Boggs v. Gosser

• Citation: 55 S.W.2d 722
• Decision Date: 12 December 1932
• Docket Number: No. 17638.,17638.
• Parties: BOGGS v. GOSSER.
• Court: Court of Appeal of Missouri (US)

55 S.W.2d 722

BOGGS v. GOSSER.

No. 17638.

Kansas City Court of Appeals. Missouri.

December 12, 1932.

Appeal from Circuit Court, Schuyler County; Walter A. Higbee, Judge.

"Not to be published in State Reports."

Suit by Mary Boggs against Lewis A. Gosser. Judgment for defendant, and plaintiff appeals.

Affirmed.

H. M. Saxbury, of Queen City, and E. E. Fogle, of Lancaster, for appellant.

Franklin & Franklin, of Macon, for respondent.

ARNOLD, J.

This is an action in damages for personal injuries. Plaintiff is the wife of John L. Boggs, a farmer, and defendant also is a farmer, both parties being residents of the same general vicinity in Schuyler county, Mo., a few miles north of Queen City in said county, a common trading point. The facts show that Federal Highway No. 63 runs in a general north and south direction from the city of Kirksville in Adair county and points further south to the Iowa state line north. This highway has a graveled surface and runs through Queen City.

On Saturday, June 20, 1931, plaintiff with her husband and small son, in a farm wagon drawn by a team of horses, left their home about sundown to drive to Queen City, a distance of about three miles. On the same day in the evening, defendant with his wife and two daughters drove to Queen City in an automobile. The two families remained in said town until about 9 or 9:30 p. m., when they started for their homes at approximately the same time, though plaintiff, her husband, and son left first. The record shows that at the time a threatening cloud had arisen in the west, exhibiting lightning, accompanied by wind. At a distance of about a mile and a quarter north of Queen City, defendant overtook the Boggs wagon which, it is admitted, carried no tail-light. There was a collision between the wagon and the automobile, the left rear wheel of the wagon and the right front fender or wheel of the automobile coming into violent contact. Plaintiff and her young son, whom she was holding in her lap, and her husband were thrown violently from the wagon of which the coupling pole and the hounds were broken, the wagon bed thrown off, and the front part of the wagon separated from the rear part, and the team bolted. Plaintiff became somewhat entangled in the debris and was injured. She was taken from the wreckage by her husband and defendant's wife, placed in an automobile, and taken back to Queen City, where she was given emergency treatment and taken home that night. The evidence shows she was thereafter bedfast for some time. This suit was instituted in the circuit court of Schuyler county to recover damages for alleged injuries.

The petition alleges the formal matters and charges negligence: (1) That defendant's automobile did not display two lighted signal lamps, so adjusted as to conform to the laws of Missouri relative thereto; (2) defendant negligently attempted to pass said wagon and team; (3) negligently failed to operate and drive said motor vehicle in a careful and prudent manner; (4) negligently failed to exercise the highest degree of care; (5) negligently failed to sound a signaling device with which said motor vehicle was equipped; (6) negligently failed to operate and drive said motor vehicle so as to pass to the left of said team and wagon, but negligently operated and drove the same against said wagon, overturning the same, throwing plaintiff, her husband, and child out of said wagon onto the ground; and that by reason of said negligence, the plaintiff has been greatly and permanently injured "* * * in her head, body and limbs, and she has ever since suffered great bodily pain and mental anguish; that by reason of defendant's said negligence, the plaintiff has been confined to her bed for many weeks, has been greatly bruised about her head, body and limbs; has been seriously cut and mangled, has suffered severe and permanent shock to her nervous system, and has been made a permanent cripple and invalid."

Judgment is sought in the sum of $5,000.

