City of Cedartown v. Brooks

• Decision Date: 24 December 1907
• Docket Number: 106.
• Parties: CITY OF CEDARTOWN v. BROOKS.
• Court: Georgia Court of Appeals

59 S.E. 836

2 Ga.App. 583

CITY OF CEDARTOWN v. BROOKS.

No. 106.

Court of Appeals of Georgia

December 24, 1907

Syllabus by the Court.

A municipal corporation is bound to keep its streets and bridges in a reasonably safe condition for travel, and there is no error in so charging the jury. There was no error in the admission of evidence or in the instructions to the jury alleged to be erroneous.

[Ed Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations,§§ 1612-1615.]

It is within the discretion of the trial judge, upon a proper showing made therefor and at the instance and expense of the defendant in the action, to require a plaintiff, suing for physical injuries, to submit to an examination by competent physicians in order to ascertain the nature and extent and probable duration of the injury, and to afford means of proving the same at the trial of the cause. Richmond & Danville R. Co. v. Childress, 82 Ga. 719, 9 S.E. 602, 3 L.R.A. 808, 14 Am.St.Rep. 189. It follows that it is likewise within the discretion of the judge to refuse to require such examination, and this discretion will not be controlled unless abused.

[Ed Note.-For cases in point, see Cent. Dig. vol. 15, Damages, § 531.]

Proper exception must be taken to such refusal on the part of the trial judge before it can be considered by this court.

(Per Hill, C.J., and Powell, J.) It is error for the court to refuse to permit the defendant, in a suit for alleged permanent personal injuries, to prove that the plaintiff had refused to allow a committee of competent, disinterested physicians to make a reasonable physical examination, upon a timely request therefor, in order that the extent of the injury might be ascertained.

(Per Russell, J., dissenting). (a) It is not assigned as error that the court abused its discretion in declining to compel a physical examination of the plaintiff in this case. In the absence of exception thereto, the exercise of a sound judicial discretion, by a trial judge, will be presumed. The discretion of the trial judge having been properly exercised in the case, the reasons of a plaintiff for refusing to allow a physical examination of her person (said refusal being in accordance with the order of the court) become immaterial and irrelevant. A physical examination should not be ordered except upon a showing of its necessity, and, when the showing made to the trial judge is insufficient to warrant judicial interference in furtherance of justice, the fact that a plaintiff does not waive her right of personal inviolability raises no presumption prejudicial to her good faith in her claim for damages. The exercise of judicial discretion is not reviewable by jury trial.

(b) Unless the exercise of judicial discretion can be questioned in a trial of the main case before a jury, evidence that the plaintiff refused to submit to a physical examination tends only to prejudice unfairly a plaintiff's case where the judge has declined to order such examination; and thereby is subversive, rather than in furtherance, of justice. Unless an examination has been ordered by the judge and compliance with the order has been refused by the plaintiff, the subject is irrelevant and immaterial. The whole matter of such examination, including the grant or refusal of an order for an examination, and the effect of the refusal of a plaintiff to comply with such order, as well as the penalty to be inflicted for such refusal, is within the discretion of the trial judge, and of no concern to the jury.

(c) Regardless of the rejection of testimony, the verdict is authorized by the evidence, and a new trial should not be granted.

Error from City Court of Polk County; F. A. Irwin, Judge.

Action by M. J. Brooks against the city of Cedartown. From a judgment for plaintiff, defendant brings error. Reversed.

W. C Bunn, Jas. K. Davis, and W. H. Trawick, for plaintiff in error.

Seaborn & Barry, Wright, Jones & Hutchens, and W. W. Mundy, for defendant in error.

RUSSELL J.

