Perkins v. Monongahela Valley Traction Co.

• Decision Date: 05 March 1918
• Citation: 81 W.Va. 781
• Parties: Benjamin L. Perkins v. Monongahela Valley Traction Co.
• Court: West Virginia Supreme Court

81 W.Va. 781

Benjamin L. Perkins

v.Monongahela Valley Traction Co.

Supreme Court of Appeals of West Virginia.

Submitted February 19, 1918.

Decided March 5, 1918.

1. Damages Physical Examination Discretion of Trial Court.

It is not an abuse of discretion to refuse to require the plaintiff in a suit to recover damages for personal injuries to submit to a physical examination, to be conducted by physicians selected by the defendant, where it appears that the plaintiff has submitted to one such examination, and upon demand being made for a second one. expressed his willingness to submit thereto at the trial; if indeed the court has the power to require such examination in any case. (p. 783).

Carriers Passengers Care Required.

Carriers of passengers in the execution of their contracts of carriage are charged with the exercise of the highest degree of care and diligence of which human skill and foresight is capable, (p. 786).

Damages Personal Injury Special Damages Pleading.

One suffering an injury from the unlawful act or negligence of another is entitled to recover all of the damages resulting from such negligence, even though, because of his enfeebled condition, the injury to him is much more severe than would have been sustained by one in good health. The damages in such case are not special in the sense that the injured party in his pleading must aver his weakened physical condition, and the more serious effect of the accident upon him because thereof, (p. 786).

4. Evidence Expert Testimony Hypothetical Facts Basis of Opin-

ion.

It is not improper to permit an expert witness to give an opinion based partly upon an hypothetical state of facts contained in the question asked him, and partly upon his knowledge of the subject of such opinion, where it appears that before being asked therefor he has fully informed the jury as to the character and extent of his knowledge of the subject upon which his opinion is asked, (p. 790).

5. Trial Admission of Evidence General Objection.

Evidence that is competent for any purpose is properly admitted over a general objection thereto, (p. 790).

Error to Circuit Court, Harrison County.

Action by Benjamin L. Perkins against the Monongahela Valley Traction Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

George M. Alexander, Tusca Morris, Osman E. Swartz, E. Byran Templeman, and CJias. G. Coffman, for plaintiff in error.

SmilJi &; Jackson, and Ireland, & Perkins, for defendant in error.

Ritz, Judge:

. Plaintiff was a passenger on a car of the defendant company from Fairmont to Clarksburg. When the car arrived at Clarksburg it was dusk. This coach was not hauled up to the platform where passengers are ordinarily discharged, but stopped with one end of it extendeng over a trestle. The station was called by the conductor and the plaintiff got up from the brightly-lighted car, walked out upon the platform, and being unable, because of the fact that he came out of a brightly-lighted car into the dark, to see that the car was extending over the trestle, stepped off the car upon the trestle, his right leg going through between the ties, he alighting upon the base of his spinal column and the pelvic region. Some superficial injury resulted to his right leg, but the principal injury of which he complains is that which he claims was produced by the shock to his spinal column. The defendant does not now, and could not very well, in the light of the evidence, contend that it was not guilty of negligence in its conduct toward the plaintiff on the occasion of his injury, but it insists that the injuries for which the plaintiff recovered damages did not result from the accident to him on that occasion, but were the effect of a pre-existing disease.

