Richardson v. Johnson
| Decision Date | 27 June 1969 |
| Citation | 60 Tenn.App. 129,444 S.W.2d 708 |
| Parties | Don Gaylon RICHARDSON, Plaintiff-in-Error, v. Frances JOHNSON, Defendant-in-Error. Don Gaylon RICHARDSON, Plaintiff-in-Error, v. Claude JOHNSON, Defendant-in-Error. |
| Court | Tennessee Court of Appeals |
Haywood & Whitaker, Lewisburg, for plaintiff in error.
Lloyd & Bussart, Lawisburg, for defendant in error.
These consolidated cases arise out of a collision in which the vehicle of defendant Don Gaylon Richardson, struck the rear of a vehicle operated by plaintiff, Mrs. Frances Johnson, and owned by plaintiff, Claude Johnson. Plaintiff, Mrs. Frances Johnson, was awarded a verdict and judgment of three thousand dollars for her personal injuries; and her husband, Claude Johnson, was awarded a verdict and judgment of one thousand five hundred dollars for property damages, medical expenses and loss of services.
The defendant has appealed in error and assigned three errors, none of which require a detailed examination of the evidence, except as to extent of injury.
The first assignment of error is:
The injury occurred on May 21, 1967. Suit was filed on May 13, 1968. The pleadings were at issue on July 27, 1968. The trial was set for October 3, 1968.
On September 6, 1968 the defendant took the discovery deposition of the plaintiffs, and the plaintiffs took the evidentiary deposition of the treating physician, Dr. Harris.
On October 1, 1968 defendant moved for an independent medical examination and for a continuance of trial until after such examination. The motion was overruled and the trial was held on October 3, 1968.
Defendant's only excuse for waiting until two days before trial to request an exmination of plaintiff is that he was misled and surprised. Defendant insists that Dr. Harris had previously reported that he 'anticipated complete recovery,' but in his deposition of September 6 estimated permament disability at ten percent. Dr. Harris explained that his change of opinion on permanent disability was based upon persistence of pain beyond anticipated recovery period.
Defendant was permitted to read as testimony a letter from Dr. John Wampler, an orthopedist who had examined Mrs. Johnson at the request of Dr. Harris. Said letter stated in part:
'In summary, I believe that any remaining symptoms are a residual of the muscle and ligament injuries and should improve with appropriate time. * * *
I would not expect that she would retain any partial permanent impairment after reaching maximum improvement.'
Defendant complains that he was not permitted to see Dr. Wampler's letter until October 1, but this does not excuse the delay in application. On September 6, defendant heard Dr. Harris testify that he had revised his opinion of permanent disability. This was almost a month before trial. If defendant was unwilling to accept Dr. Harris's revised opinion, he should have acted promptly to ask for an independent examination. Defendant's later discovery that Dr. Wampler's opinion confirmed Dr. Harris's first prognosis is no ground for a belated physical examination.
Defendant relies upon Williams v. Chattanooga Iron Works, 131 Tenn. 683, 176 S.W. 1031 (1915), yet insists:
'The appellate courts of Tennessee have not spoken in a reported case since 1915. Local rules and practices have dominated this particular question for almost fifty-five (55) years. The explosion of personal injury negligence cases, especially automobile accidents, during this period illuminates this problem and requires a well-considered updating and expansion of the law as outlined in the Williams case. We respectfully submit the Court has a duty to modernize this decision.
In response to the foregoing insistence a survey in depth has been made of the authorities on compulsory examination of a plaintiff.
In Tennessee, the leading case is Williams v. Chattanooga Iron Works, supra. In that case the plaintiff claimed to have been hit in the eye by a hot rivet, by means of which it was claimed that the eye was permanently injured, the other eye had become affected and other parts of the body were injured. On motion, unsupported by affidavit or evidence, the trial judge ordered the plaintiff to appear before a physician selected by the court,
'and there submit to such reasonable physical examination by said physician as may be deemed necessary by him to determine the condition of plaintiff's eyes and vision.' 131 Tenn. at p. 688, 176 S.W. at 1032.
