156 Ind. 418 | Ind. | 1901
Suit by appellee to recover damages for ‘ personal injuries. The facts set forth in the complaint are substantially as follows: On the 8th day of April, 1894, the appellants, being,' respectively, a municipal and private corporation, were engaged in the construction of a tfunlc sewer for the defendant city through one of its public streets, declining northward and terminating in St. Joseph river'; that at a point near its terminus the appellants constructed a manhole, circular in form, and two and one-half feet in diameter, near the center of a public street' crossing, thus constituting a means of communication with said sewer from the surface of the street to the bottom of said sewer, a'distance of twenty-nine feet; that said manhole was carelessly and negligently permitted by the appellants to be open and uncovered on said day, and was and had been carelessly and negligently permitted by the defendants to be and remain open and uncovered continuously prior thereto
- The complaint is in four. paragraphs. The. first was withdrawn. The second and third are in substance the saíne.. .The fopr.th charges-that the manhole at the time of the. ¡accident was and had been for many days and weeks negligently suffered by the defendants to be a,nd rerpain insufficiently covered, etc. The joint- demiirrcr of the defendants and the separate demurrer of the defendant city to each paragraph of the complaint were overruled,, and a joint exception to both rulings reserved. Upon issues joined, the jury returned a general verdict for appellee and answers to divers interrogatories. The city alone appeals, and assigns for error (1) the insufficiency of the. facts stated to constitute a cause of action against it; (2), the action of the court in overruling its demurrer to each paragraph of the
No question upon the complaint is properly presented by the demurrers. The record shows that “the defendants demur to each paragraph of the complaint,” etc. Then follow three separate pápers, being the separate demurrers of the defendant city to each the second, third,, and fourth paragraphs of the complaint, and the Record then proceeds: “Which demurrers, the court overruled, to which .ruling of the court defendants except.” , 'Exceptions taken thus in gross reserve no question and an assignment of error predicated thereon by one of the exceptors is futile. Johnson v. McCulloch, 89 Ind. 270, 273; Western Union Tel. Co. v. Trissal, 98 Ind. 566, 570; Walter v. Walter, 117 Ind. 247, 249; Elliott’s App. Proc., §788.
Appellant, however, makes an 'independent assignment of error that the complaint does not state facts sufficient to constitute a cause of action against it. The total absence from the complaint of any averment of some fact or facts essential to the existence of the cause of action, or the presence ‘off some averment that absolutely destroys the plaintiffs right of recovery, may be for' the first time raised in'this court by an independent assignment of errors-under .§346 of the code — §346 Burns 1894, §343 R. S. 1881 and Horner 1897, — but mere uncertainty, or inadequacy, of averment, such as might have been amended and cured upon motion seasonably made, will be deemed to h'aVe been waived by k defendant who proceeds with the' trial to final judgment without objection, and who brings his complaint for the first time, after the cause of action has been strengthened by the verdict of a jury; and the presumptions indulged in favor of the' decisions of the'trial court lipón motions for judgment, and for a new trial. Shoemaker v. Williamson, ante, 384, and authorities cited; Kinney v. Dodge, 101 Ind. 573; Smith v. Smith, 106 Ind. 43, 45. This assignment of error
The complaint avers that the defendants'were constructing the sewer; that they had constructed the manholé;!t'hat the defendants negligently permitted the manhole to he- and remain open and uncovered on the day of the plaintiff’s injury, and so to be and remain open and uncovered continuously for several weeks prior thereto, and negligently permitted a large sand pile, which defendants had produced, to be and remain on said day and for several weeks prior thereto near the manhole, and at a point on said sewer where the same was completed, with the knowledge that the children in the neighborhood, ineluding the plaintiff, were' accustomed to play in said sand piles. There is no suggestion in the complaint that the defendant construction company was an independent contractor, nor that it had the exclusive possession of the street; nor does it appear from'anything averred, except for the presence of the sand piles, that the public was prevented or in any -way denied the usual right of play or travel in the street. Even assuming, ¿s appellee argues, that the facts pleaded show that the street was so obstructed by the construction of the sewér as to be inconsistent with public use, and that the construction company was 'necessarily in the exclusive possession of the street,’ the city would not thereby be relieved of liability when it is shown that it had notice, or might have had notice by the exercise of proper oversight, that its licensee had 'acted in . a negligent manner and left its streets in an unsafe and dangerous condition. Staldter v. City of Huntington, 153 Ind. 354: Senhenn v. City of Evansville, 140 Ind. 675; City of Indianapolis v. Doherty, 71 Ind. 5; Elliott’s Roads and Streets (2nd ed.) §634. We are unable to see'why the complaint is not sufficient against the city if tested by demurrer, and it is clearly so when questioned for the first time in this court.
' The first ground urged for a hew' trial is the' refusal of the court, upon appellants’ motion, to order a physical examination of the plaintiff. Before the commencement of the trial appellant filed and presented its verified' motion- that the court select some competent, responsible, and unbiased 'physician and surgeon of the county to examine the head, leg, and eye of the plaintiff before the beginning of the'trial, for the purpose of discovering and giving testimony1 ás tó the trim character 'and extent of ■ his injuries', -and their probable effect ás to permanency upon his mind and person';
The overruling of this motion presents a question of some difficulty, and upon which the courts of the country are not entirely agreed. _ It is one, too, that has but recently engaged the attention of the courts of last resort... The fundamental principle, however, is an ancient doctrine of the common law, limited, it is true, to a few classes of cases, among them mayhem and divorce cases, wherein impotency was charged; but as the sources of evidence have been extended to parties and in many other ways, its application has been expanded to meet new conditions. The doctrine rests upon the principle that justice is the object of judicial investigation, and that courts charged with' its administration, as a necessary means of attaining that end,, have inherent power to require the production of the most' 'infallible evidence. That its application to personal injury cáses is a modern practice does not disprove its commo'n law origin. As was well" said by justice Brewer in his dissenting opinion in Union, etc., Co. v. Botsford, 141 U. S. 250, 258, 11 Sup. Ct. 1000, 35 L. Ed.
