Larson v. Salt Lake City

• Decision Date: 12 September 1908
• Docket Number: 1944
• Court: Utah Supreme Court
• Parties: LARSON v. SALT LAKE CITY et al

97 P. 483

34 Utah 318

LARSON v. SALT LAKE CITY et al

No. 1944

Supreme Court of Utah

September 12, 1908

APPEAL from District Court, Third District; T. D. Lewis, Judge.

Action by Jennie Larson against Salt Lake City and others. From a judgment of dismissal, plaintiff appeals.

REVERSED AND REMANDED.

G. M Sullivan, W. A. Lee, and A. T. Sanford for appellant.

Young &amp Snow and H. J. Dinniny for respondents.

STRAUP J. McCARTY, C. J., FRICK, J., concurring.

OPINION

STRAUP, J.

Plaintiff brought this action to recover damages for personal injuries alleged to have been sustained by her by the negligence of the defendants. It was alleged in the complaint that, by reason of the negligent acts, the plaintiff "was rendered unconscious, her left leg and ankle badly bruised and injured, her back, spine, and nervous system disordered, her face and nose scarred and disfigured, and that she was otherwise made sick, sore, and lame; that she was confined to her bed for many weeks, and required the services of a physician and surgeon; and that her injuries were permanent and lasting." The defendants filed general denials. Before trial, one of the defendants, the Big Four Advertising Company, applied to the court for an order requiring the plaintiff to submit to an examination by a competent physician and surgeon to be appointed by the court, in order that the character and extent of plaintiff's injuries, and whether her disabilities, if any, were due to the causes set forth in the complaint, might be ascertained and determined. The name of such a physician was suggested and his appointment requested by the defendant. The plaintiff objected to the granting of the order, on the grounds, principally, that the court was without authority to make or enforce the order, and that the physician suggested by the defendant was prejudiced and biased. In ruling on the objection, the court observed that both the plaintiff and the defendant had the right to select their own witnesses; that the plaintiff had the right to select a physician of her choice, and the same privilege ought to be extended to the defendant, unless the reputation of the physician was such that he ought not to be selected. The court, however, required a showing to be made as to the necessity for the examination, which showing was to the effect that the defendant applying for the order had no information, except as was alleged in the complaint, concerning the character or extent of the alleged injuries. Thereupon the court made an order requiring the plaintiff, at a time specified, and at her home, or at some place to be designated by her, to submit to an examination to be made by the physician and surgeon suggested by the defendant, the plaintiff's physician and attorneys, if she desired them, to be present at such examination. The plaintiff refused to comply with the order, whereupon the court, at a subsequent time, dismissed the case. Judgment was entered accordingly, from which this appeal is prosecuted by the plaintiff.

The questions presented, therefore, are whether the court had the power to make the order, and whether it was authorized to dismiss the case on plaintiff's refusal to comply with it. Upon these questions the authorities are in hopeless conflict. They are collected and referred to in note to section 4, p. 1022, 5 Current Law, 64 Cent. Law Journal, p. 428, 14 Cyc. 364, and in the case of May v. North P. Ry. Co., 32 Mont. 522, 81 P. 328, 70 L. R. A. 111, where the power to make the order was denied; and in the cases of City of South Bend v. Turner, 156 Ind. 418, 60 N.E. 271, 54 L. R. A. 396, 83 Am. St. Rep. 200, and Johnston v. So. P. Co., 150 Cal. 535, 89 P. 348, where the power was asserted. Upon noting and reviewing the cases from the different jurisdictions in Current Law, supra, it is said:

"If the last announcements of these several courts may be taken to indicate the law in their respective states, a review of the decisions discloses that the power of trial courts, to compel such examination is asserted in Alabama, Arkansas, Georgia, Iowa, Indiana, Kansas, Kentucky, Michigan, Minnesota, Missouri, North Dakota, Ohio, Pennsylvania, Washington, and Wisconsin, and denied in the federal and territorial courts and in Illinois, Massachusetts, and Texas, and was denied in New York until specifically granted by direct legislative enactment. The bare assertion that trial courts possess this power, in the absence of any legislation, and without common-law precedents, has led to the greatest possible confusion among the decisions of the very courts asserting it. (1) What is the source of the power? (2) To what extent may it be carried? (3) May the defendant demand the order as a matter of right? And (4) how will the court enforce obedience to its order? Singularly enough the first of these questions appears to have received little or no consideration."