The amended answer admits that at the time and place mentioned in the petition, plaintiff, her husband, and child were traveling north on Highway 63, in Schuyler county, Mo., in a wagon drawn by a team of horses, and defendant was traveling northward upon said highway in an automobile; that plaintiff's horses became excited, unmanageable, and ran away, throwing plaintiff out of the wagon upon the ground; denies every other allegation of the petition. As affirmative defense the answer pleads contributory negligence, in this: That plaintiff and her husband were driving said wagon and horses after dark on the left side of the highway, astraddle the center line thereof, without any signal lamp or lantern about said wagon, and that the horses comprising said team were young, fractious, high-spirited, untractable, and at times unmanageable; that, at the time defendant approached said wagon, driving his automobile in a careful and prudent manner and exercising the highest degree of care, and at such a rate of speed as not to endanger the property, life, or limb of any person, he suddenly and unexpectedly came upon or very near said wagon; that, upon seeing plaintiff and her husband in said wagon, he immediately applied his brakes, sounded his horn several times, slowed down his car and did everything practicable and possible for him to do, and turned his car to the left of said wagon to avoid a collision; but that plaintiff and her husband paid no attention to the signals and sounding of the horn, but held to the center of the road, and, as defendant approached said wagon and team, using every means at hand and exercising every effort to pass to the left, or west, of said wagon, and after he had moved his car to the left of the center of the highway sufficient to pass said wagon without a collision, and had brought his car to a stop, the team drawing the wagon, at the sound of his horn and the approach of his car, reared up, apparently from fright, and was jerked or pulled backward by the driver of the team and the plaintiff, thus backing the wagon into defendant's automobile, the left front wheel of the wagon barely catching the right front fender of the automobile, causing the collision, breaking the coupling pole of the wagon, precipitating and throwing plaintiff out of the wagon upon the gravel highway, and causing the front wheels of the wagon to pass from under the front end of the wagon bed, letting the front thereof to the ground, and causing the team to become unmanageable and run away.

The reply was a general denial. Upon the pleadings thus made the cause was tried to the court and jury.

When the cause was called for trial, defendant filed application for the appointment of a medical commission to examine plaintiff to determine the true condition of her health and the nature, character, and extent of her injuries; whether the same originated from the causes mentioned in her petition, suggesting one of said commission be selected by plaintiff and another by defendant, with the privilege of those selected, if they so desired, to select a third; that said examination be made at the cost of the defendant; and that the physicians so selected be permitted to testify at the trial as to the results of their examination on behalf of either party, or both. This was objected to by plaintiff and the court sustained the objection, but appointed three disinterested physicians of his own choosing, all of Schuyler county, Mo. Thereupon plaintiff filed motion to set aside the order of the court appointing said commission, but this was overruled, and this ruling of the court is assigned as error. There was a verdict and judgment for defendant, signed by eleven of the jurors, and judgment was accordingly entered. A motion for new trial was overruled, and plaintiff has appealed.

Eleven assignments of error are presented, all of which are embraced under plaintiff's points and authorities. The first point urged is the court erred in appointing a commission of physicians to make an examination of plaintiff as to her physical condition; that it is not the absolute right of a defendant to demand such a commission. Owens v. Kansas City, St. J. & C. B. Ry. Co., 95 Mo. 169, 8 S. W. 350, 6 Am. St. Rep. 39. It is also urged in this connection that the appointment of a medical commission was untimely, and in support of this charge plaintiff cites Graham v. Sly, 177 Mo. App. 348, 164 S. W. 136. An examination of the opinion in that case discloses the trial court refused to appoint a commission upon the ground the application was untimely because defendant, before making the application, had risked two mistrials and a change of venue therein, without asking for a medical examination; and a third trial was near an end before the request was filed; that defendant knew the nature of plaintiff's alleged injuries. For these reasons the request was denied. This court, in that case, sustained the ruling of the trial court. That opinion, however, has no application to the case at bar because the facts are not similar. Here, there had been no previous trial of the cause, and outside the pleadings, defendant was not advised as to the physical condition of plaintiff. It is true that a physical examination by disinterested physicians is not an absolute right of a defendant. The law invests the trial court with authority to appoint physicians to make a physical examination of the plaintiff in a personal injury suit. Defendant cannot demand it as a matter of right, but the court within its discretion may make such appointment in furtherance of justice. Graham v. Sly, 177 Mo. App. 348, 164 S. W. 136; Sidekum v. Wabash, St. L. & P. Ry. Co., 93 Mo. 400, 403, 4 S. W. 701, 3 Am. St. Rep. 549; Norton v. St. Louis & H. Ry. Co., 40 Mo. App. 642, 646. It is the law that when the court makes such appointment he does so because, in his discretion, the case calls for the opinion of disinterested and unbiased physicians, not friends...