Greenhow v. Whitehead's, Inc., 7317

• Decision Date: 30 December 1946
• Docket Number: 7317
• Court: Idaho Supreme Court
• Parties: GREENHOW v. WHITEHEAD'S, Inc

175 P.2d 1007

67 Idaho 262

GREENHOW v. WHITEHEAD'S, Inc

No. 7317

Supreme Court of Idaho

December 30, 1946

Appeal from District Court, Third Judicial District, Ada County Charles E. Winstead, Judge.

Reversed and remanded.

W. H Langroise and W. E. Sullivan, both of Boise, for appellant.

The trial court has no power or authority to make and enter the order dated March 16, 1946 (ff. 68-71), ordering plaintiff to submit to a physical examination. Union Pacific Ry. Co v. Botsford, 1890, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734; Howland v. Beck, 9 Cir., 1932, 56 F.2d 35; Sharp v. Ogden Rapid Transit Co., 1916, 48 Utah 481, 160 P. 438; Larson v. Salt Lake City, 1908, 34 Utah 318, 97 P. 483, 23 L.R.A.,N.S., 462; May v. Northern Pac. R. Co., 1905, 32 Mont. 522, 81 P. 328, 70 L.R.A. 111, 4 Ann.Cas. 605; Cornell v. Great Northern Ry. Co., 1920, 57 Mont. 177, 187 P. 902; Bailey v. Fisher, 1929, 11 La.App. 187, 123 So. 166.

The trial court abused its discretion in ordering the plaintiff to submit to a physical examination by physicians selected by the defendant. 17 Am.Jur. -- Discovery, § 69; 3 Jones Commentaries on Evidence, 2d Ed., § 1387; Williams v. Chattanooga Iron Works, 1915, 131 Tenn. 683, 176 S.W. 1031, Ann.Cas.1916B, 101; Boggs v. Gosser, Mo.App., 55 S.W.2d 722.

The trial court abused its discretion in ordering plaintiff to submit to a physical examination without providing plaintiff an opportunity to have her physician present. 17 Am.Jur. -- Discovery, § 71; Williams v. Chattanooga Iron Works, supra; McGovern v. Hope, 1899, 63 N.J.L. 76, 42 A. 830.

The trial court abused its discretion in failing to order the physical examination of plaintiff to be conducted at a time and place convenient to plaintiff, and in failing to safeguard and protect plaintiff's rights. 17 Am.Jur. -- Discovery, § 68; Williams v. Chattanooga Iron Works, supra; United Employers Casualty Co. 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 Boise, for respondent.

A plaintiff in a personal injury case by the filing of his complaint, impliedly consents to a physical examination. Wanek v. City of Winona, 78 Minn. 98, 80 N.W. 851, 46 L.R.A. 448, 79 Am.St.Rep. 354; Western Glass Mfg. Co. v. Schoeninger, 42 Colo. 357, 94 P. 342, 15 L.R.A.,N.S., 663, 126 Am.St.Rep. 165.

The court has the power to order a physical examination in a personal injury case. 18 C.J., pages 1111-1115, Secs. 100-108; Wanek v. City of Winona, 78 Minn. 98, 80 N.W. 851, 46 L.R.A. 448, 79 Am.St.Rep. 354; City of South Bend v. Turner, 156 Ind. 418, 60 N.E. 271, 54 L.R.A. 396, [ILLEGIBLE TEXT] Am.St.Rep. 200; Johnston v. Southern Pac. Co., 150 Cal. 535, 89 P. 348, 11 Ann.Cas. 841; Shepard v. Missouri Pac. Ry. Co., 85 Mo. 629, 55 Am.Rep. 390.

Givens, Justice. Budge, Holden and Miller, JJ., and Sutphen, D. J., concur.

OPINION

Givens, Justice.

Appellant sued respondent, druggists, for damages for the claimed faulty filling of a prescription, resulting in claimed injury to her person. After answer by respondent and note of issue, the case was set for trial at 10:00 A.M. Monday, March 18, 1946.

March 11, 1946, respondent asked appellant's counsel to have her submit to a physical examination by respondent's physicians. Appellant's counsel was then acquiescent, but advised respondent March 14 that appellant would not submit to an examination by one of the physicians selected. Other physicians were then suggested by respondent, when appellant's attorney advised respondent that appellant would not submit to any physical examination by any doctor, other than her attending physician.

March 16 respondent sought and secured an order from the trial court requiring appellant to submit to a physical examination at 12:30 of that day at the office of one of the selected physicians. Certain telephone conversations ensued between appellant and one of the physicians, the court and her attorney, and she then indicated willingness to submit to the examination, but later stated she could not be present and secure attendance of her physician at that time.

