Bailey v. Fisher

• Decision Date: 24 June 1929
• Docket Number: 11,244
• Citation: 11 La.App. 187,123 So. 166
• Court: Court of Appeal of Louisiana — District of US
• Parties: BAILEY v. FISHER

123 So. 166

11 La.App. 187

BAILEY v. FISHER

No. 11,244

Court of Appeals of Louisiana, Orleans

June 24, 1929

Appeal from Civil District Court, Parish of Orleans, Division "A". Hon. Hugh C. Cage, Judge.

Action by Paul H. Bailey against Carl A. Fisher.

There was judgment for plaintiff and defendant appealed.

Judgment affirmed.

Wm Winans Wall, of New Orleans, attorney for plaintiff appellee.

Gordon Boswell, of New Orleans, attorney for defendant, appellant.

OPINION

JANVIER, J.

Plaintiff, while standing on the sidewalk at the corner of Carondelet street and Jackson avenue, at about 10 o'clock in the morning, was run into, and knocked against an iron fence, by an automobile driven by defendant. The automobile skidded, mounted the sidewalk, and struck defendant when he was near the property line. He brings this action in an effort to recover reimbursement for his personal injuries for which he claims $ 5,663, and for the value of his trousers, which were ruined, and the loss of an umbrella, which was destroyed. For these last mentioned items he claims $ 13.50. His total claim, therefore, is for $ 5,676.50.

Defendant, in his answer, admitted the occurrence, but denied responsibility therefor, contending that the path of his automobile, while he was entirely free from fault or negligence, was suddenly crossed by a truck, and that the necessary and proper application of his brakes caused his car to skid and swerve and mount the sidewalk, on which plaintiff was standing.

Prior to the trial in the court below, defendant caused his physician to call on plaintiff for the purpose of making a physical examination to determine the extent of the injuries. Plaintiff, apparently through misunderstanding, refused to allow the physical examination to be made.

At the trial, defendant's counsel objected to the introduction of any medical testimony by plaintiff's physicians, contending that, under the doctrine announced by our Supreme Court in Grant vs. N. O. Ry. & Light Co., 129 La. 811, 56 So. 897, and in Kennedy vs. N. O. Ry. & Light Co., 142 La. 879, 77 So. 777, such testimony, in view of plaintiff's refusal to submit to an examination by defendant's physician would have been ex parte, and therefore inadmissible.

The trial judge, following the pronouncements in the two cases referred to, maintained the objection and excluded the testimony. Accordingly there is in the record no testimony or evidence as the extent of plaintiff's physical injuries. That this ruling of the trial judge is correct and in accordance with the doctrine announced in the cases referred to is manifest. In the Kennedy case the court said:

"We find no fault with the ruling of the trial judge to the effect that he was without authority to require plaintiff to permit an examination of her person; but, on the other hand we do not see how the jury and the judge could reach a legal verdict and judgment against the defendant upon an 'ex parte' version of physical injuries, of the nature and character of which plaintiff permitted only the witnesses selected by herself to become informed; for, if defendants in such cases can be condemned upon that basis, they will always be at the mercy of plaintiffs, who have only to complain of injuries not visible outside of...