The courts asserting the power have quite generally held that the defendant has not the absolute right to the order, but that the motion therefor is addressed to the sound discretion of the court, and that the application should be made before entering upon the trial; that the defendant has not the right to designate the physician by whom the examination is to be made, but that the examination should be ordered, and conducted under the direction of the court whenever it fairly appears that important facts concerning the injury are only to be disclosed by such an examination, and that it may be made without injury to plaintiff's health, or the infliction of serious pain, or indignity to, or an unreasonable or indecent exposure of, his person; and that while the court has no right, in the enforcement of the order, to compel the plaintiff to actually submit to the examination, the court may nevertheless, upon plaintiff's refusal to do so, dismiss the case or delay the proceeding until he complies with the order, or the court may decline to permit any evidence to be given to establish the injury. A few courts have held that, on plaintiff's refusal to comply with the order, the court may punish him as for a contempt.

In many cases where courts have asserted the power it will be seen, as has been suggested, the existence of the power was either assumed or merely asserted. In others the courts, instead of discussing the source of the power, or undertaking to state by what authority such a power is exercised, have undertaken to give reasons why trial courts ought to have such a power, and why it ought to be exercised by them. The same thing is true of some text-writers. Thus, in section 859 of Thompson on Trials, the author says:

"In modern trials of civil actions for physical injuries, the question has frequently arisen whether the court has power to order an inspection of the body of the plaintiff or person injured for the purpose of ascertaining the nature and extent of the injuries. Some of the courts, carrying in their minds no higher conception of a judicial trial than the conception that it is a combat in which each of the gladiators is permitted, within certain limits, to deceive and trick the antagonist and the umpire, have denied the right of the defendant to have an order for such inspection. Other courts, taking the more enlightened view that the object of a judicial trial is to enable the state to establish and enforce justice between party and party, have held that it is within the power of the trial court, in the exercise of sound discretion, in proper cases, upon an application seasonably made, under proper safeguards designed to preserve the rights of both parties, to order such an inspection and to compel the plaintiff or injured person to submit to it."

The same thought is expressed in less intemperate language in the case of South Bend v. Turner, supra, where it is said:

"Courts are instituted by the state to administer impartial justice to contending parties. In such contests it is the duty of the court to bestow upon the litigants equal and exact justice. This cannot be done without the court first obtaining the exact and full truth concerning the matters in controversy. Hence from this duty of the court to dispense exact justice is essentially implied all the power necessary to its performance, which includes the power to make subservient to its order all persons and things that will afford the most reliable evidence."

On page 3020, 3 Wigmore on Evidence, it is said:

"There is and will be no end to the variety of frauds invented; and it will be an ill day for justice when the courts cease to meet new frauds by new applications of old remedies. Quite apart from the general impolicy of granting to a party the license to conceal truth by any form of refusal, there is in this class of cases the added consideration that corporal injuries are today notoriously a subject of frequent fraud and misrepresentation; so that the privilege to withhold the exhibition of the alleged injury may amount in such cases to nothing less than a judicial license of fraud."

In the case Wanek v. City of Winona, 78 Minn. 98, 80 N.W. 851, 46 L. R. A. 448, 79 Am. St. 354, the court observes:

"To allow the plaintiff in such cases, if he sees fit to display his injuries to the jury, to call in as many friendly physicians as he pleases, and have them examine his person, and then produce them as expert witnesses on the trial, but at the same time deny to the defendant the right in any case to have a physical examination of plaintiff's person, and leave him wholly at the mercy of such witnesses as the plaintiff sees fit to call, constitutes a denial of justice, too great in our judgment to be tolerated for one moment."

And in other cases language may be found similar to that expressed by Mr. Justice Beck in ...