Denver City Tramway Co. v. Roberts, No. 5423; No. 3081 C. A.

No. 5423; No. 3081 C. A. | Colo. | Apr 15, 1908

Mr. Justice Helm

delivered the opinion of the court:

Among the assignments of error is one that challenges the ruling below refusing to grant an order for a physical examination of appellee touching her alleged injuries, by a surgeon of appellant’s selection or by one of the court’s selection.

This action of the trial court was error and requires a reversal of the case. It is, therefore, unnecessary to discuss the numerous remaining questions presented, and the present opinion will be limited accordingly.

The application for the order in question was made in due form and with reasonable diligence. It was urged several months before the trial and again renewed when the case was called and before the jury was impaneled. It was brought to the court’s attention a third time during the progress of the trial and in' connection with the cross-examination of appellee herself.

Motions of this kind are addressed to the sound discretion of the trial court and unless there is an abuse of such discretion or unless it clearly appears that that court misconceived the law, this court will ordinarily decline to set aside the ruling thereon.

In the case at bar, the record shows that the court below did not exercise his discretion at all; his action was predicated exclusively upon the view that as a matter of law he possessed no legal power or authority to grant the motion or to make the order requested. His attitude in this respect was clearly announced not less than three different times and at three different periods.

The complaint alleges that the injuries suffered are permanent; and a portion of the evidence offered on behalf of appellee tends to support this allegation.

The nature and extent of such injuries, together with the permanency thereof are matters to be determined largely from the testimony of skilled physicians or surgeons. The object of the court and jury is always to ascertain the truth, and through such ascertainment to administer accurate as well as impartial justice. But the trial of these cases exclusively upon the testimony of surgeons chosen by plaintiff would often prevent the ascertainment of truth and visit injustice upon the defendant. A physical examination by defendant’s surgeon or by a surgeon of the' court’s selection would seem to be a wise and a just precaution. Nevertheless distinguished tribunals have denied the right thereto.

This court, however, has declined to follow such tribunals. In the recent case of Western Glass Mfg. Co. v. Schoninger, 42 Colo. 357" court="Colo." date_filed="1908-01-15" href="https://app.midpage.ai/document/western-glass-manufacturing-co-v-schoeninger-6564441?utm_source=webapp" opinion_id="6564441">42 Colo. 357, the subject was exhaustively considered and the power of trial courts to order such examinations was expressly upheld. The authorities on both sides of the question are there carefully examined and analyzed, and for us now to review them would be needless repetition.

But counsel for appellee strenuously urge that we ought not' to entertain the foregoing objection. This protest is based upon an alleged imperfection in the record. . '

Appellant’s original motion reciting appellee’s refusal to permit a physical examination, and stating the grounds of the application therefor, together with the several objections in writing filed by appellee, were incorporated into the record proper, but did not appear in the original bill of exceptions. Several months after the cause was docketed in this court an order was here entered on motion of appellant, granting leave to file a supplemental bill of exceptions covering the matters thus omitted fyom the original bill. And some sixty days later such a supplemental bill of exceptions was presented and filed. Counsel for appellee thereupon submitted a motion to strike out this supplemental bill. That motion was denied, but leave was given to renew the (same upon the final submission of the cause. The matter was accordingly pressed upon our attention by appellee’s counsel at the oral argument.

Counsel admit that the filing of supplemental transcripts amending the record is largely discretionary with this court. But they contend that, inasmuch, as the term of the court below at which the cause was tried had lapsed and the time for filing the original bill of exceptions had expired, that court was without jurisdiction to allow the amendment; that it necessarily follows that this court should have refused to receive the supplemental transcript; and hence that the present motion to strike should be allowed.

This court has always pursued a liberal policy in connection with the amending of records before it. Fairness to litigants and-to the trial court requires that the review here should be upon the record as made below. And the court has quite uniformly, upon proper application made in due time and form and upon proper showing, liberally exercised the power to permit by supplemental transcript such amendments as will make the record complete and cause it to speak the truth.

