58 Ind. App. 182 | Ind. Ct. App. | 1915
Appellee recovered a judgment against appellant for $2,500, damages for personal injuries received by lier while a passenger on one of its cars. Prom this judgment appellant appeals and by its assignment of errors challenges the ruling on its demurrer to the complaint and, its motion for new trial.
The' other questions presented by appellant’s brief are those predicated on the 25th and 26th grounds of its motion for new trial, which, in effect, present the same question, viz., that the court erred in overruling appellant’s motion to appoint Drs. W. H. McClurg, J. W. Wright and Edgar Cox, to make a physical examination of appellee, which motion was made immediately after Dr. N. C. Hamilton, a witness called in behalf of appellee, had closed his testimony and before appellee rested.her cause. It is very earnestly insisted that this ruling of the court was erroneous and prejudicial to appellant. As affecting this ruling the record discloses the following proceedings connected therewith. The averments of the complaint with reference to the particular injury involved in the motion for such examination
To this motion appellee’s attorney interposed the following objection, viz., “The plaintiff objects to the motion and
The appellant supported its motion by the affidavit of one of its attorneys and by J. W. Wright one of the examining physicians. The appellee supported her objections to the motion by her own affidavit, the affidavits of her mother, and another physician who was present at the examination, and by a joint affidavit of two of her attorneys. These affidavits are too lengthy to set out in this opinion. It is sufficient to say that the affidavit of J. W. Wright is to the effect that he and the other physician appointed by the court made an external physical examination of appellee and proceeded to make an internal examination through the vagina, that after entering a short distance they found that appellee was a virgin and that they could not make further examination of her without breaking the hymen and so told appellee and told her that it would cause pain and slight hemorrhage, and that appellee and her mother when so informed both objected and requested that such examination be not made. It is not stated, however, in such affidavit that any examination with a virgin speculum and sound was mentioned. On the contrary the affidavit shows that the examination contemplated was one that would break the hymen. The affidavit of appellant’s attorney supports practically all the averments of the motion.
The affidavits of appellee and her mother and Dr. S. Roscoe Chancellor are each to the effect that the examining physicians, when they found that appellee was a virgin, declined to go further with the examination giving a¡? their reason that they could not go further without breaking the hymen, and that they would not ask to do that. That no examination with a virgin speculum was mentioned. Appellee’s attorneys, Messrs. Barnes and Wolf in their joint affidavit support practically all the statements made in their objections to the motion, above set out, and state that they notified appellant as to the character of appellee’s injuries
The appellant’s motion named the physicians it desired the court to appoint. It has been held that a request for an examination by physicians selected by the appellant alone was properly refused. Smith v. City of Spokane (1897), 16 Wash. 403, 47 Pac. 888; Gulf, etc., R. Co. v. Nelson (1893), 5 Tex. Civ. App. 387, 24 S. W. 588. In answer to the proposition last quoted it may be said that two of the physicians here named were those whom the court had before appointed.. This is true, but the record discloses facts which might have led the court to believe that such
Finding no error in the record the judgment below is affirmed.
Note. — Reported in 108 N. E. 19. As to requiring party to submit to physical examination for purposes of evidence, see 49 Am. Rep. 724 ; 50 Am. Rep. 156; 3 Am. St. 554; 68 Am. St. 242; 14 L. R. A. 466; 23 L. R. A. (N. S.) 463. See, also, under (1) 6 Cyc. 626; (2) 2 Cyc. 1015; (3, 7, 8, 9) 13 Cyc. 231; 14 Cyc. 365; (4) 13 Cyc. 230, 231; 14 Cyc. 365, 366; 2 Cyc. 597; (5) 13 Cyc. 231; 14 Cyc. 365, 366; (6) 14 Cyc. 305; (10) 14 Cyc. 365; 13 Cyc. 1915 Anno. 230-new; (11) 14 Cyc. 365.