Alabama G.S. Ry. Co. v. Hill

• Decision Date: 19 June 1890
• Citation: 90 Ala. 71,8 So. 90
• Parties: ALABAMA G. S. RY. CO. v. HILL.
• Court: Alabama Supreme Court

8 So. 90

90 Ala. 71

ALABAMA G. S. RY. CO. v. HILL.

Supreme Court of Alabama

June 19, 1890

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

An action by appellee, Nellie C. Hill, against appellant, the Alabama Great Southern Railroad Company. The facts of the case are sufficiently set forth in the opinion. The main point discussed was on the motion made by the defendant to have the plaintiff privately examined by experts, and all the facts, circumstances, and rulings on this point are set forth in the opinion. Among other charges requested by the defendant, and which were refused by the court, was the following: "The court charges the jury that under all the evidence in this case the plaintiff is not entitled to recover exemplary damages." The court refused to give this charge, as well as the others based on the principle that in this case the plaintiff was not entitled to recover exemplary damages, and the defendant duly excepted. There was verdict and judgment for the plaintiff, and the defendant moved for a new trial, assigning many reasons on which it based the motion. The court refused to grant this motion overruling the same, and the defendant duly excepted to this ruling. The defendant now prosecutes this appeal, and assigns the various rulings of the court as error.

Edward Colston, Sam. F. Rice, and Denson &amp Wood, for appellant.

E T. Taliaferro and N. Smithson, for appellee.

McCLELLAN J.

This is an action for personal injuries alleged to have been sustained by the plaintiff, who is appellee here, in consequence of defendant's negligence, whereby a car on which plaintiff was being carried as a passenger was derailed and overturned. The injuries chiefly complained of and relied on for the recovery which was sought and had in the court below are alleged to be internal and permanent in their nature, and very grievous, painful, and dangerous. Neither the fact of their infliction nor their extent, character, or probable consequences were determinable except by expert examination of the plaintiff's person in a manner most objectionable to a young woman of delicacy and refinement, as she is shown to be. Such examination had been several times made by her attending physician, who stood ready to testify, and did testify, in her behalf as to the results of his investigation. Prior to the trial on the day the trial was entered upon, and again pending the trial, after the plaintiff and her physician and other physicians had testified, the defendant moved the court for an order requiring plaintiff to submit to an examination by a reputable and disinterested physician or physicians to be appointed by and to conduct the investigation under the direction and control of the court at the cost of the defendant. When this motion was last made, plaintiff's attending physician, Dr. Drennen, had testified fully as to her injuries, and Drs. Chew, Wyman, and Whelan, who heard his testimony, had been examined in respect to the injuries described by him, and had to a greater or less extent drawn his diagnosis in question. In support of the motion, the affidavits of three reputable and experienced physicians were put in evidence to the effect that the proposed examination would not be painful or at all hazardous; that the injuries described in the complaint, which were the same deposed to by Dr. Drennen, were not of a character to produce such nervousness as would render the examination dangerous to the life or health of the plaintiff; and that if she was able to attend the trial of her case, which she did, the plaintiff could without risk sustain the ordeal of the proposed investigation. On the other hand, two affidavits were offered against the motion,-one by Drennen, that the plaintiff was a delicate and refined female about nineteen years old, of nervous temperament, and had been rendered exceedingly nervous, even hysterical, by the shock of the accident, and the consequent ills which had since afflicted her; and that the proposed examination would involve danger to her health, though it appears from this affidavit that he himself had made "several thorough surgical examinations of the plaintiff" of the kind proposed, without any ill results therefrom. The other opposing affidavit was by one of plaintiff's counsel. He deposes to her age, delicacy of feeling, nervous temperament, low state of health, etc.; to the high standing of Drennen as a physician and surgeon, and to the facts that Drennen had made the physical examinations proposed by the motion, and would testify in regard thereto on the trial. On this estate of facts, the court severally and successively overruled the motion each time it was presented, and refused to require the plaintiff to submit to a physical examination. The propriety of this action of the court is one of the leading questions presented by this appeal.

The authorities are somewhat conflicting on the point thus presented. A pioneer case, declaratory of the power of courts to require the plaintiffs, in actions of this character, to submit themselves to physical examination by experts, a case too, which is put forward by the appellant as a leading one in support of the right which the lower court denied to it, is that of Walsh v. Sayre, 52 How. Pr. 334, decided by the special term of the superior court of New York. This case was approved by the special term of common pleas of New York in Shaw v. Van Rensselaer, 60 How. Pr. 143, in an obiter dictum, though an application for an inspection of the person was denied on the facts there presented. Subsequently the question came under review in the supreme court of that state, and Sayre's Case was, in effect, overruled, and the power of the courts to order an inspection of a plaintiff's person was repudiated and denied. Roberts v. Railroad Co., 29 Hun, 154. So that the law may be considered settled in the state of New York against the exercise of this power by the courts. In Missouri, the course and history of judicial opinion on the subject has been precisely the reverse of that exhibited in New York. The supreme court of Missouri first held that "the proposal to the court to call in two surgeons and have the plaintiff examined during the progress of the trial as to the extent of her injuries is unknown to our practice and to the law, *** and the court had no power to enforce such an order. Loyd v. Railroad Co., 53 Mo. 509. Afterwards this decision was seceded from, and the doctrine thoroughly established in that state that the trial court has the power to require the plaintiff to submit to surgical examination as to the character of the injuries complained of, but that defendant has no absolute right to demand an order for such investigation, and such examination is a matter of discretion with the court, the exercise of which will not be interfered with unless manifestly abused. Shepard v. Railway Co., 85 Mo. 629; Sidekum v. Railway Co., 93 Mo. 400, 4 S.W. 701; Owens v. Railroad Co., 95 Mo. 169, 8 S.W. 350. The power of courts to this end is denied in Illinois in a very meager, unreasoned, and unsupported opinion of the supreme court, in which the subject is dismissed with the assertion that "the court had no power to make or enforce such an order." Parker v. Enslow, 102 Ill. 272. It is believed that no other than the cases referred to can be found which deny the power of trial courts to require plaintiffs, in actions for personal injuries, to submit themselves to surgical examinations in respect thereto. Of these, one has been expressly and repeatedly overruled, another appears to have been decided without due consideration of the question and investigation of the adjudications upon it, and the third, and only other, alone remains as an authority for the non-existence of the power. On the other hand, the Missouri cases, supra, and many others, concur in the establishment of the following propositions: (1) That trial courts have the power to order the surgical examination by experts of the person of a plaintiff who is seeking a recovery for physical injuries; (2) that the defendant has no absolute right to have an order made to that end, and executed, but that the motion therefor is addressed to the sound discretion of the court; (3) that the exercise of that discretion will be reviewed on appeal, and corrected in case of abuse; (4) that the examination should be ordered and had under the direction and control of the court whenever it fairly appears that the ends of justice require the disclosure or more certain ascertainment of facts which can only be brought to light or fully elucidated by such an examination, and that the examination may be made without danger to plaintiff's life or health, and without the infliction of serious pain; and (5) that the refusal of the motion, where the circumstances present a reasonably clear case for the examination under the rule last stated, is such an...