Amendments by supplemental transcript have been allowed to bills of exception: incorporating matters omitted therefrom, striking out matters wrongfully inserted therein, correcting erroneous recitals embodied through inadvertence or mistake, and the like. And these alterations have been allowed notwithstanding the amendments covered by the supplemental bills were made in the court below after the expiration of the term at which the cause was tried; and also after expiration of the period fixed for filing the original bill of exceptions. — Beckwith v. Talbot, 2 Colo. 604" court="Colo." date_filed="1875-02-15" href="https://app.midpage.ai/document/beckwith-v-talbot-6560641?utm_source=webapp" opinion_id="6560641">2 Colo. 604; Knox v. McFerran, 4 Colo. 348" court="Colo." date_filed="1878-12-15" href="https://app.midpage.ai/document/knox-v-mcferran-6560878?utm_source=webapp" opinion_id="6560878">4 Colo. 348; Pleyte v. Pleyte, 14 Colo. 593" court="Colo." date_filed="1890-04-15" href="https://app.midpage.ai/document/pleyte-v-pleyte-6561969?utm_source=webapp" opinion_id="6561969">14 Colo. 593; Pleyte v. Pleyte, 15 Colo. 44" court="Colo." date_filed="1890-04-15" href="https://app.midpage.ai/document/pleyte-v-pleyte-6561977?utm_source=webapp" opinion_id="6561977">15 Colo. 44; Catlin, Land & Carnal Co. v. Burke, 22 Colo. 419" court="Colo." date_filed="1896-04-15" href="https://app.midpage.ai/document/catlin-land--canal-co-v-burke-6562746?utm_source=webapp" opinion_id="6562746">22 Colo. 419. See, also, Johnson v. Lawson, 9 Colo. App. 128" court="Colo. Ct. App." date_filed="1897-01-15" href="https://app.midpage.ai/document/johnson-v-lawson-7834090?utm_source=webapp" opinion_id="7834090">9 Colo. App. 128, and Rawlins v. Board of Commissioners, 78 F. 741" court="8th Cir." date_filed="1897-01-29" href="https://app.midpage.ai/document/rollins-v-board-of-comrs-of-gunnison-county-8857429?utm_source=webapp" opinion_id="8857429">78 Fed. 741.

The present protest is technical; were we to sustain the motion, appellant would be denied a hearing upon one of its principal objections; an objection urged throughout the trial below and strenuously relied on for reversal here. The supplemental transcript was filed by permission of this court upwards of two years before the cause came on for final argument. Counsel for appellee could not have been surprised nor could their cause have been unfairly prejudiced by this action. They availed themselves of the opportunity to argue the question at length upon its merits and to collate and cite the authorities in support of their argument. It is by no means certain that the supplemental transcript was ■ necessary. The matter appears at least twice in the original bill of exceptions and the omissions supplied by the supplemental bill only tend to make clearer and more complete the recitals of the original bill.

The last .foregoing suggestion shows the inapplicability of Fick v. Crook, 27 Colo. 429" court="Colo." date_filed="1900-04-15" href="https://app.midpage.ai/document/fick-v-crook-6563230?utm_source=webapp" opinion_id="6563230">27 Colo. 429, cited on behalf of appellee. The supplemental bill there under consideration incorporated matter that was not germane to or amendatory of anything contained in the original bill of exceptions; matter that was not in aid of, nor to supply defects in, subjects covered by the original bill; matter that was not omitted from that bill by mistake and was not originally intended to have been incorporated therein. The court held, that under such circumstances the supplemental bill was misnamed; that, in fact, it constituted an entirely new bill of exceptions; and that, as the time for tendering and filing an original bill in the trial court had expired, that court was without jurisdiction to take the action it did.

We will not discuss the objections urged against the filing of the supplemental, abstract last tendered. This abstract simply brought before the court in printed form the motion and written objections embodied in the supplemental transcript above under consideration. The court reserves the right to examine transcripts themselves and consider matters therein, even though they may not be embraced in the printed abstract; though counsel take considerable risk when they depend upon its so doing. The granting of leave to file supplemental abstracts is a discretionary power that is always liberally exercised, since it rarely happens that any injustice or injury could arise therefrom.

For the reason above given, the judgment must be reversed. Reversed.

Ci-iief Justice Steele and Mr. Justice Maxwell concur. _