Fred Howland, Inc. v. Morris

• Decision Date: 24 May 1940
• Citation: 196 So. 472,143 Fla. 189
• Parties: FRED HOWLAND, Inc. v. MORRIS.
• Court: Florida Supreme Court

196 So. 472

143 Fla. 189

FRED HOWLAND, Inc. v. MORRIS.

Florida Supreme Court, Division B.

May 24, 1940

Rehearing Denied June 11, 1940.

Error to Circuit Court, Dade County; Paul D. Barns, Judge.

Action by Walter P. Morris against Fred Howland, Incorporated, for injuries sustained in a fall while inspecting a building which was being constructed by the defendant. To review a judgment for the plaintiff, defendant brings error.

Affirmed.

COUNSEL

Blackwell & Walker, of Miami, for plaintiff in error.

E. F P. Brigham and Gramling & Gramling, all of Miami, for defendant in error.

OPINION

PER CURIAM.

Writ of error from the circuit court of Dade County, Florida.

Defendant in error, Morris, plaintiff below, was a building inspector in the employ of the city of Miami. Walgreen Company was having a building constructed on its city property and plaintiff in error, Fred Howland, Inc., defendant below, was the general contractor in charge of construction. Walgreen had a superintendent in its own employ present at the building in general supervision of Walgreen's interests.

While present in the building on a tour of inspection of the electrical equipment Morris fell through what is known in construction work as a 'pan' and was injured. The pan was one of a series of forms into and upon which concrete would be poured to constitute the mezzanine floor of the building. Verdict against Fred Howland, Inc., was rendered in favor of Morris for $11,250. From a final judgment for this amount, Fred Howland, Inc., brings this writ of error.

Pursuant to section 7055 (4968), C. G. L., defendant by motion requested compulsory physical examination of plaintiff Morris. Judge Atkinson, on March 7, 1939, granted this motion, appointing Dr. Tallman as the physician before whom such examination was to be made, and further providing that 'plaintiff may, if he so elects, have his own physician present at the time of this examination.'

The examination was had without plaintiff's doctor being present, and subsequently an order was entered by the court on motion of plaintiff that he be presented with a copy of Dr. Tallman's report. Through assignments of error numbered 35, 42, and 43, this action on the part of Judge Alto Adams, acting in the absence of Judge Atkinson, is here for review.

In their briefs on this question, both parties cite cases from other jurisdictions wherein statements similar to the following are made: 'Certainly a lawsuit should not be a game of chance; one side should not have an advantage over the other.' There is much emphasis laid upon the fact that it would be manifestly unfair to defendant to require him to disclose what his witnesses will testify. On the other hand, defendants argue that no harm is done by requiring plaintiff to disclose the facts around which his case is built, not only through requiring him to submit to compulsory pre-trial physical examination, but also pre-trial oral examination.

While to some they may seem to go too far with their liberal practices, these rules are designed to speed up and simplify practice in the federal courts, and do so with excellent results. In the modern fast moving world the trend is toward faster methods of procedure, without, of course, sacrificing any of the fundamental rights of the parties.

At common law a compulsory examination of plaintiff was unheard of and would have been denounced as a most iniquitous practice. In Union Pacific R. Co. v. Botsford, 1891 141 U.S. 250, 11 S.Ct. 1000, 1001, 35 L.Ed. 734, the U.S. Supreme Court said:

'The single question presented by this record is whether, in a civil action for an injury to the person, the court, on application of the defendant, and in advance of the trial, may order the plaintiff, without his or her consent, to submit to a surgical examination as to the extent of the injury sued for. We concur with the circuit court in holding that it had no legal right or power to make and enforce such an order.

'No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley: 'The right to one's person may be said to be a right of complete immunity; to be let alone.' Cooley, Torts, 29.'

However, in tune with changing conditions, Florida in 1899, by statute (section 7055 (4968), C.G.L.) provided for compulsory physical examination, omitting to make any mention of what should be done with the report of the examining physician, but placing no restrictions on its use. It is provided that the examination may be made in the presence of either the physician of plaintiff or one of his other attendants.

