Depfer v. Walker
| Decision Date | 12 September 1935 |
| Citation | 169 So. 660,125 Fla. 189 |
| Parties | DEPFER v. WALKER et al.[*] |
| Court | Florida Supreme Court |
Error to Circuit Court, Sarasota County; Paul C. Albritton, Judge.
Action by Laura Alise Walker, joined by her husband, William H Walker, against Ella Depfer, a widow. From a judgment for plaintiffs, defendant brings error.
Reversed.
On Petition for Rehearing.
On Second Petition for Rehearing.
Shackleford, Ivy, Farrior & Shannon and R. W Shackleford, all of Tampa, for plaintiff in error.
John B Singeltary and Dewey A. Dye, both of Bradenton, for defendants in error.
In October, 1930, Laura Alise Walker, appellee, was injured in an automobile accident. The automobile in which she was riding at the time of the accident belonged to Ella Depfer, the appellant, and was being driven by Nora Walker, sister-in-law of appellee. In October, 1931, Laura Alise Walker instituted this action against Ella Depfer seeking to recover damages in the sum of $10,000 for her injury. A demurrer and motion for compulsory amendment of the declaration were overruled. A trial resulted in a verdict and judgment for $7,500, to which the instant writ of error was prosecuted.
Sixteen questions have been raised and argued at length in this court. To discuss them all would incur an opinion of undue length that would serve no useful purpose. On account of the inconclusiveness of the evidence to support it, the judgment will have to be reversed, so we discuss here only that question and such others as we think may become important in a second trial.
At the time of the accident appellee was being transported as the guest of appellant. The evidence discloses that not only was she a guest in the automobile of appellant at the time of the accident, but that she (appellee) had been a guest in her (appellant's) home and continued to be such for nine months after the accident.
The accident occurred in October, 1930; suit was instituted in October, 1931; and the trial took place in May, 1934. It is shown that as a result of the accident appellee received a severe laceration of the abdomen and was treated at the hospital for two weeks. From the date she left the hospital until the date of the trial she was treated various and sundry times by two other physicians. It was testified that she has been in a highly nervous condition and has developed a deafness since the accident, but it is not shown that either was induced by or was aggravated by the accident. One doctor testified that both could have been caused by the accident, but no one testified positively that they were or had any connection with it. In fact, the evidence is such that any verdict based on it must be the result of pure speculation and guesswork. A verdict ten times as large or ten times smaller would have comported with the evidence as well as the one that was rendered. Such testimony falls far short of the degree of exactitude required if a judgment based on it is to stand. There must be some reasonable basis in the testimony for the verdict and judgment.
It is next contended that the court erred in rejecting the testimony of the physician appointed pursuant to section 4968, Revised General Statutes of 1920, section 7055, Compiled General Laws of 1927, to make a physical examination of the appellee as requested by appellant.
There is no inherent authority in the courts of this state for making such examinations as are authorized by section 4968, Revised General Statutes of 1920. Said statute is the sole authority for such examinations. They are made in the sound discretion of the court, which is controlled by the circumstances of the case and the condition of the injured party. The discretion of the court in this as in other matters must be reasonably exercised. The examination may be had before or at the time of the trial, and where ordered it is the duty of the injured party to submit to it.
The physical examination as referred to by the statute contemplates any and every kind of physical examination or test that may be deemed necessary or essential to ascertain the physical condition of the one examined, to wit, a blood test, X-ray, or any physical or microscopic examination of the person, blood, urine, kidneys, heart, lungs, alimentary tract, or other element or function of the body. The court is authorized to appoint any one or more physicians or specialists that may be necessary to make such an examination or examinations to effect the purpose of the act, but all such appointees are required to testify personally as to their examination which they must make under order of the court.
It is further contended by appellant that in a personal injury case of this kind a host should be held liable to his invited guest only for gross negligence rather than for failure to exercise ordinary care.
In some jurisdictions the owner of an automobile is liable to his invited guest only for gross negligence, while in others he is liable for failure to exercise ordinary care. We recognize degrees of negligence in this state and have held the owner liable to his guest for the negligent operation of his automobile. Boyle v. Dolan, 97 Fla. 253, 120 So. 334; Greene v. Miller, 102 Fla. 767, 136 So. 532.
