131 Tenn. 683 | Tenn. | 1915
delivered the opinion of the Court.
The plaintiff filed his declaration on the 21st day of September, 1914, alleging that by the negligence of the defendant, the Chattanooga Iron Works, he was injured in the following manner: That is to say, while assisting in the insertion of a rivet in some metal sheeting, he
On the 16th of November the defendant moved the court—
“to order a physical examination to be made of the plaintiff by expert physicians and oculists, to be appointed by the court, for the purpose of determining whether or not the injuries claimed by the plaintiff to have been inflicted upon his eyes exist.”
The motion continues:
“The defendant shows that the injuries complained of are latent, and not perceptible to experts, and that the ends of justice require that the defendant be advised to what extent, if any, the eyes or sight of the plaintiff have been- injured. The defendant offers and agrees to pay the fees and charges made by the experts for making such examination. ’ ’
The motion was not supported by affidavit or evidence of any kind.
On this motion the trial court—
“ordered that Dr. E. C. Ellett, a physician selected by the court, be appointed to make such examination, the costs of which will be paid by the defendant, the Chattanooga Iron Works, It is further ordered that the plaintiff, C. P. Williams, do present himself at the office of said Dr: E. 0. Ellett, No. 1722 Exchange Building,*688 on Saturday, December 5,1914, at ten o’clock a. m., and there submit to such reasonable physical examination hy said physician as may be deemed necessary by him to determine the condition of plaintiff’s eyes and vision. ’ ’
Thereupon the plaintiff—
“ excepted to the action of the trial judge in ordering’ him to submit his person to a physical examination, and denied the power of the court to order such examination under the existing circumstances, and declined to submit to same, and defendant moved in open court that the suit be dismissed; whereupon the court dismissed his suit, to which he excepted and prayed an appeal,” etc.
Pursuant to the appeal the record was transmitted to the court of civil appeals, and there the judgment of the trial court was reversed, and the cause remanded for further proceedings. The case was then brought ta this court by the writ of certiorari.
The learned court of civil appeals held that the right to direct the examination existed in the trial court, but that the order was not sufficiently specific in the way of protecting the plaintiff from oppression.
In this court the order is objected to by the plaintiff on the same grounds, and also the power of the court, to grant such an order at all is challenged.
The first question therefore is whether the trial court had the right to order a physical examination of the plaintiff to be made, or rather, stating the question in its most, general form, whether a trial court has the
The subject has received extensive examination in a series of cases in this country. The power is affirmed in the following jurisdictions: Alabama, Arkansas, California, Colorado, Georgia, Indiana, Iowa, Kansas, Kentucky, Maryland, Michigan, Minnesota, Missouri, Nevada, Ohio, Oklahoma, North Dakota, Washington, and Wisconsin. It is authorized by statute in New York, New Jersey, and Florida. It is denied in Illinois, Montana, South Carolina, Utah, Texas, and in the supreme court of the United States. We shall not refer directly to cases from all of these jurisdictions, but they will be found cited in the text and notes of the following cases, which are readily accessible everywhere. These cases adequately discuss the question, viz.: Richmond & D. R. Co. v. Childress, 82 Ga., 719, 9 S. E., 602, 3 L. R. A., 808, 14 Am. St. Rep., 189; Alabama & G. S. R. Co. v. Hill, 90 Ala., 71, 8 South., 90, 9 L. R. A., 442, 24 Am. St. Rep., 764; Graves v. Battle Creek, 95 Mich., 266, 54 N. W., 757, 19 L. R. A., 641, 35 Am. St. Rep., 561; Hall v. Manson, 99 Iowa, 698, 68 N. W., 922, 34 L. R. A., 207; O’Brien v. La Crosse, 99 Wis., 421, 75 N. W., 81, 40 L. R. A., 831; Lane v. Spokane Falls & N. R. Co., 21 Wash., 120, 57 Pac., 367, 46 L. R. A., 154, 75 Am. St. Rep., 821; Wanek v. Winona, 78 Minn., 98, 80 N. W., 851, 46 L. R. A., 448, 79 Am. St. Rep., 354; South Bend v. Turner, 156 Ind., 418, 60 N. E., 271, 54 L. R. A., 396, 83 Am. St. Rep., 200; Atchison, T. & S. F. R. Co. v. Palmore, 68 Kan., 554, 75 Pac., 509,
Some of the cases from the States in opposition are: Parker v. Enslow, 102 Ill., 272, 40 Am. Rep., 588; Stack v. New York, N. H. & H. R. Co., 177 Mass., 157, 58 N. E., 686, 52 L. R. A., 328, 83 Am. St. Rep., 269; Austin & N. W. R. Co. v. Cluck, 97 Tex., 176, 77 S. W., 403, 64 L. R. A., 496, 104 Am. St. Rep., 863, 1 Ann. Cas., 261; May v. N. W. P. R. Co., 32 Mont., 529, 81 Pac., 328, 70 L. R.
