Denver City Tramway Co. v. Roberts

• Decision Date: 01 June 1908
• Citation: 43 Colo. 522,96 P. 186
• Parties: DENVER CITY TRAMWAY CO. v. ROBERTS.
• Court: Colorado Supreme Court

96 P. 186

43 Colo. 522

DENVER CITY TRAMWAY CO. v. ROBERTS.

Supreme Court of Colorado

June 1, 1908

Appeal from District Court, City and County of Denver; P. L. Palmer Judge.

Action by Elizabeth Roberts against the Denver City Tramway Company. Judgment for plaintiff. Defendant appeals. Reversed.

This action was brought by appellee against appellant to recover damages for personal injuries suffered while she was a passenger upon one of appellant's cars in the city of Denver through the alleged negligence of appellant's employés in operating said car. She recovered a verdict and judgment for the sum of $2,000.

Several months before the trial appellant, having been refused the privilege of a surgical examination of appellee, made application to the court for an order requiring her to submit to such examination. A number of objections in writing were filed on her behalf and the court denied the motion, placing his denial, however, upon the express ground that he had no power or authority to grant the same. The motion thus denied after setting forth the reasons upon which it was based requested that she be required to submit to a physical examination by a surgeon of appellant's selection, or by one selected by the court. When the cause was called for trial and before the jury was impaneled, the application for such physical examination was renewed, but the court again denied the same. In so doing, he employed the following language: 'I can't see any good reason why the plaintiff should refuse an examination by a disinterested person. We all know that a family physician unconsciously yields somewhat to one side, and whose evidence is not as satisfactory as a disinterested surgeon. I don't think I have the power to compel the plaintiff to submit to an examination, and I shall refuse to make the order.' During the trial and when plaintiff was upon the witness stand, she was again requested to permit such an examination to be made, but refused her consent. In considering the objection of her counsel the court then employed, inter alia the following language: 'I followed a ruling that was made in this court, rather as I considered it had been settled by this court and I feel bound by it; but my sense of justice is so against it that I am going to ask for an argument on this proposition and determine it so far as I am concerned, and I say to you now that, if I make up my mind that it is the law, I don't care what any other judge has done. However, I am going to let the other court settle it. So, this being my view, I will have to sustain the objection.' This language was employed with reference to his previous declaration that he did not have power to grant the order asked, and shows that he was following, against his better judgment and 'sense of justice,' a ruling of a predecessor upon the same bench; but that in this case he would adhere to the view and let the 'other court' (court of review) settle it. The motion for an order for such physical examination and the written objections thereto filed by appellee appear in the record proper; but by inadvertence or mistake they were not incorporated into the original bill of exceptions. All of the other matters above stated however, to appear in that bill of exceptions. By a supplemental bill of exceptions or transcript filed in this court several months after the time for filing the original bill of exceptions below expired, but nearly three years before the final argument of the cause here, this motion and appellant's objections thereto were incorporated into the record. A motion was then made to strike this supplemental transcript from the record but upon the hearing was denied; leave being given, however, to renew and reargue the same in connection with the final submission of the cause. The record is quite voluminous, but, in view of the ground upon which the opinion is based, the foregoing is deemed a sufficient statement of the facts.

Charles J. Hughes, Jr., Gerald Hughes, Albert Smith, and H. S. Robertson, for appellant.

Skelton & Morrow, for appellee.

HELM, J. (after stating the facts as above).

Among the assignments of error is one that challenges the ruling below refusing to grant an order for a physical examination of appellee touching her alleged injuries by a surgeon of appellant's selection or by one of the court's selection. This action of the trial court was error, and requires a reversal of the case. It is therefore unnecessary to discuss the numerous remaining questions presented, and the present opinion will be limited accordingly.

The application for the order in question was made in due form and with reasonable diligence. It was urged several months before the trial, and again renewed when the case was called, and before the jury was impaneled. It was brought to the court's attention a third time during the progress of the trial and in connection with the cross-examination of appellee herself. Motions of this kind are addressed to the sound discretion of the trial court, and, unless there is an abuse of such discretion or unless it clearly appears that that court misconceived the law, this court will ordinarily decline to set aside the ruling thereon. In the case at bar the record shows that the court below did not exercise his discretion at all. His action was predicated exclusively upon the view that as a matter of law he possessed no legal power or authority to grant the motion or to make the order requested. His attitude in this respect was clearly announced not less than three different times and at three different periods. The complaint alleges that the injuries suffered are permanent; and a portion of the evidence offered on behalf of appellee tends to support this allegation. The nature and extent of such injuries, together with the permanency thereof, are matters to be determined largely from the testimony of skilled physicians or surgeons. The object of the court and jury is always to...