Carnine v. Tibbetts

• Decision Date: 21 December 1937
• Citation: 158 Or. 21,74 P.2d 974
• Parties: CARNINE v. TIBBETTS.
• Court: Oregon Supreme Court

74 P.2d 974

158 Or. 21

CARNINE v. TIBBETTS.

Supreme Court of Oregon

December 21, 1937

In Banc.

Appeal from Circuit Court, Yamhill County; Arlie G. Walker, Judge.

Action by Emma Carnine against E. N. Tibbetts and another. From an adverse judgment, the named defendant appeals.

Reversed and remanded.

James Arthur Powers, of Portland, for appellant.

R. A McCourry, of McMinnville, for respondent.

BAILEY Justice.

This action was instituted by Emma Carnine against defendants E N. Tibbetts and Roscoe S. Steward to recover damages for personal injuries suffered by her in a collision between automobiles driven by the defendants while she was a passenger in the car driven by the defendant Steward. From a judgment in her favor for $5,000 against the defendant Tibbetts the latter appeals.

The accident out of which this action arose occurred February 29 1936, on the Oregon coast highway in the business district of the town of Ocean Lake. The action was instituted in December of that year, and the sum then asked as damages was $5,000. On March 2, 1937, the plaintiff filed an amended complaint increasing her demand to $15,000, and alleging that she was severely and permanently injured and disabled as the proximate result of the negligence of the defendants.

The allegations of the amended complaint setting forth the injuries sustained by the plaintiff differ somewhat from those of the original complaint, and we here quote the allegations of the amended complaint, writing in italics the specifications which it has added to the original complaint, and replacing, within brackets, what it omits from that pleading: "A severe bruising and wrenching of her body; a severe shock to her nervous system; deep and severe bruises and contusions on her head and scalp; bruised and broken nerves and blood vessels on top of her head and in the region of her right ear; a concussion of the brain resulting in otitis media; nose bleeding; bleeding from the right ear; severe headaches; dizziness; numbness of her lower limbs; partial loss of hearing in the right ear; traumatic injuries to her neck, spine and back; breaking or loosening of the right pelvic or hip bone from the backbone (sacrum); a [serious] sacro-iliac [strain] slip, from which she has suffered, and does now continue to suffer great pain, disability and discomfort, and which has caused her to have to wear constantly a leather brace around and about her hips to hold said bones in place, all to her great discomfort and distress, from which said injury plaintiff will continue to suffer great pain, disability and discomfort throughout the remainder of her life; internal injuries to her generative organs resulting in abnormal, irregular and excessive menstrual flow."

It is further alleged, both in the original and the amended complaint, that by reason of the injuries which plaintiff has suffered she "is permanently injured and disabled and her health is permanently impaired."

The cause came on for trial on March 9, 1937. On the previous day the defendants had filed a joint motion for an order requiring the "plaintiff to submit to a physical examination by a doctor selected or chosen by the defendants, to-wit: _____, who shall submit his findings to defendants in order that the said defendants may be apprised of the physical condition of the plaintiff and thus be enabled to prepare for the trial and defense of this action, and that such examination be made on or before March 9, 1937, the date that this case has been set for trial." The motion also asked for an alternative order to the effect that "the complaint shall be dismissed" upon the noncompliance of plaintiff with the court's order requiring her to submit to a physical examination. This motion was denied on the date on which it was filed.

At the commencement of the trial, after the jury had been selected and sworn and before the opening statements had been made, the defendants orally renewed the motion previously made by them, requesting a medical examination of the plaintiff at that time or some time during the trial, "either by a doctor selected by the defendants or a doctor designated by the court." In the motion the defendants directed attention to the fact that the amount of damages requested had been increased from $5,000 to $15,000. This motion was resisted by counsel for plaintiff, on the ground that the court had already acted on the motion previously filed by the defendants, and for the further reason that the "plaintiff had been examined by a number of physicians" and that "all those doctors, at least most of them, will be here to testify to the jury in regard to her condition." It was further stated by plaintiff's counsel that, in view of the fact that she had been examined by a number of doctors called by her and because of the nature of her injuries, the plaintiff had refused to submit to an examination by other doctors. The defendants thereupon advised the court that they would be put to a great disadvantage "in trying to meet the allegations set forth in the amended complaint," and stated that it was necessary to have the plaintiff examined by some other doctor, either selected by the defendants or appointed by the court, and that there was no objection on the part of defendants to having the plaintiff's doctors present at such examination. The court, without stating any reason, denied the motion.