It is my peculiar fortune, in the division of our labor, to deliver the opinion of the court in this case, while I dissent from its judgment. My colleagues and myself are agreed as to all of the grounds of the motion for new trial except one. The majority think the lower court erred in one respect, and that a new trial should result. With all deference to my associates, it is my opinion that the trial judge did not err in repelling the testimony as to the refusal of the plaintiff to submit to a physical examination at the request of the defendant. Furthermore, I think, even if the court did err in this respect, that the verdict for the sum of $1,250 is so amply supported by the evidence that the error is not sufficiently grave to require another trial. From the respect I feel for the opinion of my colleagues, I would cheerfully forego the expression of my views, were I not convinced that the decision of the majority upon the subject on which we differ is likely to be injurious to that dignity and respect which is essential to the usefulness of a judicial tribunal, and may cause the introduction into many trials of personal issues, which are always prejudicial and oftentimes entirely incompatible with an impartial trial. Any door opened to passion affords an easy exit for the spirit of judicial poise which should characterize and control the functions of a jury. Those grounds of the motion upon which we are all agreed will first be dealt with, and I shall then present the reasons for my nonconcurrence in the judgment of reversal.

Mrs. M. J. Brooks brought an action against the city of Cedartown for personal injuries sustained by her in jumping from a buggy in which she was being driven across a bridge on Main street, in said city. Upon the trial of the case, the jury rendered a verdict in favor of plaintiff for $1,250. The defendant made a motion for new trial. The motion was overruled, and thereupon defendant excepted, and brings this writ of error. In her petition the plaintiff alleges that on the 10th day of March, 1904, she was riding along the streets of Cedartown in a buggy drawn by two horses. As said buggy was crossing a bridge, known as "Main Street Bridge," the foot of one of the horses passed through and caught in the flooring of said bridge, and thereupon both horses became frightened, and unmanagable. Fearing she would be thrown from the buggy, the plaintiff jumped therefrom to protect herself, and in so doing sustained injuries which she alleges are permanent. She alleged that on account of said injuries she has endured great pain and suffering, and asks damages against the city for $20,000. The defendant filed its answer, denying liability, and also demurred. Subsequently to the return term of the court (the record failing to reveal whether in term time or vacation) the defendant presented a petition to the judge of the city court of Polk county praying that the court appoint a committee of competent physicians to act in conjunction with the plaintiff's physician to examine into the physical condition of plaintiff. Upon said petition, the judge of said court passed an order naming three physicians in accordance with the prayers of said petition, and the other provided that said committee should act in case plaintiff consented to be examined. At the January term, 1906, the defendant presented an additional petition, partially in the form of an amendment, substantially the same as the one heretofore mentioned, stating that the plaintiff had refused to consent to being examined by the committee appointed. In this latter petition the defendant offered to pay the cost of such examination, etc. The record does not disclose any order by the court refusing to require the plaintiff examined by said committee, as provided for in said supplemental petition.

The evidence for plaintiff was substantially as follows: On Sunday, July 10, 1904, she was riding in a buggy with her husband, accompanied by two small children and a baby. On their drive they safely crossed Main Street Bridge, in the city of Cedartown. Returning home, however, when they had driven upon this bridge, one of the horses hitched to the buggy became frightened at a patch on the bridge floor, shied to the right, and the right foot of the left horse went through the bridge floor. The bridge had recently been repaired by an employé of the city; but the planks used for doing the patching were old and partially rotten at the time they were placed over the hole. It was when the horse stepped upon one of these rotten patches that its foot went through the bridge floor. The plaintiff and her husband jumped from the buggy, the former to avoid being thrown from the buggy and the latter to lift out the children, and loose the horses from the buggy. After they had alighted, assistance came, the harness was cut, the horses taken loose from the vehicle, and after a considerable struggle the horse extricated its foot from the hole. The piece of plank used to make the patch was about 12 inches wide and about 2 feet long. The patching was done by nailing it over the floor where a hole had worn into it. The flooring used had originally been about two inches thick, but had worn down to about one-fourth of an inch in thickness. The husband of the plaintiff crossed the bridge four times a day, being a rural mail carrier. Both testified that ever since the date of the injury she had suffered pain. She was pregnant at the time, some three months advanced. On the night of the injury she came near having a miscarriage. A physician was called in next morning. He gave her internal treatment for prevention of the miscarriage. She continued to pass blood until the 20th or 21st of August following, at which time she had a miscarriage. Sh...