85 Mo. 629 (Mo. 1885), Shepard v. Missouri Pac. Ry. Co.

Citation:85 Mo. 629
Opinion Judge:HENRY, C. J.
Party Name:SHEPARD v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
Attorney:H. S. Priest with T. J. Portis for appellant. Leonard Wilcox for respondent.
Court:Supreme Court of Missouri
 
FREE EXCERPT

Page 629

85 Mo. 629 (Mo. 1885)

SHEPARD

v.

THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1885

Appeal from St. Louis Court of Appeals.

AFFIRMED.

H. S. Priest with T. J. Portis for appellant.

(1) The court erred in granting the order to examine Dr. Staples on interrogatories. (2) The court erred in refusing to order the plaintiff, under the peculiar circumstances of this case, to submit herself to an examination by competent and fit physicians and surgeons. Brown v. Brown, 1 Haggard, 523; Briggs v. Morgan, 3 Phillimore 325; Welde v. Welde, 2 Lee 580; 2 Prob. and Div. 287; 3 Prob. and Div. 126; Newell v. Newell, 9 Paige 26; Walsh v. Sayre, 52 How. Pr. 334; Schroeder v. Ry., 47 Ia. 375; Ry. v. Thul, 29 Kas. 466.

Leonard Wilcox for respondent.

(1) There was no error in granting the commission to examine Dr. Staples on interrogatories. R. S., 2157; Basket v. Toosey, 6 Madd. 261; Mitford's Eq. Pl. (1876) 241; Prackett v. Dudley, 1 Cow. 209; Weeks on Dep., sec. 176; Forrest v. Forrest, 3 Bosw. 669; 1 Greenl. Ev. (14 Ed.) sec. 320; Ducket v. Williams, 1 Crom. & J. 512. (2) The record fails to disclose any error by the court in refusing to compel the plaintiff to submit to further examination by surgeons. Lloyd v. Ry., 53 Mo. 509; 1 Greenl. Ev., sec. 560; 2 Tidd's Prac. 802; Roberts v. Ry., 29 Hun (N. Y.) 154; Parker v. Enslow, 102 Ill. 279; Cook v. Manufacturing Co., 29 Hun 643; Gartside v. Ins. Co., 76 Mo. 446; Cook v. Lalance, etc., 29 Hun 643.

HENRY, C. J.

Plaintiff sued defendant to recover for personal injuries sustained by her, occasioned by a collision of a train of defendant's cars, in which she was a passenger, with another train. On the trial she had a judgment for four thousand dollars, from which this appeal is prosecuted.

But two errors are assigned which are here relied upon by appellant: First, that the court erred in granting the order to examine Dr. Staples upon interrogatories. Second. In refusing to order plaintiff to submit herself to an examination by competent and fit physicians and surgeons. As to the first point the statute provides as follows:

" Section 2144. When a party to any suit pending in any court of record in this state, shall make application to such court, in term time, or to the judge thereof in ??on, for a commission to take the examination of witnesses, and shall support the application by affidavit and shall have given to the adverse...

To continue reading

FREE SIGN UP