Twelve-thirty of the 16th went by and after further negotiations, the meeting was deferred to 1:30. Appellant then stated the time was too short and she was engaged in taking care of a child and an older person and could not be present. As a result, no physical examination was made on the 16th.

On the morning of the 18th, Sunday intervening, respondent moved, on affidavits pro and con, to dismiss the case because of appellant's failure to comply with the order.

At this hearing, appellant testified she had told her attorney, "before 12:00 o'clock Saturday, that you (she) would submit to that (physical) examination at 4:00 o'clock that afternoon." And at the conclusion of the hearing, in appellant's presence in open court, appellant's attorney stated: "At this time we renew our offer to submit to an examination." Whereupon, respondent's counsel renewed his objection to the offer and the court dismissed the cause.

The appeal is from this order of dismissal, questioning the court's authority to enter the order requiring a physical examination; and that he abused his discretion in dismissing the suit.

Incidentally, the record indicates appellant had no objection to the two physicians last suggested by respondent to conduct the examination if her physician could also be present, which was agreeable to all.

A resume of the authorities considering the points involved, discloses the following:

In Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 1001, 35 L.Ed. 734, the Supreme Court of the United States, based on "Inviolability of the person" as sacred and "Compulsory stripping and exposure [of the body] as by a blow;" that such order was not known to common law, except in cases involving infancy, identity, mayhem, or atrocious battery, and injury super visum vulneris presaging increased damages, considered admissible according to Blackstone as quoted, for the enlightenment only of the court, not the jury. "Physical examination relative to divorce, de ventre inspiciendo in female capital cases, and claim of enciente with a legitimate heir", all rejected by the court as inapplicable precedents in the United States and concluded that the above, or orders for inspection of property or documents unauthorized by statute, or projectively requested pre-trial examination of witnesses, did not authorize the court ordering a physical examination of a plaintiff by defendant's physicians without plaintiff's consent.

Florida. Has a statute, but held in Depfer v. Walker, 125 Fla. 189, 169 So. 660, at page 663, that without an authoritative statute of the state, the court would not have power to order such a physical examination.

Hawaii. In Choy v. Otaguro, 32 Hawai'i 543, at pages 551, 552, the court first announced the rule as stated in Botsford, supra, and then proceeds:

"It is equally well settled that if a plaintiff 'unreasonably refuses to show his injuries, when asked 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.' Union Pac. Railway Co. v. Botsford, supra, 141 U.S. at page 255, 11 S.Ct. at page 1002, 35 L.Ed. 734. 'No doubt, in general, a refusal to be examined by a proper doctor sent by the other side would be admissible in evidence and would be a proper subject for severe comment and a ground for adverse inference, at the very, least.' Stack v. New York, N. H. & H. Railroad Co., 177 Mass. 155, 159, [58 N.E. 686, 52 L.R.A. 328, 83 Am.St.Rep. 269]. * * * Because of the refusal of the plaintiff to permit an examination by the three named doctors in advance of the trial (that there was a refusal, see below), the defendant was unable to offer any medical testimony on the subject of the extent or the permanency of the plaintiff's alleged injuries and, necessarily, the case went to the jury on that issue, very largely upon the testimony adduced by the plaintiff. It became important, therefore, to the defendant to show if he could, by cross-examination of the plaintiff, that he had refused to comply with the request for an examination by the three doctors. Nor was the error cured by the offer of the plaintiff to have the doctors make the examination in open court. It is easily apparent that such an examination could not be satisfactorily made in open court or away from the doctors' own offices with the facilities there available for such a purpose. This error was highly prejudicial and must result in a new trial."

Illinois. Chicago, R. I. & P. R. Co. v. Benson, 352 Ill. 195, 185 N.E. 244, 247, in considering the situation detailed by the Hawaiian court holds, adhering to the rule previously announced in the Botsford case: "* * * That to permit such a question to be asked in the presence of the jury practically compelled him to submit to the examination because of the unfavorable effect likely to be produced upon the minds of the jury, if he refused, and that it was the settled law of this state that the plaintiff in an action of this kind could not be required to submit to a physical examination as to his injuries." Citing cases.

Louisiana. Bailey v. Fisher, 11 La.App. 187, 123 So. 166 (2d case) holds the court has no authority to require plaintiff to permit a physical examination, but holds, nevertheless, that when plaintiff refuses to comply with a request therefor, his or her physician will not be permitted to testify. Daste v. First Nat. Life, Health & Accident Ins. Co., 14 La.App. 565, 130 So. 572; Harris v. New York Life Ins....