In Stoczynski v. Croft, 1938, 166 Misc. 553, 2 N.Y.S.2d 740, 741, the New York court had this same question about allowing plaintiff to have a copy of the doctor's report up for discussion. In holding that the report should not be delivered to plaintiff, that court said:

'The most recent recorded opinion on the subject is that of the federal District Court of the Eastern District of New York by Moscowitz, District Judge. There Judge Moscowitz ordered that the copy of the report be furnished to the plaintiff. In support of his ruling he made the statement: 'Certainly, a lawsuit should not be a game of chance, one side should not have an advantage over the other. If the defendant is entitled to a copy of the report, the plaintiff is likewise entitled to receive a copy.' Mitchell v. Pure Oil Co., 1937, D. C., 20 F.Supp. 1021, 1022.

* * *

'The decision in the Kelman Case above cited [ Kelman v. Union R. Co. of New York City, 202 A.D. 487, 195 N.Y.S. 313] follows the reasoning and the decision of Mr. Justice Pound (later Chief Judge of the Court of Appeals) at Special Term in Mizak v. Carborundum Co., 75 Misc. 205, 208, 132 N.Y.S. 1104, 1106, affirmed 151 A.D. 899, 135 N.Y.S. 1128, this Fourth Department. In his opinion, Mr. Justice Pound refused the request of the plaintiff for a copy of the physician's report. The ground given by him for such refusal is revealed in the following quotation from his decision at Special Term: 'A defendant in a negligence case may not be compelled to disclose before trial what the physical examination of plaintiff by its physicians reveals, any more than it may be compelled to disclose what it expects to prove by its other witnesses.'

'The reasoning of Mr. Justice Pound appeals more to this court than that of judge Moscowitz. If Judge Moscowitz' reasoning could be followed out to the extent that 'one side should not have an advantage over the other,' then it might be said with equal reason that either party could compel the other party to present to the party demanding the same the statements made by witnesses of the party on whom the demand is made and the result of the investigations of the party on whom the demand is made. Although our practice has become more liberalized and undoubtedly will be more liberalized as years go on so as to carry out the thought that the trial of lawsuits is not a game of chance but is a seeking after the truth and merits of the action, this court is of the opinion that we have not reached the point and that it would be unwise to establish the practice, of compelling each side to divulge all of its evidence to the other prior to trial.'

Truly, the time has not come to compel each side to divulge all of its evidence to the other prior to trial, but the time has come to take the first step toward simplifying personal injury cases and those cases where myriads of doctors, disguised as experts, take the stand to testify as to the physical or mental condition of one of the parties. We are not aware that hardship is wrought upon defendant in requiring him to submit to plaintiff a copy of the report of the doctor, when plaintiff himself is the subject matter of the report, and by submitting to the examination may in a measure weaken his own case. Our conclusion on this point is that in the interests of more substantial justice and fairness to both parties, a copy of the report of the physical examination should be delivered to plaintiff.

The propriety of the admission of the testimony of Owen Carr is questioned by assignments of error number 19 and 20. Mr. Carr is an assistant building inspector of the City of Miami and has been since 1935. He had 'grown up in the construction business', and had been actively engaged in this business for himself for about 22 years. Mr. Carr was familiar with the type of construction being used by defendant and with the pans, or concrete forms, from which plaintiff fell. Coupled with his experience, the witness had visited the scene of the accident very shortly after its occurrence and had made a minute inspection of the materials involved. Mr. Carr was questioned as to the cause of the accident, based on his observations and experience.

In 22 Corpus Juris 632, section 728, we find the following:

'A witness, of special knowledge or skill on a subject outside of the ordinary realm of human experience, may be permitted to state his inference, from facts observed by him, as to matters connected with his specialty, not only because of the frequent difficulty of communicating the facts to the jury but also because, even if the facts could be fully laid before them, they would not possess the special knowledge or training necessary to coordinate and weigh the facts so as to draw the correct and proper inference therefrom. Such witness is frequently termed an expert, but this is inaccurate, for the skilled witness testifies as to the result of his own observation, and occupies the same position...