Plaintiff declined to submit to the examination, his suit was summarily dismissed, and he appealed. The Court of Civil Appeals reversed and the Supreme Court granted certiorari.
The Supreme Court affirmed the Court of Civil Appeals and reversed the trial court, holding that:
Although the order for physical examination was reversed, the Supreme Court did review in great depth the history and background of the subject and did enunciate clear and specific guide-lines for ordering physical examinations of plaintiffs, viz:
1. A trial court in proper circumstances has the discretionary power to order the plaintiff to submit to physical examination to confirm his allegations of injury.
2. The power is applied with great restraint, and with a careful attention to the rights of the plaintiff.
3. Application to the court for such an order can be made only after request and refusal by plaintiff to submit.
4. The application must be made before the trial and so as not to create unnecessary delay.
5. The application must be more than a mere motion and should be supported by affidavit setting forth pertinent facts and reasons.
6. The examination cannot be had merely to obtain cumulative evidence.
7. It must be necessary to justice for the defendant.
8. It should affirmatively appear that the examination can be made without serious pain and without danger to plaintiff.
9. Conclusions of fact on the foregoing should be included in the order.
10. The judgment of the court is an exercise of judicial discretion which is subject to review on appeal.
11. The physician must be selected by the court, not the defendant, and must be competent and disinterested.
12. The expense of examination must be borne by the defendant.
13. The report of the examination must be available for inspection by both parties, but not as evidence except in cross examination of the physician if he testifies.
14. Suitable precautions should secure privacy of person and presence of the personal physician of the patient if desired.
15. Enforcement of an order for examination is by dismissal of action, not by contempt.
16. Refusal by the plaintiff of a request to submit to examination by a courtselected physician may be proven on the trial.
Since the foregoing pronouncement, only one expression of the Appellate Courts of Tennessee has been found, Helfenberger v. Harriman Northeastern R.R. Co., 156 Tenn. 14, 299 S.W. 793 (1927), wherein the Supreme Court noted that examination provided by the Workmen's Compensation Law is contrary to the common law rule as set out in Williams v. Chattanooga Iron Works.
The absence of further appellate decisions is doubtless a fulfillment of the suggestion in Williams v. Chattanooga Iron Works that, under the practice of proving the refusal of a request to submit to an examination,
'It is more than probable that such requests will generally render unnecessary any contested application to the court.' 131 Tenn. at p. 698, 176 S.W. at 1035.
It is insisted by defendant that in jurisdictions where the judge is disinclined to order examinations there is a corresponding reluctance on the part of plaintiffs to agree to impartial examinations. Defendant's brief does not comment upon the effective device suggested supra, of proving the refusal to the jury. It is not inconceivable that proper emphasis of the refusal of examination might be more impressive than the findings from the examination if conducted.
This Court, of course, has no authority to revise or reverse or 'modernize' previous holdings of the Supreme Court. Moreover, no valid occasion is shown for any such 'surgery' upon the comprehensive holdings of Williams v. Chattanooga Iron Works, supra. Its pronouncements are as applicable today as in 1915. The just discretion of the trial judges, exercised upon Timely applications and Proper showing of facts, and supervised by appellate review, is adequate to protect defendants from fraudulent and excessive personal injury claims.
A review of the authorities outside this state does not suggest any need for revision.
In 25A C.J.S. Damages § 174(1), pp. 138, 139, is found the following:
'While there is some authority to the effect that an examination must be awarded as a matter of right, (citing Bowman v. City of Davenport, 243 Iowa 1135, 53 N.W.2d 249, 63 A.L.R.2d 853) the rule supported by the weight of authority is that, in the absence of statute, the matter rests in the sound discretion of the trial court which is to be exercised in the furtherance of justice, (citing cases from 13 states) and each case is governed largely by its own facts.'
The case of Bowman v. City of Davenport, cited above,...
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