Holton v. Janes

• Decision Date: 06 August 1919
• Docket Number: 2162.
• Parties: HOLTON v. JANES.
• Court: New Mexico Supreme Court

183 P. 395

25 N.M. 374, 1919 -NMSC- 037

HOLTON v. JANES.

No. 2162.

Supreme Court of New Mexico

August 6, 1919

Syllabus by the Court.

In a personal injury case, where plaintiff had voluntarily exhibited an injury to his head to the jury for inspection and the defendant moved the court to compel plaintiff to submit to a physical examination of his head by physicians named by defendant, held, it was error to deny defendant's request.

Additional Syllabus by Editorial Staff.

It is a matter of common knowledge, of which courts will take notice that the question of the impairment of vision is capable of exact demonstration by expert examination.

Appeal from District Court, Curry County; McClure, Judge.

Action by R. T. Holton against John N. Janes. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions to award defendant a new trial.

Patton & Bratton, of Clovis, for appellant.

Rowells & Reese, of Clovis, for appellee.

MERRITT C. MECHEM, District Judge.

This is an action to recover damages for personal injuries. The only error assigned, which will be considered, is that which challenges the correctness of the refusal of the trial judge to require the appellee to submit to a physical examination.

The appellee claimed to have received numerous injuries to different parts of his body, and among others to his head. As to the wounds in his head he alleged in his complaint:

"That the wounds, bruises, and fractures inflicted upon plaintiff's head have greatly damaged, injured, and weakened the eyesight of plaintiff, thereby making it difficult for plaintiff to see and discern objects at any considerable distance; that all of said injuries, bruises and wounds have caused and are still causing the plaintiff intense pain, and bodily and mental suffering, and permanently injuring plaintiff."

On direct examination the appellee testified:

"Q. How did this bruise on your eye or head affect you? A. This side of my head (pointing to left side of head) and eye. I can't see out of my eye half as good after it was hurt."

After asking him about his teeth, he was further questioned about his head as follows:

"Q. You say the accident knocked a hole in your head? A. Yes, sir.

Q. What part of your head? A. Right here (indicating left side of head).

Q. Is there any indication there? A. Yes, sir.

Q. What part of your head, let the jury see it? (Plaintiff exhibits head to jury.)"

On cross-examination appellee testified:

"Q. You say your eyesight has been affected from the wound in your head-weak or affected? A. My left eye has been affected."

After appellee had rested his case, appellant moved the court to compel the appellee to submit to a physical examination. The request was limited to an examination of the parts of his body he had exhibited to the jury for examination. Appellant also suggested the names of three licensed physicians, who he said were immediately accessible and would make the examination without delaying the trial. This action the court overruled, and defendant excepted. No reason was given by the court in support of the ruling.

An examination of the cases will show that the courts have uniformly held that, where a plaintiff in a personal injury suit voluntarily exhibits the injured part of his body to the jury for inspection, the portion of his body so exhibited becomes an exhibit in the case, like any other object or thing introduced in evidence, and the opposite party has the right to make such inspection of it as will enable him to explain, criticize, or impeach its value as evidence, and to that end have it examined by experts. Winner v Lathrop, 67 Hun, 511, 22 N.Y.S. 516; Haynes v. Town of Trenton, 123 Mo. 326, 27 S.W. 622; Chicago, Rock Island & T. Ry. Co. v. Langston, 19 Tex.Civ.App. 568, 47 S.W. 1027, 48 S.W. 610; Houston & Texas Central R. R. Co v. Anglin, 99 Tex. 349, 89 S.W. 966, 2 L. R. A. (N. S.) 386; Chicago & N.W. Ry. Co. v. Kendall, 167 F. 62, 93 C. C. A. 422, 16 Ann. Cas. 560; Booth v. Andrus, 91 Neb. 810, 137 N.W. 884.

In Chicago & N.W. Ry. Co. v. Kendall, supra (Circuit Court of Appeals, Eighth Circuit), the court said:

"In the present case we are not dealing with an application for a surgical examination in advance of the trial. Here the plaintiff at the trial voluntarily exhibited his knee in open court for inspection. Having done this, it was beyond his power to arrest the investigation. The defendant and the court were entitled to employ any agency in its examination which would aid in the determination of the issue on trial. It is universally held that, where an inanimate object is produced upon the trial of a case, it

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