The defendant's first contention is that the court below erred in refusing its motion to require the plaintiff to submit to a physical examination, to be conducted by physicians selected by the defendant and approved by the court. A few days before the calling of this case for trial the defendant made a motion in the court below to require the plaintiff to submit to a physical examination, to be conducted by physicians of its selection, to be approved by the court, but the court after hearing this motion refused the same. Was this error under the circumstances shown to exist in this case? The accident to the plaintiff occurred on the 30th day of November, 1913. His contention is that his physical condition has continued to grow worse ever since that time, There was some negotiation between the parties looking to a settlement of plaintiff's claim for the injuries received, and in the fall of 1914, at the request of the defendant, the plaintiff submitted himself for a physical examination by a physician designated by the defendant. This examination was conducted in the office of the plaintiff's physician and was as full and complete as the defendant's physician desired. No settlement resulted, and this suit was thereafter brought. A short time before the case was set for trial plaintiff, fearing that he would be unable to attend the trial because of his debilitated condition, took his own deposition to be read as evidence upon the trial in case he should be unable to attend. At this time he was examined as to the nature and cause of his illness, and testified that he could not speak as to the causes of the trouble, but that certain physicians who had been attending him would testify at the trial in regard thereto. The defendant company thereupon asked him if he was willing to submit to a further physical examination by physicians of its selection, and he replied that he would not submi': to any further examination by the defendant's physicians in advance of the trial; that it secured a continuance of his case at a former term of the court on the ground of the absence of its physician who had theretofore examined him, and he did not care to be a party to making more witnesses for fear the result would be another continuance of the case; but that if the defendant desired to have him examined further he would submit to such examination at the trial. The plaintiff was present at the trial of the case and was examined as a witness, and no request was made by the defendant company to have him examined by any physician of its selection. The right to have a physical examination of a plaintiff in an action to recover damages for personal injury, if such right exists, and upon this we express no opinion, can certainly only be reasonably exercised. The authorities upon the question of the existence of the right are irreconcilably in conflict. See City of South Bend v. Turner, 156 Ind. 418, 54 L. R. A. 396; Atchison, Topeka & Santa Fe Ry. Co. v. Palmore (Kan.) 64 L. R. A. 90; Austin & Northwestern R. R. Co. v. Cluck (Tex.) 64 L. R. A. 494; Western Glass Mfg. Co. v. Schoeninger, 15 L. R. A. (N. S.) 663. The monographic notes appended to the reports of the above cases contain exhaustive citations of the authorities on both sides of this question. An examination of these authorities leads to the conclusion that even in those jurisdictions where the right to have such physical examination is recognized, it is granted or withheld by the court in the exercise of a sound judicial discretion. Williams v. Chattanooga Iron Works, 131 Tenn. 688; Wigmore on Evidence, § 2220; Thompson on Trials, § 859; Jones on Evidence, §§ 396 & 397; Black's Law & Practice in Accident Cases, § 208; Chamberlayne on the Modern Law of Evidence, § 3597. These text writers cite the authorities supporting the various positions taken in the text, and there seems to be no dissent from the view that where the court to which such a motion is made, in the exercise of a sound discretion, refuses such examination its action will not be reversed. The things to be considered by the court in passing upon such a motion are the convenience of the plaintiff, the necessity for the physical examination, that is, the probability that it will produce evidence of value in the trial of the case, and also whether or not the plaintiff has declined to submit to such reasonable examination. In no case have the courts required the submission to a physical examination which would result in serious inconvenience to the plaintiff, or would involve a surgical operation, and ordinarily the plaintiff in such ease is allowed the privilege of having such examination conducted at such time and place as he desires, in case he makes a reasonable selection thereof. In this case, plaintiff without objection submitted to a physical examination by a physician selected by the defendant for that purpose. This examination was carried on to the fullest extent requested or desired by such physician, and it might well be said that the defendant could not compel the plaintiff to submit to any further inconvenience in that regard. Surely the plaintiff could not be required to submit to successive examinations until the defendant had secured expert witnesses who would testify in support of its theory of the case, The purposes of such physical examination in those jurisdictions where it is allowed is not to secure evidence to defeat the plaintiff's case, but is for the purpose of exposing the true situation, and should such examination result in opinions upon the part of the examining physicians adverse to the defendant, lie should not be allowed to have another examination with the hope of securing opinions from other experts favorable to him. When the plaintiff permits voluntarily such examination the defendant should then select the experts it desires to make it, and should not be allowed to embarrass or inconvenience the plaintiff by unnecessary repetition of such request. Here, however, upon a second demand being made upon him, the plaintiff again expressed his willingness to submit to such examination as defendant desired its physicians to make of his person at the trial of the case, and gave as his reason for...