Lane v. Spokane Falls & N. Ry. Co.

• Citation: 21 Wash. 119,57 P. 367
• Court: United States State Supreme Court of Washington
• Decision Date: 28 April 1899
• Parties: LANE v. SPOKANE FALLS & N. RY. CO.

57 P. 367

21 Wash. 119

LANE v. SPOKANE FALLS & N. RY. CO.

Supreme Court of Washington

April 28, 1899

Appeal from superior court, Spokane county.

Action by Mary Elizabeth Lane against the Spokane Falls & Northern Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

Reavis and Fullerton, JJ., dissenting.

Will H Thompson and Albert Allen, for appellant.

Fenton & O'Brien, James E. Fenton, and F. C. Robertson, for respondent.

GORDON C.J.

Respondent was a passenger on appellant's train between Spokane, in the state of Washington, and Rossland British Columbia, and sued to recover damages for injuries alleged to have been sustained while such passenger, as a result of appellant's negligence. In the lower court prior to the commencement of the trial, defendant made an application for an order directing that the plaintiff be examined by medical experts appointed by the court, for the purpose of ascertaining the nature, character, and extent of plaintiff's injuries. The court denied the application and the main question for determination upon this appeal is whether the courts of this state have the power to compel one who sues to recover damages for injuries to his person to submit to such an examination. The question is a very important one, and is presented for the first time in this court. Upon the question the courts of the country are not agreed. In Iowa, Nebraska, Kansas, Wisconsin, Alabama, Arkansas, Ohio, Michigan, Georgia, Minnesota, and Missouri it has been held that the court possesses the inherent power to make such an order ( Schroeder v. Railroad Co., 47 Iowa, 375; Stuart v. Havens, 17 Neb. 211, 22 N.W. 419; Railroad Co. v. Finlayson, 16 Neb. 579, 20 N.W. 860; Railroad Co. v. Thul, 29 Kan. 466; White v. Railway Co., 61 Wis. 536, 21 N.W. 524; Railroad Co. v. Hill, 90 Ala. 71, 8 So. 90; Sibley v. Smith, 46 Ark. 275; Turnpike Co. v. Baily, 37 Ohio St. 104; Graves v. City of Battle Creek, 95 Mich. 266, 54 N.W. 757; Railroad Co. v. Childress, 82 Ga. 719, 9 S.E. 602; Hatfield v. Railroad Co., 33 Minn. 130, 22 N.W. 176; Owens v. Railroad Co., 95 Mo. 169, 8 S.W. 350); while in Illinois, New York, Indiana, and the United States supreme court the power is denied ( Railway Co. v. Rice [Ill. Sup.] 33 N.E. 951; Roberts v. Railroad Co., 29 Hun, 154; Pennsylvania Co. v. Newmeyer [Ind. Sup.] 28 N.E. 860; Railway Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000). It is said that it is abhorrent to the principles of liberty to compel a party to submit to such an examination; that it invades the inviolability of the person, is an indignity involving an assault and a trespass, and an impertinence to which a modest woman would not consent. Courts should not sacrifice justice to notions of delicacy, and knowledge of the truth is essential to justice. The attainment of justice in the courts is of far greater importance than any merely personal consideration. A witness is frequently required to answer questions which shock modesty and offend the sense of delicacy. The demands of justice not infrequently occasion private inconvenience and annoyance. 'Her delicacy and refinement of feeling, though of course entitling her to the most considerate and tender treatment consistent with the rights of others, cannot be permitted to stand between the defendant and a legitimate defense against her claim of a large sum of money. When it becomes a question of possible violence to the refined and delicate feelings of the plaintiff on the one hand, and possible injustice to the defendant on the other, the law cannot hesitate. Justice must be done.' Railroad Co. v. Hill, supra. In the case at bar the respondent is a voluntary actor. She brings the suit, and, as said by the supreme court of Georgia in Railroad Co. v. Childress, supra: 'When a person appeals to the sovereign for justice, he impliedly consents to the doing of justice to the other party, and impliedly agrees, in advance, to make any disclosure which is necessary to be made in order that justice may be done.' It is to be presumed that, in exercising this power, the trial court will always see that only proper physicians or surgeons, and, where possible, wholly disinterested ones, are appointed to conduct the examination, and the expense of such examination should be borne by the party requesting it. Care should be exercised to avoid all unnecessary inconvenience and annoyance to the plaintiff, and, when desired, it should be made in the presence of the counsel and friends of the party to be examined, and the trial court must be free to exercise that sound discretion which the nature of the case and the ends of justice may require. In the present case, we think the application was seasonable and a proper one, and we perceive no reason why it should have been