Austin & N. W. R. Co. v. Cluck

• Decision Date: 14 December 1903
• Citation: 77 S.W. 403
• Parties: AUSTIN & N. W. R. CO. et al. v. CLUCK.
• Court: Texas Supreme Court

Page 403

77 S.W. 403

AUSTIN & N. W. R. CO. et al. v. CLUCK.

Supreme Court of Texas.

December 14, 1903.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by John O. Cluck against the Austin & Northwestern Railroad Company and others. From a judgment of the court of Civil Appeals (73 S. W. 569) affirming a judgment for plaintiff, defendants bring error. Reversed.

S. R. Fisher and Baker, Botts, Baker & Lovett, for plaintiffs in error. John Dowell and H. N. Swain, for defendant in error.

BROWN, J.

From the opinion of the honorable court of Civil Appeals we copy the following statement of the facts as found by that court:

"This is a suit for damages caused by the plaintiff's falling into a well dug, operated, and controlled by the Austin & Northwestern Railroad Company. There was a jury trial, resulting in a verdict and judgment for the plaintiff for $2,000, and the defendants have appealed.

"The testimony shows that the Houston & Texas Central Railroad Company, since the accident occurred, has succeeded to all the rights and liabilities of the Austin & Northwestern Railroad Company, and, if one company is liable, both are. The accident occurred at night, and the verdict of the jury involves a finding that the Austin & Northwestern Railroad Company was guilty of negligence in failing to keep the well properly covered, and that the plaintiff was not guilty of contributory negligence, as charged in the answer of the defendants, and that, as a direct result of the defendants' negligence, the plaintiff was injured to the extent of $2,000. The record contains evidence sufficient to support all of these findings, and therefore the objections to the verdict are overruled.

"The plaintiff charged in his petition that as a result of his falling in the well he was permanently injured in his back, sides, kidneys, hips, hip joints, spine, bladder, stomach, and bowels. Within proper time the defendants made a motion, stating that the plaintiff had been examined by two physicians of his own selection, who would testify in his behalf; that he had not been examined by physicians selected by the defendants, or by any other physicians; and requested the trial court to appoint a committee of two or more competent physicians, and compel the plaintiff to submit to an examination by the physicians so appointed, in order that the defendants might have the benefit of the testimony of such physicians. In support of the motion it was shown that the plaintiff had refused to consent to the appointment of such committee and to the examination requested. The court overruled the motion, and that ruling is assigned as error."

The plaintiff in error asserts that it had the right at the trial to have the court appoint a committee of physicians to make a physical examination of the defendant in error to qualify them to testify before the jury as to the injuries received by Cluck, and their effect. The right to have such examination is supported by the greater number of decisions of the courts of the states of this Union and by the text-writers. The following cases support the right asserted: R. & D. Ry. Co. v. Childress, 82 Ga. 719, 9 S. E. 602, 3 L. R. A. 808, 14 Am. St. Rep. 189; Shepard v. M. P. Ry. Co., 85 Mo. 629, 55 Am. Rep. 390; Alabama, G. S. Ry. Co. v. Hill, 90 Ala. 71, 8 South. 90, 9 L. R. A. 442, 24 Am. St. Rep. 764; White v. Milwaukee City Ry. Co., 61 Wis. 536, 21 N. W. 524, 50 Am. Rep. 154; A. T. & S. F. Ry. Co. v. Thul, 29 Kan. 466, 44 Am. Rep. 659; Schroeder v. C. R. I. & P. Ry. Co., 47 Iowa, 375; Sibley v. Smith, 46 Ark. 275, 55 Am. Rep. 584; M. & M. T. Co. v. Baily, 37 Ohio St. 104; Lane v. S. F. & N. Ry. Co., 21 Wash. 119, 57 Pac. 367, 46 L. R. A. 153, 75 Am. St. Rep. 821; Wanek v. City of Winona (Minn.) 80 N. W. 851, 46 L. R. A. 448, 79 Am. St. Rep. 354; Graves v. City of Battle Creek, 95 Mich. 266, 54 N. W. 757, 19 L. R. A. 641, 35 Am. St. Rep. 561; City of South Bend v. Turner, 156 Ind. 418, 60 N. E. 271, 54 L. R. A. 396, 83 Am. St. Rep. 200; Brown v. C. N. & St. P. Ry. Co. (N. D.) 95 N. W. 153. The Supreme Court of Missouri first held that the courts had no power to compel a party to a civil case to submit to a physical examination. Loyd v. H. & St. Joe R. R., 53 Mo. 515. After vacillating and qualifying their decisions in various particulars, that court, in Shepard v. M. P. Ry. Co., before cited, announced the doctrine contended for by the railroad company in this case. The decisions of the Supreme Court of the state of Indiana cover all phases of this question from an absolute denial to the assertion of the right in a qualified sense as announced in the case of City of South Bend v. Turner, above cited. That case has been since greatly qualified, and their decisions are in such conflict on the question that they are of little value as authority. The case of R. & D. Ry. Co. v. Childress, 82 Ga. 719, 9 S. E. 602, 3 L. R. A. 808, 14 Am. St. Rep. 189, rests upon the following statutory provision: "Every court has power to control in furtherance of justice the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto." This statute authorized the examination in the state of Georgia; hence that case is not authority upon the question of power under the common law. The authorities above stated, as well as many cases which we have not cited, fully sustain the conclusion of the Supreme Court of Indiana in the case of City of South Bend v. Turner, which is embodied in the following propositions: "(1) That trial courts have the power to order the medical examination by experts of the injured parts of a plaintiff who is seeking to recover damages therefor; (2) that a defendant has no absolute right to demand the enforcement of such an order, but the motion therefor is addressed to the sound discretion of the trial court; (3) that the exercise of such discretion is reviewable on appeal, and correctible in cases of abuse; (4) that the examination should be applied for and made before entering upon the trial, and should be ordered and conducted under the direction of the court, whenever it fairly appears that the ends of justice require a more certain ascertainment of important facts, which can only be disclosed or fully elucidated by such an examination, and such an examination may be made without danger to the plaintiff's life or health or the infliction of serious pain; (5) that the refusal of the motion, when the circumstances appearing in the record present a reasonably clear case for the examination under the rules stated, is such an abuse of discretion in the trial court as will operate to reverse a judgment for the plaintiff; (6) that such an order may be enforced, not by punishment as for a contempt, but by delaying or dismissing the proceeding."