Such things, when a part of the res gestae, serve-a most useful purpose in assisting the jury to a proper-application of the testimony. They are unerring exponents of the truth of the particular fact, and it may not be controverted that when the nature, extent, and effect, óf a palpable injury is
The cases above cited" as affirming the ‘ éxistence of the power establish the following propositions: (1) "That trial courts have the power to order the medical éxáminatión by experts of the injured parts of a plaintiff who' is seeking to recover damages therefor; (2) that a defendant has no absolute right to demand the enforcement of such an order, but the motion-thetefor is addressed to the sound1 discretion of the trial court; (3) that the exercise of such discretion is'reviewable on appeal, and correctible in cases of abuse; (4)' that the examination should be applied for and
The discretion lodged in the trial court, as fairly deducible from the decisions, is a sound discretion based solely upon legal considerations. When serious and permanent injuries are claimed by the plaintiff, and he, or she, has submitted to examination by a chosen, physician, or surgeon, who appears, as á witness in plaintiff’s behalf, and the nature, extent, and effect of the injury is to be deduced from objective conditions, and so fully from no other source, no degree of sentiment will justify a denial of the motion. When it becomes a question of probable violence to the.refined and delieáte feelings of the .plaintiff on the one hand, and.probable, injustice to the defendant on the other, the law will not hesitate, — the court in making such orders, with respect to time, place, and persons, in every case, having such due regard for the feelings of the plaintiff and proprieties of the case as the ends of justice will permit.
So far as our researches have revealed the federal Supreme Court, Justices Brewer and Brown dissenting, now stand alone in denial of the power. Union, etc., Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct. 1000, 35 L. Ed. 734.
The decisions of New York were confused, and the rule both affirmed and denied in inferior courts, until established
The power was first denied in the state of Missouri in Loyd’s case, supra, in 1873, but affirmed by the same court iii -Shepard’s case, supra, in 1885-, and affirmance has been adhered to in many .subsequent cases.
• In 'Illinois the Supreme Court in 1882 in Parker v. Enslow, 102 Ill. 272, disposed of the question in. a single ■ line as follows: - “The court had no power to make or enforce such an order”; and in subsequent decisions, while not expressly overruling .the Parker case, recognize the existence of the power, when properly and timely invoked. See Chicago, etc., R. Co. v. Holland (1887), 122 Ill. 461, 13 N. E. 145; St. Louis Bridge Co. v. Miller (1891), 138 Ill. 465, 28 N. E. 1091.
The decisions in Indiana, in the words of the majority opinion of the, federal Supreme Court in the Botsford case, supra, “are conflicting and indecisive.” In the first appear-, anee of the question before this court in any. form, in 1885, in Louisville, etc., R. Co. v. Falvey, 104 Ind. 409, 416, 417, in ruling upon the competency of evidence touching'the details of a physical examination of the plaintiff under an order of court, made upon the defendant’s motion, the right of the trial court to make filé order is not questioned.
Kern v. Bridwell, 119 Ind. 226, 12 Am. St. 409, was an action for slander for charging the plaintiff with .lewdness. The'court refused to order the plaintiff to submit her person to examination by medical experts. The question related to a collateral matter and not- to the subject-matter of the suit, — to a source of-evidence not shown to be reliable nor useful to the defendant in his answer of justification, and should not be accepted-as an. authority in a suit by a plaintiff to recover damages for a particular injury to his person.
The question came before the court in Hess v. Lowrey, 122 Ind. 225, and the request for an examination denied because
The case of Terre Haute, etc., R. Co. v. Brunker, 128 Ind. 542 presenting a like question was ruled by Hess v. Lowrey, supra.
In Pennsylvania Co. v. Newmeyer, 129 Ind. 401, 409, the question we have here came before the court for decision, and it was there held that the power of the court to order an examination did not exist, the court regarding what was said in Hess v. Lowrey as obiter. Upon -further, and perhaps fuller, consideration of the question, we are satisfied that the decision in the Newmeyer ease, upon this-point, is .refuted by the great weight of authority,-and it is therefqre disapproved. It is insisted that the .question should be ruled by the decision of the federal.Supreme Court, but .adopting as our own the language used by Montgomery, J., in Graves v. Battle Creek, 95 Mich. 266, 54 N. W. 757, with respect to the Botsford decision: “This decision is entitled to very great weight; but in view of the manifest justice' of a requirement that the plaintiff in case of personal injury shall produce the- best evidence attainable we think this- case should not'be permitted to-stem the otherwise-almost un-, broken-current-of authority upon the subject.”
In the ease at bar the motion -of the defendant was timely; the injuries were alleged to be serious and permanent, -as affecting both the body and mind of the plaintiff ;-the plaintiff would produce in his own behalf his attending - physician ; the defendant had no opportunity to inspect the injufiés, or in any way inform itself- as to their nature, extent, and effect, and was wholly-'unable to- contest, if- it should-be contested, the testimony of the plaintiff’s expert witness; ■ that an: examination by skilled and unbiased-surgeons would