One of the chief questions discussed in the cases is the basis of the right to make the examination. In some it is insisted that it is a right inherent in the courts for the purpose of effecting justice, and iii those which object to the right it is insisted that no such power inheres in courts, and that it can be conferred only by statute. It is denied in the negative cases that such practice is recognized in the common law. In many of the affirmative cases it is insisted that- such right does exist at common law. The weight of authority- is so great in favor of the right to order the -examination that we do not deem it necessary to go at length into the reasons so fully discussed in the cases - which we have cited. We shall only add, on this branch of the case,- that we believe the right was exercised at ■common law, although not in precisely the same way in which it is practiced at this time.
“An appeal of larceny is an action which a person robbed of goods may bring against the felon, in which there shall be a restitution of the g’oods, and the offender to suffer such punishment as if he were convicted at the suit of the king.”
That is, there was a combined action both for restitution and for punishment. Id. 292. An appeal of mayhem was for any hurt done to a man’s person, whereby he was rendered less able in fighting to' annoy others, or defend himself. Id. 293. The demand was set forth in a declaration, describing the offense with the greatest certainty, also showing in what part of the body the wound was given, in the ease of mayhem.’ Id. 297. Later on in the same work (volume 9, p. 554) it is said:
“In an appeal of mayhem the court may, at the prayer of the defendant, try, upon inspection of the part, whether there be a mayhem. Bro. Appeal, pi. 46; Bro. Trial, pl. 57; 2 Hawk. P. C. ch. 23, section 27. As*693 the courts have a power, in case the defendant in an appeal of mayhem pray it, to try upon inspection of the part whether there be a mayhem, the plaintiff in an appeal must always appear in person, that the court may have an opportunity, in case it should be so tried, of inspecting the part. Bro. Trial, pl. 37; 2 Hawk. P. C. ch. 23, section 27. If, where the trial is by the court upon inspection, there be a doubt upon inspecting’, the court has a power of requiring or receiving other evidence. 2 Roll. Abridg. 373, pl. 2. ... If the court, upon inspecting the part in an appeal of mayhem, be doubtful whether there be a mayhem, a writ may be awarded to the sheriff, to return some able physicians and surgeons for the better information of the court. Bro. Appeal, pi. 46; Bro. Trial, pl. 57; 2 Hawk. Pl. C. ch. 23, section '27. . . ! If the court, after having inspected, and receiving other evidence, be still doubtful, it has a power of refusing to determine the matter in question, and may send it to be tried by a jury. Bro. Trial, pi. 60.”
It seems that mayhem was also considered simply as .a trespass (1 Bac. Abridg. 292), and might be redressed by an action of trespass. Id. vol. 6, p. 408. On this latter page it is said:
“If the declaration mention a mayhem, the court, upon view of the mayhem, may increase the damages given by the jury (1 Roll. 572, 1, 10, 15 R.; 1 Leo. 139), though the particular part subject to mayhem be not specified. R. Hard. 408. . . . So, in battery, where the manner of the battery is described, the court, upon view, may increase the damages. Per Hale, Hard. 408.*694 So the court may increase damages, upon view and examination of Witnesses, where the declaration is general quod maihemavit, without making any description of the mayhem, if the judge of assize certify the particulars of the mayhem, or be in court and affirm, that the particulars, now proved, were given in evidence at the trial. 1 Sid. 108. But where the declaration does not mention a mayhem, nor describe the manner of the battery, the court cannot increase the damages upon view. Hard. 408.”
