Jewel Tea Co. v. Ransdell

• Decision Date: 08 June 1937
• Docket Number: 27254.
• Citation: 69 P.2d 69,180 Okla. 203,1937 OK 371
• Parties: JEWEL TEA CO. v. RANSDELL.
• Court: Oklahoma Supreme Court

69 P.2d 69

180 Okla. 203, 1937 OK 371

JEWEL TEA CO. v. RANSDELL.

No. 27254.

Supreme Court of Oklahoma

June 8, 1937

Syllabus by the Court.

1. In a personal injury case where a plaintiff at the direction of her counsel has exhibited injuries to her face, teeth and mouth to the jury for inspection, it is error to deny a timely motion of a defendant to require the plaintiff to submit to an examination of her teeth and mouth by a dentist to be selected by the defendant.

2. Although a plaintiff in a personal injury case may decline to submit to a physical examination either before or during the trial of the cause, he is not thereby precluded from offering his body or portions thereof in evidence and if he elects to do so may not thereafter claim the exemption which he could have previously asserted.

3. The right to refuse a physical examination is not peculiar to minors but extends to adults and minors alike and both stand in the same positions when they voluntarily introduce their bodies or portions thereof in evidence.

Appeal from Court of Common Pleas, Tulsa County; Floyd E. Staley Judge.

Action for personal injuries by Lida Christine Ransdell, a minor, by her next friend, Mrs. C. M. Ransdell, against the Jewel Tea Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded with directions.

Eldon J. Dick, of Tulsa, for plaintiff in error.

G. E Conway, of Tulsa, for defendant in error.

PER CURIAM.

This action was instituted in the court of common pleas of Tulsa county by Lida Christine Ransdell, a minor, hereinafter referred to as plaintiff, by her next friend, against the Jewel Tea Company, a corporation, hereinafter referred to as defendant and V. L. Reeder. The plaintiff sought to recover damages for personal injuries to her mouth, teeth and face alleged to have been sustained as the result of a collision between an automobile in which she was riding and a truck owned by the defendant and driven by V. L. Reeder. Service of process was not had upon V. L. Reeder and he was dismissed from the case. The Jewel Tea Company filed an answer wherein it admitted that as a result of its actionable negligence the plaintiff had sustained certain personal injuries but averred that said injuries were neither as serious nor as severe as claimed by the plaintiff and that in truth and in fact her damages did not exceed the sum of $100 for which amount the defendant offered to confess judgment. The offer was declined and the case proceeded to trial before a jury. The jury returned a verdict in favor of plaintiff and assessed her recovery at the sum of $500.

The defendant appeals and as grounds for reversal urges first error in the refusal of the court to require the plaintiff to submit to an examination by a dentist selected by the defendant after she had exhibited her injuries to the jury second, error in the refusal of certain oral requests for instructions and in certain instructions which were given by the court; and third, that the verdict is so excessive that it is apparent that it was given as a result of passion or prejudice.

The injuries of the plaintiff were to her mouth, teeth and face. On direct examination she was directed by her attorney to exhibit these injuries to the jury, which she did. After the plaintiff had exhibited her teeth, mouth and face to the jury and they had been directed to inspect them and had done so, the defendant requested the court to require the plaintiff to submit to an examination by a dentist to be selected by it. The court stated that it was of the opinion that it was without authority to entertain this request. The defendant then requested the plaintiff to submit to such examination and her attorney categorically denied the request.

This court has not heretofore had occasion to pass upon the precise question which is here involved. In the case of City of Kingfisher v. Altizer, 13 Okl. 121, 74 P. 107, the territorial court announced that the courts were without authority to require a plaintiff in an action for an injury to his person to submit to a surgical examination either before or during the trial of the case and the rule so pronounced was subsequently adhered to and reannounced by this court in the case of Atchison, T. & S. F. R. Co. v. Melson, 40 Okl. 1, 134 P. 388, Ann.Cas.1915D, 760, wherein the authorities are fully reviewed and discussed. In such a case it is always proper however to ask the plaintiff whether he would be willing to submit to a physical examination conducted by an impartial physician appointed by the court. See, Chicago, R.I. & P. Ry. Co. v. Hill, 36 Okl. 540, 129 P. 13, 43 L.R.A. (N.S.) 622, City of Kingfisher v. Altizer, supra, and Atchison, T. & S. F. R. Co. v. Melson, supra. In the case of Oklahoma R. Co. v. Thomas, 63 Okl. 219, 164 P. 120, L.R.A. 1917E, 405, the court had this to say: "Where plaintiff in an action for damages for personal injuries exhibits a portion of his body to the jury, and physicians called by him testify as to the nature and extent of his injuries, and plaintiff offers to submit to an examination by any physician or board of physicians named by the court other than those in the employ of defendant, who are shown to have been employed by the defendant and who are to receive $25 per day for testifying in the case, it is not error for the court to refuse to require plaintiff to submit to an examination by the physicians employed by defendant."

In the present case the defendant admitted liability for the plaintiff's injuries whatever they were and the sole questions for the jury to determine were the nature and extent of such injuries and the amount of damages to be properly awarded therefor. Under these circumstances the exhibition by the plaintiff of the injured portions of her face and mouth could have had but one purpose, namely, to enhance the amount of damages to be awarded by the jury. While the courts are in disagreement as to the authority to require a plaintiff to submit to an examination in the first instance they are in practical unanimity with respect to the rule to be followed when the plaintiff has offered a...