Other assignments have been examined, and while irregularities may have been committed, they were harmless and did not amount to reversible error.
Reversed.
On Petition for Rehearing.
On petition for rehearing the court deems it advisable to elaborate on the provisions of section 4968, Revised General Statutes of 1920, section 7055, Compiled General Laws of 1927, providing for the appointment of a physician to make a physical examination of the injured party in personal injury cases when requested by the defendant to do so.
It appears that at the trial of this case a physician was appointed to make an examination of the plaintiff as authorized by the statute, but that his testimony was rejected because it was predicated in part on a blood test made by a competent technician under the physician's direction though it was made without objection by the plaintiff and was known to her physician.
In the main opinion filed September 12, 1935, and in State ex rel. Carter v. Call, 64 Fla. 144, 59 So. 789, 41 L.R.A. (N.S.) 1971, the scope and purpose of section 4968, Revised General Statutes of 1920, were discussed in part. In these cases we held that the power of the court to appoint a physician to make the examination was discretionary, that the act must be construed with due regard to the rights of the parties, and that its application must not be extended beyond its terms. We also held in effect that if the person injured refused to submit to the examination the trial court would not be held in error for continuing the cause until it was made.
When it becomes necessary or advisable to make the examination, if the scope of it is such that the physician appointed for the purpose can make it he may proceed to do so under the order of the court, but if he finds that it requires a microscopic or bacteriological examination of the blood, urine, kidneys, heart, lungs, viscera, or other organs or elements of the body that he is not prepared to make, he may under the order of the court have such examination or analysis made by competent technician, pathologist, toxicologist, or other physician. To effectuate the best results possible from the examination, he may send such samples, elements, or specimen from the body of the plaintiff to adequately equipped laboratories in or out of the state for this purpose. When properly made the results of such examination or analysisshall be admissible at the trial as evidence in the cause.
The act was designed to ascertain the nature and extent of the injury for which damages are sought and thereby aid the court and the jury in arriving at such compensation therefor as should reasonably be awarded. It was, in other words, purposed as an aid in the administration of justice and its use should be limited to that purpose.
In State ex rel. Carter v. Call, supra, we said that the right exercised under section 4968, Revised General Statutes of 1920, was unknown to the common law and should not be extended beyond the terms of the statute, but it now appears that the decided weight of numerical authority is to the effect that courts have inherent power to order a physical examination of the plaintiff in personal injury cases by a competent physician or surgeon when such an examination is necessary to ascertain the nature, extent, or permanency of the injuries complained of. Expecially is this true in the case of latent injuries the extent of which can be correctly ascertained only through an examination. Louisville & N. R. Co. v. Koonce, 4 Tenn.Civ.App. (4 Higgins) 1; Larson v. Salt Lake City, 34 Utah,...
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... ... v. Curry, ... Tex.Civ.App. 1941, 152 S.W.2d 862; Woodruff v ... Gilliam, 116 W.Va. 101, 179 S.E. 873; Depfer v ... Walker, 1936, 125 Fla. 189, 169 So. 660; McInnes v ... Cannon, 1929, 225 A.D. 852, 232 N.Y.S. 805 ... J. F ... Martin, of ... ...
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St.Francis Hospital v. Thompson
...which had theretofore been placed upon it by the Supreme Court in the cases, supra. In Depfer v. Walker, 125 Fla. 189 (text 197), 169 So. 660, 664, said: 'It is urged that the court in its opinion of June 24, 1936, overruled State ex rel. Carter v. Call, 64 Fla. 144, 59 So. 789, 41 L.R.A.,N......
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Delaney v. State, 34541
...is presumed to have adopted these constructions. Rabinowitz v. Keefer et al., 1931, 100 Fla. 1723, 132 So. 297; Depfer v. Walker, 1936, 125 Fla. 189, 169 So. 660. Indeed, there is substantial authority for the proposition that such reenactment of the statute bars the court from subsequently......
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Greene v. Flewelling, 78-78
...legal causation must be judged on a case-by-case basis, two cases serve to illustrate the concept involved here. In Depfer v. Walker, 125 Fla. 189, 169 So. 660 (1936) the supreme court held that a plaintiff who merely showed that she sustained abdominal injuries in an automobile accident di......