City of Kingfisher v. Altizer
| Decision Date | 09 September 1903 |
| Citation | 74 P. 107,13 Okla. 121,1903 OK 54 |
| Parties | CITY OF KINGFISHER v. ALTIZER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. The courts of this territory cannot order a plaintiff in an action for an injury to the person to submit to a surgical examination in advance of or during the trial of the cause.
2. One may expose his body, if he chooses, with due regard to decency, and with the permission of the court; but he cannot be compelled to do so in a civil action without his consent.
3. Where a person unreasonably refuses to show his injuries when requested to do so, that fact may be considered by the jury as bearing on his good faith, as in any other case of a party declining to produce the best evidence in his power and under his control.
4. In an action against a city to recover damages for injuries resulting from a fall from a defective bridge, it is competent for the plaintiff to show that while the bridge was in the same condition accidents of a similar nature had occurred at the same place a short time prior thereto.
5. In an action to recover damages for injuries caused by a defective bridge, it is competent for the plaintiff to prove that there were other defects in the bridge than the defects that caused the accident. Also to prove the general defective condition of the bridge. This class of testimony is competent for the purpose of showing that the city authorities had knowledge of its defective condition, or that the defects had existed for such a length of time that, by the exercise of reasonable care, they could have been repaired.
6. Where answers to special interrogatories are not signed by the jury as a whole, or by their foreman, they constitute no part of the verdict, and cannot be considered for any purpose.
Error from District Court, Kingfisher County; before Justice Irwin.
Action by Sparel Altizer against the city of Kingfisher. Judgment for plaintiff, and defendant brings error. Affirmed. Pancoast, J., dissenting.
M. J Kane, for plaintiff in error.
J. C Robberts and W. C. Stevens, for defendant in error.
This was an action commenced by Sparel Altizer in the district court of Kingfisher county against the city of Kingfisher to recover damages for personal injuries sustained by himself and minor son, arising from a defective bridge which crossed Kingfisher creek on a public highway within the corporate limits of the city. It appears that the bridge was out of repair, and that the team driven by the plaintiff became frightened at a hole in the bridge, which caused them to back off of the bridge, thereby precipitating the plaintiff and his son, together with a part of the wagon and load, a distance of about 20 feet, into Kingfisher creek, resulting in the injuries complained of in this action. The defendant answered by way of general denial, and further denied that the city exercised any control over said bridge within the limits of said city, and that said bridge was not located within a public highway of said city, and was not recognized or accepted as such. To this answer the plaintiff filed a reply consisting of a general denial. Upon the issues thus joined the cause was tried to a jury, and a verdict returned in favor of the plaintiff, and judgment entered in accordance therewith. The defendant appeals.
The first error assigned is that the petition does not state facts sufficient to constitute a cause of action. There is no merit in this assignment of error. It is true that the petition contains a number of paragraphs, but it states but one cause of action. It is in all respects sufficient, and the objection to the introduction of testimony on the ground that it did not state facts sufficient to constitute a cause of action was properly overruled.
It is next claimed that the court erred in refusing to issue an order before the trial requiring the plaintiff and his son to submit to an examination by a physician other than the regularly employed physician of the plaintiff. The court refused to make such an order, and the defendant duly excepted. During the progress of the trial the defendant renewed his application to the court for an order requiring the plaintiff and his son to submit to examination by some reputable physician other than the regularly employed physician of the plaintiff, and the court again refused to grant the order, to which the defendant excepted, and assigns the same as error. The decisions of the state courts are not uniform upon this question, but it seems that the weight of authority upholds the exercise of such power by the court under reasonable restrictions. But it seems that even the states that follow this rule recognize the doctrine that a wide discretion is lodged in the trial court, which justifies a refusal to compel an examination of the person where the necessities of the case are not such as to demand it, or where the sense of delicacy of the party may be offended by subjecting him to such an examination. On the other hand, the Supreme Court of the United States, in the case of Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 11 S.Ct 1000, 35 L.Ed. 734, and several of the state courts, have denied this power. In Union Pacific Railway Co. v. Botsford, Mr. Justice Gray, in delivering the opinion of the court said: ...
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