denied, unless, as asserted by appellant's counsel, the trial court was of the opinion that it had no power to make the order. If such was the reason for refusing the order, then it is apparent that the court exercised no discretion, and the case affords no ground for our refusal to review its action. Such an order, when granted, will operate to stay the suit until its provisions are complied with. As is said by Justices Brewer and Brown, dissenting in Railway Co. v. Botsford, supra: 'It is not necessary, nor is it claimed, that the court has power to fine and imprison for disobedience of such an order. Disobedience to it is not a matter of contempt. It is an order like those requiring security for costs. The court never fines or imprisons for disobedience thereof. It simply dismisses the case, or stays the trial until the security is given.' Authority of courts of divorce to compel a party to submit to a physical examination by physicians or surgeons appointed by the court has never been doubted. Le Barron v. Le Barron, 35 Vt. 365; Devanbagh v. Devanbagh, 5 Paige, 554. But it is said by the majority in Railway Co. v. Botsford, supra, that the reason for the exercise of such an authority in divorce actions is 'the interest which the public as well as the parties have in upholding or dissolving the marriage state.' But will it be said that the public has no interest in the attainment of justice between individuals? The admission that the court has power to make the order whenever it is deemed requisite to ascertain the fact of incapacity in a divorce action seems to us an argument in favor of the existence of the power to make such an order in the present case. It exists by implication, and may be exercised in either case, whenever the demands of justice require it. Actions of this character have, in recent years, become so numerous that the question is of far greater importance than it could possibly have been 25 years ago, and it is not surprising that most of the cases in which the question has arisen or is discussed at all are of recent origin. In our state, counties, cities, and other municipal corporations are liable for negligence resulting in injury to the person, to the same extent as private corporations and individuals ( Kirtley v. Spokane Co. [Wash.] 54 P. 936; Sutton v. City of Snohomish, 11 Wash. 24, 39 P. 273); and it becomes of the utmost importance that the question be determined with due regard for the public welfare. 'The common law grew with society, not ahead of it. As society became more complex, and new demands were made upon the law by reason of new circumstances, the courts originally, in England, out of the storehouse of reason and good sense, declared the 'common law.' But, since courts have had an existence in America, they have never hesitated to take upon themselves the responsibility of saying what is the common law, notwithstanding current English decisions, especially upon questions involving new conditions. * * * And we understand * * * that, where there are no governing provisions of the written laws, the courts * * * of this state are, in all matters coming before them, to endeavor to administer justice according to the promptings of reason and common sense, which are the cardinal principles of the common law.' Sayward v. Carlson, 1 Wash. St. 29, 23 P. 830 (see pages 40, 41, 1 Wash. St., and page 833, 23 Pac.). In concluding upon this question, we adopt and indorse the view expressed in the dissenting opinion in Railway Co. v. Botsford, supra, 'that a party who voluntarily comes into court alleging personal injuries, and demanding damages therefor, should permit disinterested witnesses to see the nature and extent of those injuries, in order that the jury may be informed thereof by other than the plaintiff and his friends, and that compliance with such an order may be enforced by staying the trial or dismissing the case.'

The conclusion we have reached upon this question disposes of the appeal, but, in view of the new trial which must occur, we deem it necessary to notice other questions which may arise thereon.

From the evidence in the case, it appears that when the train upon which plaintiff was a passenger arrived at the town of Northport, a distance of 140 miles from Spokane, the engine was uncoupled, and taken by the fireman up the track a short distance, for the purpose of getting water, the engineer leaving the engine to get his dinner. It appears that at that point time and opportunity are afforded passengers to procure dinner before proceeding on the journey. In backing the engine down to connect it with the train, it was permitted to collide with the cars with such force as to throw the plaintiff, who was standing in the aisle of one of the coaches, to the floor, causing the injuries of which she complains. At the trial the defendant introduced witnesses who testified that the engine was a standard locomotive passenger engine, and in first-class condition;...