Atlantic Coast Line R. Co. v. Dees

• Decision Date: 08 December 1908
• Citation: 56 Fla. 127,48 So. 28
• Parties: ATLANTIC COAST LINE R. CO. v. DEES et al.
• Court: Florida Supreme Court

48 So. 28

56 Fla. 127

ATLANTIC COAST LINE R. CO. v. DEES et al.

Florida Supreme Court, Division A.

December 8, 1908

Error to Circuit Court, Hernando County; William S. Bullock, Judge.

Action by Stella Dees, joined by her husband, William E. Dees against the Atlantic Coast Line Railroad Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Section 3151 of the General Statutes of 1906, relating to the physical examination of the injured party in all actions brought in the courts of this state to recover damages for personal injuries alleged to have been sustained, makes it discretionary with the trial court to require such examination, and an order of such court denying the motion or application of the defendant for such physical examination will not be disturbed by an appellate court unless an abuse of discretion is clearly made to appear.

Where an application is made by the defendant for the physical examination of the plaintiff, in an action brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, under section 3151 of the General Statutes of 1906, prior to the trial of the case or before any evidence has been adduced, and the trial court refused such application, without prejudice, however, to renew the same during the trial, thereby evincing a willingness to grant the same if it was made to appear to be necessary to ascertain the real condition of the plaintiff and such application was not subsequently renewed during the trial, the court may well have concluded that the defendant abandoned it. In such a case no abuse of the discretion expressly vested in the trial court by such statute has been shown. Valid reasons which do not appear in the transcript may have existed why such physical examination should not have been made at the time it was applied for.

Where a witness, who has been introduced on behalf of the plaintiff in an action brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, has testified that he is a physician engaged in general practice, has resided in a certain designated town in the state for four years, and that the plaintiff has been his patient for some months past, a proper and sufficient foundation has been laid to warrant the witness being permitted to testify as to what symptoms he found when he was first called to see such patient.

When a witness is offered either as an expert or a skilled witness it is for the trial court to determine whether or not the witness has been shown to possess the requisite qualifications and special knowledge to warrant his so testifying, and the decision of such trial court is conclusive upon this point, unless it appears from the transcript to have been erroneous or to have been founded upon some error in law.

Where an instruction, as far as it goes, states a correct proposition of law, but is defective because it fails to qualify or explain the proposition it lays down in consonance with the facts of the case, such defect is cured if subsequent instructions are given containing the required qualifications or exceptions. It is not required that a single instruction should contain all the law relating to the particular subject treated therein.

In determining the correctness of charges and instructions, they should be considered as a whole, and if, as a whole, they are free from error, an assignment predicated on isolated paragraphs or portions, which, standing alone, might be misleading, must fail.

It is the duty of a party resorting to an appellate court to make the errors complained of clearly to appear, if they in truth exist, every presumption being in favor of the correctness of the rulings of the trial court. Unless the error assigned is so glaring or patent that no argument is needed to demonstrate it, counsel should call the attention of the court to the specific grounds upon which the error is based stating his reasons therefor, and citing the authorities relied upon to support the same.

In an action brought by a passenger against a railroad company to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, and such passenger was, at the time the injuries were received, suffering from some disease or illness which tends to aggravate the injuries, such passenger's previous infirmity will not excuse the defendant carrier from answering in damages to the full extent of all the injuries caused by such negligence, and the fact that such carrier was not informed of the passenger's condition will make no difference.

A requested instruction, even though it may embrace correct legal principles, is properly refused when such principles have been fully covered by other instructions or charges given in the case.

Where one of the grounds of the motion for a new trial is that the amount of the verdict is excessive, and the trial court has denied such motion, in passing upon an assignment predicated thereon, an appellate court will not disturb the verdict on such ground, unless the amount is such as to shock the judicial conscience, or as to indicate that the jury must have been unduly influenced in some way, or swayed by passion or prejudice.

COUNSEL

R. A. Burford and G. C. Martin, for plaintiff in error.

Davant & Davant, for defendants in error.

OPINION

SHACKLEFORD, C.J.

This is an action instituted by the defendants in error against the plaintiff in error, in the circuit court for Hernando county seeking to recover damages for personal injuries received by Stella Dees, one of the defendants in error, alleged to have been occasioned by the negligence of the plaintiff in error. A trial was had before a jury, which resulted in a verdict in the sum of $2,500, in favor of the plaintiffs. The defendant seeks to have the judgment entered thereon reviewed and tested here by writ of error, returnable to the present term.

The amended declaration contains two counts, to which the defendant filed the plea of not guilty, upon which the plaintiffs joined issue. Before pleading to the amended declaration, the defendant had interposed a demurrer thereto, which was overruled, and which ruling forms the basis for the first assignment. It is, however, expressly abandoned here, and we do not set forth the declaration, as no point is made thereon.

The second assignment is that 'the court erred in overruling and denying the defendant's petition or motion for an order requiring the plaintiff, Stella Dees, to submit to a physical examination made on the 16th day of April, A. D. 1907.'

We find that the issues in the case were made up on the 9th of March, 1907, and, according to the bill of exceptions, that at the spring term of such court, on the 16th day of April, 1907, the defendant filed a motion for an order requiring the plaintiff to submit to a physical examination, but, so far as is disclosed, no order was made thereon, and, in the absence of an order denying the same and an exception noted thereto, there is nothing upon which to predicate error, hence this assignment must fail. The bill of exceptions shows the following proceedings:

'Now comes the defendant by its attorneys, R. A. Burford and G. C. Martin, and moves the court for an order requiring Mrs. Stella Dees, the plaintiff in the case, to submit to such physical examination of her person as shall be reasonably sufficient to determine her physical condition at the time of trial, and the nature and extent of the alleged injuries she claims to have received, as alleged in the amended declaration. R. A. Burford & G. C. Martin, Attorneys for the Defendant.'

And at the fall term of said circuit court, to wit, on November 11, 1907, said motion was renewed and again presented, and thereupon, on the 19th day of November, 1907, during a term of said court, said motion came on to be heard, and the court thereupon made the following order, denying said motion: 'This cause coming on to be heard on motion of defendant's attorney on the preliminary call of the civil docket for an order for a physical examination of the plaintiff, and the same having been considered by the court, and the court being advised, and no facts or circumstances are shown from which it is made to appear that it is necessary for such examination to be made, when it is considered and ordered that said motion be denied without prejudice to renew the same, if it is made to appear that the same is necessary or expedient in the trial of said cause, and the defendant excepts. In open court, Brooksville, November 19th, 1907. W. S. Bullock, Judge.' To which ruling of the court the defendant then and there excepted.

At the spring term of the said court at which the said cause was tried, the said defendant, on the preliminary call of the civil docket, to wit, on April 21, 1908, again renewed the said motion for an order requiring a physical examination of the plaintiff, in the words of said original motion. Thereupon the court again denied said motion in the words of the original order, of date November 19, 1907. To which ruling of the court the defendant then and there excepted.

Upon these two rulings are based the third and fourth assignments which may conveniently be treated together. The right of the defendant, in an action brought to recover damages for personal injuries, to insist upon a physical examination of the plaintiff in order to determine the nature, character, and extent of such injuries and the power of the trial court to require such examination, has been the subject of much controversy in the courts, and the authorities are conflicting. See 4 Wigmore's Evidence, § 2220, especially the numerous authorities...