Aspy v. Botkins

• Decision Date: 27 February 1903
• Docket Number: 19,992
• Parties: Aspy v. Botkins
• Court: Indiana Supreme Court

66 N.E. 462

160 Ind. 170

Aspy v. Botkins

No. 19,992

Supreme Court of Indiana

February 27, 1903

From Adams Circuit Court; D. D. Heller, Judge.

Action by Isabelle Botkins against Hiram M. Aspy. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Affirmed.

R. S Peterson, C. O. France and C. J. Lutz, for appellant.

D. B Erwin and D. E. Smith, for appellee.

OPINION

Gillett, J.

Appellee 's amended complaint charged appellant, a physician and surgeon, with negligence in the treatment of an injury that appellee had received in and about her right knee. A demurrer to said pleading, on the ground that it failed to state sufficient facts, was overruled, and appellant excepted. On issue joined, there was a trial that resulted in a verdict for appellee. Appellant filed a motion for a new trial, but his motion was overruled, and judgment was rendered for appellee upon the verdict. The assignments of error duly present the questions that we will hereafter discuss.

Appellant's counsel first present the question as to the sufficiency of the averment in the amended complaint as to appellee's non-contributory negligence. If the nature of the action is such as to bring it within the provisions of the act of February 17, 1899 (Acts 1899, p. 58 § 359a Burns 1901), it is not material that appellee has unnecessarily sought to anticipate the defense, as the only contention upon this point is that the pleading does not go far enough sufficiently to charge that the injury of which she complained was occasioned without her contributory fault. The act referred to, so far as it is necessary to set it out, provides: "That hereafter in all actions for damages brought on account of the alleged negligence of any person, copartnership or corporation for causing personal injuries, or the death of any person, it shall not be necessary for the plaintiff in such action to allege or prove the want of contributory negligence on the part of the plaintiff, or on the part of the person for whose injury or death the action may be brought." What is meant by the words, "actions for damages brought on account of the * * * negligence of any person * * * for causing personal injuries?" The phraseology is awkward. Bearing in mind, however, that the title of the act relates to pleadings "in actions for damages for injuries * * * caused by * * * negligence," and that the act is remedial, and designed to change in part a rule of pleading, the correctness of which was originally doubtful, we think that we are justified in construing the act as though the General Assembly had omitted the word "for," as it is used before the word "causing." The subject-matter is actions for negligence resulting in injuries to the person. The cause is the negligence; the effect is the injury. Thus construing the act, it was not necessary that the complaint in question should have anticipated what the statute has made a matter of defense.

While appellant was upon his case in chief, and one of his attorneys was examining a physician and surgeon called as a witness in his behalf, such attorney made the request that the witness be allowed to examine appellee's right knee in the presence of the jury, that he might testify as to the condition of such knee at that time. Objection was made to the granting of this request, and the court refused so to order. Where the ends of justice require it, it is the duty of the court, upon a timely application, to grant a reasonable request to have the plaintiff in a personal injury case, on the penalty of a nonsuit, submit to a physical examination with reference to the injury he claims to have sustained. City of South Bend v. Turner, 156 Ind. 418, 54 L. R. A. 396, 83 Am. St. 200, 60 N.E. 271. The right is not, however, coextensive with the power of cross-examination, and some latitude of discretion must be recognized as existing in the trial court. Each case must rest on its own foundation, and the defendant who complains, upon appeal, that the trial court abused its discretion, in refusing to make the order, must be able to present a case where it is plain that the request should have been granted. We are satisfied that error does not appear in the present instance, for the reason, if for no other, that it required the appellee, a woman, to make a quasi public exposure of her person. It is true that in this case the appellee subsequently offered to exhibit her limb to the jury, but this did not operate to make the prior ruling improper. In announcing such ruling the court said: "At this present time I will not grant the request." The motion should have been made after appellee offered to expose her limb, to present any question.

On the objection of appellee, the court excluded portions of the testimony of certain physicians and surgeons, called as witnesses by appellant, on the ground that such matters were privileged within the statute. Appellee called on these persons for examination and treatment after the service of appellant was at an end, and it does not even appear that he was present or had any knowledge of her purpose to consult them. The case does not fall within the ruling announced in Lane v. Boicourt, 128 Ind. 420, 25 Am. St. 442, 27 N.E. 1111.

While appellant was introducing evidence upon his own behalf, his counsel called appellee to the stand, and asked her...