nursing and for medicine, and for hired help, and also such expense as from the evidence appears to- be necessary to restore the plaintiff Stella Dees to her ordinary degree of health. To the giving of which said' charge the defendant then and there excepted'. And the said defendant did then and there specially object and except to the giving of that portion of the 13th charge reading- as follows: ‘and also- amounts which the plaintiffs have paid for medical attendance and nursing, and for medicine and for hired help.’ And the said defendant did further then and there except to the giving of that portion -of the 13th charge reading- as follows : ‘and also such expenses as from: the evidence ap*141 pears to be necessary to restore the plaintiff Stella Dees to her 'ordinary degree of health.’ ”
Plaintiffs and defendant have discussed these assignments together, and we shall do likewise. The argument made by the defendant in support of these assignments is slight, and, therefore, we do not feel called upon to enter into any extended investigation concerning them. We have repeatedly held it is the duty of a party resorting to an appellate court to make the errors complained of clearly to appear, if they in truth exist. See Ropes v. Stewart, 54 Fla. 185, 45 South. Rep. 31, and Putnal v. State, decided here at the present term, and authorities there cited. We have also repeatedly held that, unless the error complained of is so glaring or patent that no argument is needed to demonstrate it, counsel should call the attention of this court to the specific grounds upon which the error is based, stating his reaspns therefor and citing the .authorities relied upon to support the same. See Hoodless v. Jernigan, 46 Fla. 213, 35 South. Rep. 656, and authorities there cited, and authorities cited in Atlantic Coast Line R. Co. v. Benedict Pineapple Co., 52 Fla. 165, text 173, 42 South. Rep. 529, text 532. The contention made by the defendant, as we understand it, is that the instruction permits, even if it does not direct, the jury, in assessing the amount of damages for plaintiffs, to consider improper elements thereof. We cannot agree with the defendant. In computing the amount of damages to which plaintiffs were entitled, the instruction complained of restricted and confined the jury to the evidence adduced in the trial of the case. Construing this instruction in connection with all the other -charges and instructions bearing upon the same point, as we have already seen that we must do under the principles so repeatedly ennunciated by this court, we are clear that the jury must have understood
The eighteenth assignment is based upon the fifteenth instruction, given at the instance of the plaintiffs, which is as follows:
“Fifteenth. If you should find from the evidence that the plaintiff, Mrs. Stella Dees, was, at the time of the injury, suffering from any physical malady, and that injuries sustained in the wreck testified to' contributed to such malady or inflamed the diseased parts, the plaintiff is entitled to recover for the injuries consequent upon such injury.”
To support its contention the defendant cites Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Manuf’g Co., 27 Fla. 1, 9 South. Rep. 661, S. C. 17 L. R. A. 33, and Pensacola & Georgia R. R. Co. v. Nash, 12 Fla. 497, which we have examined but have failed to find their relevancy to the assignment under consideration. As is said in Vol. 3 of Hutchinson’s Carriers, section 1432, (3rd ed.), “If the passenger, at the time an
The court refused the fourth instruction requested by the defendant, which is as follows:
“4th. If you believe from the evidence that the wreck or accident in this case was caused by an impaired or defective condition of the metal plate on the truck referred to in the testimony, and that the same was a latent defect not known and not capable of detection by the ordinary means of examination, or by the exercise of all ordinary and reasonable care, then the accident would be one which could not have been reasonably anticipated or guarded against, and you should find the defendant not guilty.”
' 'Upon such refusal is predicated the- nineteenth assignment. We find that the principle of law embraced in this requested instruction was fully covered by other
The twentieth assignment is based upon the overruling of the motion for a new trial. JJhis motion contains, thirteen grounds, all of which, however, have already been discussed and disposed of in the consideration of other assignments, except such as question the sufficiency of the evidence to support the verdict, which such grounds are also made the basis for the two remaining assignments, the twenty-first and twenty-second. These three assignments are but lightly argued by the defendant in its brief, which contains a statement to the effect that they would be discussed fully and at length in the oral argument. We listened attentively to this argument from the respective counsel and are, of the opinion, that the contentions of the defendant were fully met and answered. We see no useful purpose to be accomplished by our entering into any discussion thereof, so content ourselves with referring to what we said in Seaboard Air Line Ry. v. Scarborough, 52 Fla. 425, text 449, 42 South. Rep. 706, text 714, and Atlantic Coast Line R. R. Co. v. Beazley, 54 Fla. 311, text 422, 43 South. Rep. 761, text 796.
Having found no reversible error, the judgment must be affirmed.