Bradford v. Parrish

• Decision Date: 09 February 1965
• Docket Number: No. 40992,No. 3,40992,3
• Citation: 141 S.E.2d 125,111 Ga.App. 167
• Parties: G. B. BRADFORD v. N. A. PARRISH
• Court: Georgia Court of Appeals

Page 125

141 S.E.2d 125

111 Ga.App. 167

G. B. BRADFORD v. N. A. PARRISH.

No. 40992.

Court of Appeals of Georgia, Division No. 3.

Feb. 9, 1965.

Syllabus by the Court

1(a)(1) The discovery procedure authorized by Code Ann. § 38-2110(a) is permissive, not mandatory.

(2) The physical examination authorized may be ordered by the trial judge only on motion made and for good cause shown.

(3) What constitute 'good cause shown' rests in the broad discretion of the trial judge.

1(b)(1) The use of the discovery procedure authorized by Code Ann. § 38-2110(a) is discretionary with counsel.

(2) Counsel's failure to invoke the possibilities of discovery the Code section offers does not subject his cause to any unfavorable inferences.

(3) After a medical examination has taken place on order of court, the physician making the examination is available as a witness equally to all parties.

(4) The party examined is entitled to a copy of the medical report.

(5) The examining physician appointed by the court under Code Ann. § 38-2110(a) is an officer of the court.

(6) The trial court properly restricted plaintiff's counsel from arguing to the jury that defendant's failure to ask for a physical examination of plaintiff under Code Ann. § 38-2110(a) amounted to either an admission that the plaintiff was injured as seriously as contended or created an inference to that effect.

2. The trial court did not err in restricting the plaintiff's counsel from arguing to the jury matters relating to the liability of the defendant where the defendant had admitted liability.

This was a suit for damages for personal injuries sustained by an automobile collision. The defendant admitted liability. A verdict and judgment were entered for the plaintiff.

Plaintiff being dissatisfied with the amount of the verdict, exceptions are brought to this court by the plaintiff below assigning error on the judgment of the trial court denying the plaintiff's motion for new trial.

Walter B. Fincher, L. Paul Cobb, Jr., Atlanta, for plaintiff in error.

Woodruff, Savell, Lane & Williams, Edward L. Savell, atlanta, for defendant in error.

BELL, Presiding Judge.

1. In the motion for new trial error is urged on the refusal of the trial court to allow counsel for the plaintiff to contend in his closing argument to the jury that the failure of the defendant to have the plaintiff examined under the provisions of Code Ann. § 38-2110(a) amounted to an admission that plaintiff was injured as alleged in the petition.

The ground has no merit for at least two cogent reasons.

(a) The contention is based on the erroneous assumption that under Code Ann. § 38-2110(a) the defendant as a matter of right could have secured an order of the trial court requiring the plaintiff to undergo a physical examination by a medical practitioner. This assumption is totally without foundation in the light of the explicit language of the statute. By its clear terms the granting of an order for physical examination is permissive, not mandatory, and may be entered only for 'good cause shown.' What is sufficient to fulfill that criterion rests in the broad discretion of the trial judge. Coca-Cola Bottling Co. of Puerto Rico, Inc. v. Negron Torres, (1st Cir.) 255 F.2d 149, 153(4); Bucher v. Krause, (7th Cir.) 200 F.2d 576, 584(8); The Italia. (Gitto v. Societa Anonima Di Navigazione, Genova) (E.D.N.Y.) 27 F.Supp. 785, 786(1, 2). Although trial courts undoubtedly will liberally exercise their discretion in this area in order to secure just results, the mere presence of this discretionary power in the court precludes the assumption that one party to an action has an absolute right under this discovery provision to secure an order requiring the opposite party to undergo a physical examination.

(b) The use of the discovery procedure authorized by Code Ann. § 38-2110(a) is discretionary with counsel. Its utilization is in no sense mandatory. Counsel's failure to invoke the possibilities of discovery the provision portends does not subject his cause to any unfavorable inferences. Hoffman v. Illinois Terminal R. Co., (Mo.App.) 274 S.W.2d 591, 595(7, 8).

The statutory presumption arising from failure to produce evidence, Code § 38-119, is not applicable here for numerous reasons the most simple of which is that there can be no additional medical evidence available under this discovery provision until after an examination is had under court order. None has taken place. However, even if a court ordered examination had taken place, the results of that examination were available equally to all parties. The party examined is entitled to a copy of the medical report. Code Ann. § 38-2110(b); Shupe v. Penn. R. Co., D.C., 19 F.R.D. 144, 145(5); Lindsay v. Prince (N.D. Ohio), 8 F.R.D. 233, 235(4). Further, it has been said with truth that the examining physician appointed by the court under this provision is, for that responsibility, an officer of the court. The Italia, 27 F.Supp. 785, 786(3) supra. Occupying that status the examining physician is equally available as a witness to both parties. No presumption could arise against either party for failure to produce him as a witness. Bynes v. Stafford, 106 Ga.App. 406, 409(4), 127 S.E.2d 159.

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