The first question with which we are confronted is whether or not the court has authority to require the plaintiff in a personal injury case to submit to a physical examination by medical experts either selected by the defendant or designated by the court. There is, as far as we have been able to ascertain, no express statutory authority in this state granting the court such power. Therefore, if such right does exist, it must derive from the inherent general power of the court. The question has not been directly passed upon heretofore by this court.

The Supreme Court of Missouri in 1873, in the case of Johnson v. Hoffman, 53 Mo. 504, without discussing the matter at length, decided that trial courts did not have inherent power to order a physical examination. Four years later, however, the Iowa Supreme Court in a well-considered opinion, in Schroeder v. Chicago, R.I. & P. R. Co., 47 Iowa 375, held to the contrary, stating that the object of all court litigation was as far as possible to arrive at the truth and to administer justice, and that: "It is true, indeed, that on account of the imperfections incident to human nature perfect truth may not always be attained, and it is well understood that exact justice cannot because of the inability of courts to obtain truth in entire fullness, be always administered. We are often compelled to accept approximate justice as the best that courts can do in the administration of the law. But, while the law is satisfied with approximate justice where exact justice cannot be attained, the courts should recognize no rules which stop at the first when the second is in reach."

Following that Iowa decision the states of Alabama, Arkansas, California, Colorado, Connecticut, Georgia, Indiana, Kansas, Kentucky, Maryland, Michigan, Minnesota, Missouri (which reversed its earlier ruling), Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Ohio, Pennsylvania, Tennessee, Virginia, Washington, West Virginia, and Wisconsin have reasserted the rule therein enunciated. It is unnecessary to set forth the numerous authorities from the foregoing states, as most of them, with the exception of Flythe v. Coach Co., 195 N.C. 777, 143 S.E. 865, and Woodruff v. Gilliam, 116 W.Va. 101, 179 S.E. 873, may be found collated in Lane v. Spokane Falls & Northern Ry. Co., 21 Wash. 119, 57 P. 367, 46 L.R.A. 153, 75 Am.St.Rep. 821; City of South Bend v. Turner, 156 Ind. 418, 60 N.E. 271, 54 L.R.A. 396, 83 Am.St.Rep. 200; Austin & N.W. R. Co. v. Cluck, 97 Tex. 172, 77 S.W. 403, 64 L.R.A. 494, 104 Am.St.Rep. 863, 1 Ann.Cas. 261; annotation, 51 A.L.R. 183, following the opinion in Brown v. Hutzler Bros. Co., 152 Md. 39, 136 A. 30, 51 A.L.R. 177, and prior annotations therein mentioned. See, also, 3 Jones' Commentaries on Evidence, 2d Ed., §§ 1383-1386, inclusive; 14 R.C.L. 696, § 14; 4 Wigmore on Evidence, 2d Ed., § 2220, 1 Thompson on Trials, 2d Ed., 717, § 859; 17 C.J. 1052, § 357.

The state of Washington, since its first decision on this point in the case of Lane v. Spokane Falls & Northern Ry. Co., supra, has provided by statute for the physical examination of parties before the court. Finn v. Bremerton, 118 Wash. 381, 203 P. 971. New Jersey, Delaware, and Florida are other states that have provided by legislation for such physical examination. Andrus v. Fomfara, 127 A. 788, 3 N.J.Misc. 261; Bowing v. Delaware Rayon Co., Del., 190 A. 567; State ex rel. Carter v. Call, 64 Fla. 144, 59 So. 789, 41 L.R.A., N.S., 1071. The state of New York, where the majority rule was both affirmed and denied by the inferior courts, provided by legislative enactment (Laws 1893, c. 721, amending Code of Civil Procedure, § 873) for the physical examination of a plaintiff.

The following states have announced the view that courts do not have power to order such physical examination: Louisiana, Massachusetts, Montana, Oklahoma, Texas, and Utah. See the authorities above mentioned, for citation of cases following the minority rule.

The reason for the majority rule is well stated in 3 Jones' Commentaries on Evidence, 2d Ed., § 1383, as follows "Most of the judiciary recognize that if a court is powerless to require a plaintiff to submit himself to a physical examination to the end that the truth as to the nature, effect and possible duration of his injuries may be ascertained, the administration of justice...