98 Neb. 333 | Neb. | 1915
The relator began an action in the district court for Douglas county to recover damages for personal injuries caused, as she alleged, by the negligence of the defendant in that action. After issue was joined, the defendant therein asked for an order that the plaintiff be required to submit her person to an examination by physicians to be appointed for that purpose. The court made the order, and the plaintiff refused to comply with it, and the court therefore dismissed her case without prejudice to another action. The plaintiff then applied to this court for a writ of mandamus against the judge who made the order requiring him to reinstate her case.
The first objection is that mandamus is not the proper remedy in such case. The common law writ of prohibition is abolished in this state, but the duty is still imposed upon this court to prevent violation of law by inferior tribunals, and, when there is no adequate remedy by the ordinary course of the law, mandamus is the appropriate remedy. State v. Graves, 66 Neb. 17. The plaintiff is entitled to a trial of her alleged cause of action upon its merits. She believes that the law is that she is entitled to such trial without submitting to the indignity to which she so strongly objects. If she is found to be wrong as to her rights in this regard, she may elect to submit to this requirement rather than to forego her claim entirely. An appeal from this order of dismissal, even if determined in her favor, might result in such delay as to practically defeat her action. Under such circumstances appeal is not an adequate remedy. This objection therefore must be overruled.
The relator contends that the trial court has no power under any circumstances to order a party to submit his or her person to expert examination. In her brief she says: “We waive all other questions, and counsel for the clients interested in sustaining such an order, who of such necessity represents defendant, waives all collateral questions
Mr. Justice Brewer, in the dissenting opinion, says: “In this country the decisions of the highest courts of the various states are conflicting. This is the first time it has been presented to this court, and it is, therefore, an open question. * * * The end of litigation is justice. Knowledge of the truth is essential thereto. It is conceded, and it is a matter of frequent occurrence, that in the trial of suits of this nature the plaintiff may make in the courtroom, in the presence of the jury, any not indecent exposure of his person to show the extent of his injuries; and it- is conceded, and also a matter of frequent occurrence, that in private he may call his personal friends and his own physicians into a room, and there permit them a full examination of his person, in order that they may testify as to what they see and find. In other words, he may thus disclose the actual facts to the jury if his interest require; but by this decision, if his interests are against such a disclosure, it cannot be compelled.” This language is followed by further reasoning which is worthy of care
The supreme court of North Dakota said: “If a court is powerless, in a case like this, to require a plaintiff to submit her injuries to the inspection of physicians, to the end that the exact truth as to their nature, effect, and possible duration may be ascertained, when she, by her suit, has made them the subject of judicial investigation, then the law would permit her to put forward just so much and such parts of the facts as, in her judgment, would benefit her case, at the expense of her adversary, and to invoke the court’s aid to compensate her for an injury, through a partial and one-sided investigation. The court, under such circumstances, would become a means of accomplishing the grossest injustice.” Brown v. Chicago, M. & St. P. R. Co., 12 N. Dak. 61.
And the supreme court of Michigan said: “The decisions are not uniform upon this question, but the very great weight of authority is in favor of the exercise of such power by the court, under proper restrictions; the rule recognizing, however, that a wide discretion is vested in the trial court, which justifies a refusal to require the examination where the necessities of the case are not such as to call for it, or where the sense of delicacy of the plaintiff may be offended by the exhibition, or where the testimony would be merely cumulative, or where, in the judgment of the trial court, it would not materially aid the jury. The power has been exercised in Iowa, Alabama, Arkansas, Georgia, Ohio, Missouri, Nebraska, Texas, Minnesota, Kansas, Wisconsin, and Indiana. * * * Testimony which is open to one party ought logically to be open to his opponent, if it can be obtained with due regard to decency, and in the orderly conduct of the trial.” Graves v. City of Battle Creek, 95 Mich. 266.
The supreme court of Kansas said: “The purpose of a trial is to mete out exact justice. This cannot be accomplished when the truth is suppressed, and this may be done, if the court has not the power to ascertain what the truth is. In an action for personal injuries, the injured party may call physicians, to whom he may expose his per
The supreme court of Indiana said: “The cases above cited as affirming the existence of the power establish the following propositions: (1) That trial courts have the power to order the medical examination 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 therefor is addressed to the sound discretion of the trial court; (3) that the exercise of such discretion is
Although the precise question here presented, whether the trial court has under any circumstances the power to order such an investigation, has perhaps never been directly and definitely considered and determined by this court, there are several cases in which expressions have been used that might be considered as indicating the opinion of the court as to the policy of our law. In Stuart v. Havens, 17 Neb. 211, it was stated in the syllabus that if the application is made during the trial it should be denied, and the third paragraph of the syllabus is: “If a personal examination is desired, the application should be made before the trial begins and experts agreed upon by the parties or appointed by the court.” Upon the trial in that case the plaintiff was asked “to show his arm, which he claimed was injured by falling into the excavation, to the jury. This he did without objection and afterwards three physicians, who had treated the arm professionally, testified as to its condition without objection. Afterwards the defendant below asked the court below to make an order requiring Havens to exhibit his arm to four phyiscians called by him (the defendant). This the court refused to' do.” The opinion quotes Sioux City. & P. R. Co.
It is possible that, in some instances, a delicate and'sensitive lady may suffer and endure a great wrong and injustice rather than present her cause to any court for a public investigation which would require her to allege in her petition and detail in her testimony facts in regard to the condition of her person which her sense of delicacy would forbid her doing. In such case she must elect before bringing her action whether she will bear the ills she has or fly to others that she knows not of. In bringing
If an application is made for the purpose of embarrassing or coercing the plaintiff, the trial court will be quick to discover that purpose, and will order it only under conditions above indicated, and when it clearly appears that a condition exists that can be definitely determined by such examination and cannot be satisfactorily determined without it.
Writ denied.