Kenney v. La Grone

• Decision Date: 28 June 1933
• Docket Number: No. 9063.,9063.
• Citation: 62 S.W.2d 600
• Parties: KENNEY v. LA GRONE.
• Court: Texas Court of Appeals

62 S.W.2d 600

KENNEY v. LA GRONE.

No. 9063.

Court of Civil Appeals of Texas. San Antonio.

June 28, 1933.

Rehearing Denied July 27, 1933.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Action by Mrs. Rachel La Grone against Dr. John W. Kenney. From a judgment for plaintiff, defendant appeals.

Affirmed on condition.

T. M. West and Nat L. Hardy, both of San Antonio, for appellant.

R. B. Russell, Walter Groce, and Edward Dwyer, all of San Antonio, for appellee.

SMITH, Justice.

This action was brought by Mrs. Rachel La Grone against Dr. John W. Kenney, to recover damages for injuries alleged to have been sustained by Mrs. La Grone by reason of negligent administration of X-ray treatments by Dr. Kenney. The latter denied having ever on any occasion treated Mrs. La Grone, or that she was ever at any time his patient, or that he even knew her. A jury found and the court rendered judgment in favor of Mrs. La Grone in the sum of $10,450, from which appellee remitted $4,000, and from the amended judgment for the remainder, $6,450, Dr. Kenney has appealed.

In his first assignment of error appellant complains of the asserted refusal of the trial court to grant appellant's motion to compel appellee to submit to a physical examination by doctors of appellant's selection, it being shown in this connection that appellee's alleged injuries were voluntarily exhibited by her to the jury while she was upon the witness stand. The settled general rule in this state is that a person suing for damages for personal injuries cannot be compelled to submit to a physical examination by physicians of either the defendant's or the court's selection.

But this rule is subject to this exception, that when such person voluntarily exhibits the injured part of his body to a jury during the trial of his case, he thereby waives the inherent inviolability of his person and immunity from examination by experts. In such case, speaking generally, the defendant may properly demand that the plaintiff submit to reasonable examination by reputable physicians of defendant's selection, and the trial court's refusal of the defendant's motion therefor constitutes error. Chicago, R. I. & T. Ry. Co. v. Langston, 19 Tex. Civ. App. 568, 47 S. W. 1027, 48 S. W. 610; Id., 92 Tex. 709, 50 S. W. 574, 51 S. W. 331; Houston & T. C. Ry. Co. v. Anglin, 99 Tex. 353, 89 S. W. 966, 2 L. R. A. (N. S.) 386; Galveston, H. & S. A. Ry. Co. v. Chojnacky (Tex. Civ. App.) 163 S. W. 1011; St. Louis Southwestern Ry. Co. v. Browning, 54 Tex. Civ. App. 521, 118 S. W. 245; Panhandle & S. F. Ry. Co. v. Sedberry (Tex. Civ. App.) 46 S.W.(2d) 719; Bower v. Lively (Tex. Civ. App.) 11 S.W.(2d) 556.

But such error does not necessarily require reversal. It is only when the error has apparently or probably resulted in injury to the defendant that the judgment should be reversed, which is but a restatement of the general rule where error has been committed in the trial of a cause. No such injury has been made apparent, or appears probable, in this case. In the first place, appellant's demand for an examination by doctors of his own selection, if specifically made at all, was made so loosely and so indirectly and so haltingly and uncertainly as to require a somewhat forced construction and application to entitle it to consideration as a direct, specific, efficient demand. Appellant jockeyed along a whole day through upon the question, badgering the plaintiff and her counsel, stopping repeatedly just short of a specific demand for an order requiring appellee to submit to an examination. The incident eventuated in a halting order overruling appellant's "motion," without a showing whether the motion ruled upon was one to appoint doctors of appellant's selection, or one to appoint doctors of the court's selection. If the latter was the motion acted upon, then it was properly overruled, for according to all authorities, a trial judge may never be required to select such commission. We arrive at the conclusion that appellant did not efficiently move the court to appoint a commission of appellant's own selection, and therefore he did not bring his case within the rule invoked.

Appellant's contention for reversal upon this point must be overruled for another reason, to wit: Appellant did not show, or attempt to show, that the examination demanded was necessary to enable him to more certainly establish his contention that appellee's condition was due to eczema rather than X-ray burns. No witness, expert or otherwise, intimated that such witness could more certainly diagnose appellee's case by further examination of her. All of them stated that appellee's condition was due to eczema rather than X-ray burns, and there is no contention that the proposed examination would have enabled them to testify to the fact more positively than they did. Assuming that appellant efficiently insisted upon his right to the proposed examination, the error in the refusal thereof is not shown to have resulted in any injury or prejudice to him, and none is inferable from the record. Ry. v. Browning, supra. More than that, such injury is negatived by the record.

As a matter of fact, one of appellant's medical experts was freely permitted by appellee to make a physical...