Bagwell v. Atlanta Consol. St. Ry. Co

• Decision Date: 27 January 1900
• Citation: 109 Ga. 611,34 S.E. 1018
• Parties: BAGWELL. v. ATLANTA CONSOL. ST. RY. CO.
• Court: Georgia Supreme Court

34 S.E. 1018

109 Ga. 611

BAGWELL.

v.ATLANTA CONSOL. ST. RY. CO.

Supreme Court of Georgia.

Jan. 27, 1900.

DISCOVERY — PHYSICAL EXAMINATION — REFUSAL TO SUBMIT.

An action by a father for the loss of the services of his minor daughter, occasioned by personal injuries, should not be dismissed because she, after reaching her majority, refused to obey an order of the court in which the action was pending, requiring her to submit to a physical examination of her person by a physician.

(Syllabus by the Court.)

Error from city court of Atlanta; J. D. Berry, Judge.

Action by J. W. Bagwell against the Atlanta Consolidated Street-Railway Company. Judgment for defendant. Plaintiff brings error. Reversed.

Dorsey, Brewster & Howell and Hugh M. Dorsey, for plaintiff in error.

Goodwin & Hallman, for defendant in error.

LUMPKIN, P. J. The record is voluminous and redundant, but, after relegating from it all save that which is really material, we find that the case, as now presented, turns upon the single question on which the ruling announced in the headnote is made. We do not think this question requires elaborate discussion. It would be going a great length to hold that such an action by a father should be defeated by the refusal of a daughter who, though not quite 21 years old, was practically a grown woman, to submit her person to a physician for physical examination. Certainly, if, as was alleged in this case, the physician, though eminent in his profession and a thorough gentleman, was distasteful to the daughter, it would have been placing upon the father, even if she had still been under his control, a great and painful burden to coerce her to undergo an examination, or else give up his cause of action. But that is not the case with which we are now dealing, for the record shows that the refusal upon which the judge's order of dismissal was based was made by the daughter after she had become of age. At that time her father had no right or authority to control her person or her movements. His conduct would have beenindefensible, if not criminal, if he had undertaken to compel her, against her will, to allow a physician to examine her. No humane father would, at any cost, attempt such a thing. It may be that, if he really desired the examination to take place, he might, by perfectly proper means, have induced his daughter to consent to it. Be this as it may, we are not prepared to hold that he was, in any event, bound to pursue such a course; and, moreover, it...