These excerpts seem to indicate an ancient practice of having a personal examination of an injured plaintiff, generally by the court, sometimes by the court and jury, generally without the aid of medical men, but sometimes with their aid. We here find what seems to us the germ of the present practice. It has been developed and extended in modern times like other law principles to meet the needs of-the business transacted in modern courts.
In the cases cited which recognize the doctrine it is applied with great restraint, and with a careful attention to the rights of the plaintiff. He must first be asked to submit to an examination, and the court can be applied to only after his failure to consent. The application to the court must be made before the trial and so as not to create unnecessary delay. The examination cannot be ordered upon mere motion. The application should be supported by affidavit setting forth pertinent facts and reasons. The examination cannot be had merely to obtain cumulative evidence. It must be made
If the application be granted, the plaintiff cannot be required to submit his body to the examination of a physician or surgeon selected by the defendant. The physician or surgeon must be selected by the trial judge, and he must be one of competent skill, and indifferent between the parties. And while the expense must be borne in the first instance by the defendant ■ making the application, the ,fee should be fixed in advance, and paid into court, to be paid to the expert when he files his report. The expert should file a report, stating in detail the result of his examination. This report should be open to the inspection of counsel ■ on both sides of the controversy, but not for use as evidence, except in cross-examination of such surgeon or
In the conduct of the examination, the privacy of the plaintiff’s person must be preserved as far as possible. In the case of a woman, there should be female physicians, if they are accessible. If application be made therefor the plaintiff’s own physician should be permitted to be present at the examination.
The plaintiff cannot be compelled to submit to the examination by proceedings in contempt. He is offered the alternative of a reasonable compliance with the duty of exhibiting his injuries to proper persons selected by the court, or of having his suit dismissed. He is at liberty to refuse, and on dismissal of his suit for such refusal may, as was done in the present case, test the correctness of the action of the trial judge by appeal, writ of error, or other appropriate appellate proceedings.
We may add that the defendant, in cases of this character, need not act in the dark, and thus be disabled from presenting adequate grounds for the examination sought. He can require of the plaintiff a bill of particulars (May v. Railroad, 129 Tenn., 521, 527, 533, 167 S. W., 477, L. R. A., 1915 A, 781), showing in reasonable detail the nature and effect of the injuries complained of (Curtain v. Metropolitan St. R. Co., 65 App. Div. 610, 72 N. Y. Supp., 580; Cavanagh v. Metropolitan St. R. Co., 70 App. Div., 1, 74 N. Y. Supp., 1107; O’Neill v. Interburban St. R. Co., 87 App. Div., 556, 84 N. Y. Supp., 505). While it is true, as said in the note to Bo-
We may further add that we see no objection to the practice mentioned in Union Pac. R. Co. v. Botsford, supra, and Austin & N. W. R. Co. v. Gluck, supra, to the effect that the request to plaintiff to submit to an examination by a physician or surgeon to be appointed by the court and his refusal may be proven on the trial, and commented on in argument before the jury; that is, in a case where no application for an examination is
In tbe ease before ns, few, if any, of tbe safeguards herein indicated as necessary appear to bave been employed by tbe trial judge. We cannot therefore see that be properly exercised bis discretion. This must affirmatively appear. It is insisted that specific objections should have been made in tbe trial court, pointing’ out any deficiencies in tbe prerequisites of tbe order, but we are not of that opinion. We think it should affirmatively appear that tbe precautions due tbe plaintiff were exercised by tbe trial judge before he was compelled to submit to a drastic order for examination on penalty of a dismissal of bis suit.
It is apparent, therefore, that tbe court of civil appeals reached tbe right,conclusion, and tbe judgment of that court must be affirmed, and tbe cause remanded for further proceedings.