Riss & Co., Inc. v. Galloway

• Decision Date: 14 April 1941
• Docket Number: 14724.
• Parties: RISS & CO., Inc., v. GALLOWAY.
• Court: Colorado Supreme Court

114 P.2d 550

108 Colo. 93

RISS & CO., Inc., v. GALLOWAY.

No. 14724.

Supreme Court of Colorado

April 14, 1941

Rehearing Denied June 16, 1941.

In Department.

Error to District Court, Pueblo County; Harry Leddy, Judge.

Personal injury action by Ernest Galloway against Riss & Co., Inc. Judgment for the plaintiff, and the defendant brings error.

Affirmed.

John F. Mueller, of Denver, for plaintiff in error.

A. T Stewart and S. S. Packard, both of Pueblo, for defendant in error.

YOUNG Justice.

The present litigation arose out of the same accident that gave rise to Riss & Co. v. Anderson, Colo., 114 P.2d 278 the opinion in which was announced this day. The same stipulation as to defendant's negligence proximately causing the injuries was entered into. Judgment was rendered for plaintiff in the present case on the verdict of a jury that assessed his damages at $6,850, and defendant, seeking a reversal, prosecutes a writ of error.

Certain of the points here raised we think are covered fully by our opinion in the other case, namely, (1) the defense sought to be interposed that the Mountain States Telephone and Telegraph Company benefit plan is in lieu of workmen's compensation and that plaintiff's acceptance of benefits thereunder precluded his bringing suit for his injuries; and (2) the excessiveness of the verdict.

Certain other features of this case require consideration. The defendant has favored us with numerous assignments of error, to be exact, twenty-nine. In addition to those that raise points of which we disposed in our other opinion, defendant in its brief has grouped the remaining errors under five heads, namely, (1) Denial of defendant's motion for an order requiring plaintiff to submit to a spinal puncture. (2) Overruling of defendant's objection to a hypothetical question asked of Dr. Farley, one of plaintiff's expert witnesses. (3) Denial of defendant's motion to strike testimony of witness Farley and other evidence of back injuries sustained by plaintiff and to limit the question of damages. (4) Refusal to permit Drs. Baker and Woodbridge to testify when presented as witnesses by defendant. (5) Refusal of the court to give defendant's tendered instructions 1, 4, 5, and 6 and the giving of instruction No. 12.

The plaintiff was a man forty-seven years of age. He had been employed by the telephone company for twenty-five years, was foreman of the crew with which he was working, and was receiving a wage of $175 per month. From the date of the accident, under the company benefit plan, he was paid full wages for thirteen weeks, and half wages thereafter to the time of trial. On the date of the accident, October 1, 1936, he was seated in a service truck of his employer when it was hit by defendant's truck. He immediately was attacked by severe pains in his back. He was in the hospital as a result of back injuries for six months and seventeen days, four months of which time he was in a cast, and, at the time of the trial in June, 1938, he claimed he had been unable to walk and still was unable to walk without a brace. He complained of continued severe pain in his back. In addition to his back injury he sustained a bad cut on the tip of an ear, cut on left cheek, and an injury to his throat which left it sore for a time and resulted in hoarseness. The soreness no longer existed but the hoarseness had continued. He was not hoarse Before the accident. He denied that he had syphilis, or at least denied knowledge that he was afflicted with that disease. It was the theory of defendnat that he was so afflicted, and that this disease, not the accident, was the cause of his disability, if he was in fact disabled. Defendant moved the court to require plaintiff to submit to a spinal puncture to determine definitely whether he had syphilis. This motion was made at the beginning of the trial. We think, coming at that time, it was not an abuse of the court's discretion to deny it. But even had the motion been made earlier, we are of the opinion that an order granting it would have been an invasion of plaintiff's rights and beyond the court's authority without plaintiff's consent. That a court may order a plaintiff in such a case to submit to a physical examination is a proposition so well settled as to need no citation of authorities, but we think the rule may not be extended so far as to require him, under guise of a physical examination, to furnish samples of his bodily components to be used for the purpose of chemical analyses. It is not requisite that he do this to make out his own case and, a fortiori, it is not required of him in order to bolster up his adversary's defense, or perhaps, if the examination be negative, to shatter such defense entirely. The matter is one of first impression in this state, so far as we are advised, and we are furnished no citation of authority from any other jurisdiction directly in point. If there are any such contrary to the view above expressed we would not be disposed to follow them; furthermore, it is to be observed that had the fact that syphilis existed been determined with certainty, it would not have been conclusive of the case, because a man who has syphilis can sustain a back injury as the result of trauma as well as one who is free from the disease. It would have done no more than furnish evidence of something that might be the cause of plaintiff's continuing disability and might not. It would not be irrelevant as evidence because not conclusive, if the fact were ascertainable without an unwarranted invasion of plaintiff's right to the security of his person. Ordinarily any fact which makes probable the existence of another fact in dispute is relevant to prove the disputed fact.

This brings us to the second point alleged by defendant as constituting error, namely, the overruling to plaintiff's hypothetical question to Dr. Farley. We have examined the record and think the question contains no assumptions that are not fairly to be made from the testimony in the record either as elicited from other witnesses, or from facts which Dr. Farley himself testified were disclosed by his examination. When asked whether certain pathological conditions disclosed by the X-ray plate might be the result of a severe injury that occurred as of October 1, 1936, he answered, 'I would say very likely so.' On...