Richmond & D. R. Co v. Childress

• Decision Date: 13 April 1889
• Citation: 9 S.E. 602,82 Ga. 719
• Parties: Richmond & D. R. Co. v. Childress.
• Court: Georgia Supreme Court

9 S.E. 602

(82 Ga. 719)

Richmond & D. R. Co.

v.Childress.

Supreme Court of Georgia.

April 13, 1889.

Conduct op Trial—Physical Examination.

It is within the discretion of the trial court to require the plaintiff, suing for a physical injury alleged to be permanent, to submit to an examination by competent physicians, at the instance and at the expense of the defendant in the action, to ascertain the nature, extent, and probable duration of the injury, so as to afford means of proving the same at the trial. By Code, § 206, every court has power to control, in furtherance of justice, the conduct of all persons connected with a judicial proceeding before it, in every matter appertaining thereto.

(Syllabus by the Court.)

Error from superior court, Fulton county; Marshall J. Clarke, Judge.

Pope Barrow and Jackson & Jackson, for plaintiff in error. Qartrell & Ladson, and J. T. Glenn, contra.

Bleckley, C. J. Childress, a lad 13 or 14 years of age, recovered a verdict against the railroad company for $3,500, on account of a personal injury alleged to be permanent. The seat of the injury was the chest. The company made a motion for a new trial on several grounds, the fourth being as follows: "Because the court erred in declining to order the examination of Childress by physicians to be appointed by the court on motion of defendant before the jury was impaneled, but after the case was called for trial, for the purpose of determining whether or not he had been permanently injured as claimed, the said defendant offering to pay the expense of such examination by the physicians selected by the court." The court ruled that it had no power to order the examination without the plaintiff's consent. We understand the court as putting the refusal solely upon the ground of a defect of power. The Code, (§ 206,) declares that "every court has power * * * to control, in furtherance of justice, the conduct of its officers, and all other persons connectedwith a judicial proceeding before it, in every matter appertaining thereto." It can certainly admit of no doubt that, in a proper case for such examination, the cause of justice would be subserved by it, and the decided weight of modern authority is that courts have such power. A very full and clear statement of the matter is found in 1 Thomp. Trials, § 859. The language of the author is as follows: "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 a 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. Another court has held that, where the plaintiff in such an action alleges that his injuries are of a permanent nature, the defendant is entitled,...