Counsel for the defendant in error deny the authority of the court to require the plaintiff in this case to submit to a physical examination by a committee to be appointed by the court, in which they are supported by these authorities: Parker v. Enslow, 102 Ill. 279, 40 Am. Rep. 588; McQuigan v. D. L. & W. Ry. Co., 129 N. Y. 50, 29 N. E. 235, 14 L. R. A. 466, 26 Am. St. Rep. 507; Stack v. N. Y., etc., Ry., 177 Mass. 155, 58 N. E. 686, 52 L. R. A. 328, 83 Am. St. Rep. 269; P. D. & E. Ry. Co. v. Rice, 144 Ill. 232, 33 N. E. 951; Roberts v. O. & L. C. Ry. Co., 29 Hun, 154; U. P. Ry. Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct. 1000, 35 L. Ed. 734. The question has been before this court in these cases: I. & G. N. Ry. Co. v. Underwood, 64 Tex. 463; M. P. Ry. Co. v. Johnson, 72 Tex. 95, 10 S. W. 325; G. C. & S. F. Ry. Co. v. Norfleet, 78 Tex. 321, 14 S. W. 703; G. C. & S. F. Ry. Co. v. Butcher, 83 Tex. 309, 18 S. W. 583. In each case this court declined to decide the question now before us; therefore it is practically a new one, which we must determine by the weight of authority, or upon the sounder reasoning, as derived from the provisions of our Constitution, the statutes, and the common law.

After citing a number of cases to support their decision in the case of City of South Bend v. Turner, the Supreme Court of Indiana said: "These cases assert the doctrine that courts are instituted by the state to administer impartial justice to contending parties. In such contests it is the duty of the court to bestow upon the litigants equal and exact justice. This cannot be done without the court first obtaining the exact and full truth concerning the matters in controversy. Hence from this duty of the court to dispense exact justice is essentially implied all power necessary to its performance, which includes the power to make subservient to its order all persons and things that will afford the most reliable evidence." That honorable court gives no source from which it is claimed the courts derive the power to compel a party to submit to examination, but asserts that the duty to administer justice implies "all power necessary to its performance, which includes the power to make subservient to its order all persons and things that will afford the most reliable evidence." If this proposition be well founded, then, indeed, the power of a court over the persons of parties who apply to it for adjustment of their rights is unlimited. This statement of judicial power is too broad to be accepted as correct, but that line of decisions cannot be sustained by less comprehensive authority. The point we wish to call attention to is that the court does not claim to derive its authority from either the common law, the Constitution of that state, or from the statutes of Indiana. Comment upon City of South Bend v. Turner is equivalent to a comment upon the other cases, because it is perhaps the best reasoned of all, and fairly represents them.

Article 5, § 8, of the Constitution of this state, defines the jurisdiction and powers of the district courts in the following language: "The district court shall...