Shepard v. Missouri Pacific Ry. Co.

• Decision Date: 30 April 1885
• Citation: 85 Mo. 629
• Parties: SHEPARD v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

85 Mo. 629

SHEPARD

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

H. S. Priest with T. J. Portis for appellant.

(1) The court erred in granting the order to examine Dr. Staples on interrogatories. (2) The court erred in refusing to order the plaintiff, under the peculiar circumstances of this case, to submit herself to an examination by competent and fit physicians and surgeons. Brown v. Brown, 1 Haggard, 523; Briggs v. Morgan, 3 Phillimore 325; Welde v. Welde, 2 Lee 580; 2 Prob. and Div. 287; 3 Prob. and Div. 126; Newell v. Newell, 9 Paige 26; Walsh v. Sayre, 52 How. Pr. 334; Schroeder v. Ry., 47 Ia. 375; Ry. v. Thul, 29 Kas. 466.Leonard Wilcox for respondent.

(1) There was no error in granting the commission to examine Dr. Staples on interrogatories. R. S., 2157; Basket v. Toosey, 6 Madd. 261; Mitford's Eq. Pl. (1876) 241; Prackett v. Dudley, 1 Cow. 209; Weeks on Dep., sec. 176; Forrest v. Forrest, 3 Bosw. 669; 1 Greenl. Ev. (14 Ed.) sec. 320; Ducket v. Williams, 1 Crom. & J. 512. (2) The record fails to disclose any error by the court in refusing to compel the plaintiff to submit to further examination by surgeons. Lloyd v. Ry., 53 Mo. 509; 1 Greenl. Ev., sec. 560; 2 Tidd's Prac. 802; Roberts v. Ry., 29 Hun (N. Y.) 154; Parker v. Enslow, 102 Ill. 279; Cook v. Manufacturing Co., 29 Hun 643; Gartside v. Ins. Co., 76 Mo. 446; Cook v. Lalance, etc., 29 Hun 643.

HENRY, C. J.

Plaintiff sued defendant to recover for personal injuries sustained by her, occasioned by a collision of a train of defendant's cars, in which she was a passenger, with another train. On the trial she had a judgment for four thousand dollars, from which this appeal is prosecuted.

But two errors are assigned which are here relied upon by appellant: First, that the court erred in granting the order to examine Dr. Staples upon interrogatories. Second. In refusing to order plaintiff to submit herself to an examination by competent and fit physicians and surgeons. As to the first point the statute provides as follows:

“Section 2144. When a party to any suit pending in any court of record in this state, shall make application to such court, in term time, or to the judge thereof in on, for a commission to take the examination of witnesses, and shall support the application by affidavit and shall have given to the adverse party reasonable notice of such application, the court or judge may, upon such terms as it may think proper, award such commission.”

Section 2145 relates wholly to the appointment by the court of the office and the commands of the commission.

“Sec. 2146. The interrogatories shall be annexed to the commission, and shall be drawn and signed by the parties, or their counsel in the cause, under the sanction and direction of the court, or judge thereof.”

This suit was begun July 9, 1881. The application for a commission to examine Dr. Staples was made February 10, 1882, and the trial commenced March 9, 1882. All the requisites for obtaining a commission to examine the witness, were complied with. Specific objections were made by the defendant to granting the order, but the court overruled them, sustained the motion, approved the interrogatories, and gave defendant until February 20, 1882, to file cross-interrogatories. This, defendant declined to do, insisting upon a right to cross-examine the witness, after hearing his answer to the interrogatories. The grounds upon which the plaintiff asked for the commission were, that the witness was a physician and surgeon, and had made an examination of plaintiffs injuries, and that his testimony was material to plaintiff's case. That the witness resided at Minona, in the state of Minnesota, and that it was difficult to fix any definite time, or place, to take his deposition, on account of his frequent absence from Minona.

The statute does not specify any state of facts upon which the commission is to be allowed, leaving that mainly to the discretion of the trial court, and we cannot say that that discretion was abused, or harshly, or oppressively exercised, in this case. A large discretion is also given to the court, as to the terms upon which it will grant the commission. No terms were prescribed by the court, except that the defendant should have ten days within which to file cross-interrogatories. The defendant's claim of a right to cross-examine the witness, after he had answered the interrogatories of the party taking his testimony, might, with equal propriety, be made in every case, and thus occasion the very delay and uncertainty in procuring the testimony which the above sections seem to have been intended to avoid. The right to cross-examine would carry with it the right to know when and where the witness would be examined, and at last drive the party to take his deposition. It would practically render the above provisions nugatory.

As to the second alleged error, on the seventh of March, 1882, before the trial, the defendant filed a motion as follows:

“The defendant herein would respectfully show the honorable court, that the plaintiff in this cause, as the defendant is informed and believes, claims to have received serious and permanent injuries to the coccyx, or terminal bone of the spinal column, by reason of the charge of negligence made herein in her petition. Defendant further avers that the true and real extent of plaintiff's said injuries, if any, can only be ascertained by a personal, physical examination of her by competent and skilled surgeons and physicans. Wherefore, defendant prays that this court, before proceeding with the trial of this cause, make a proper order in that behalf, requiring said plaintiff, Eliza T. Shepard, to submit to an examination by competent and skilled physicians and surgeons, that they may determine the true condition of her health, and the character and extent of her injuries, if any, in order that it may be known whether she is, or was, suffering from any disability, and if so, whether it originated from the cause claimed by her in her petition. Defendant further prays that if the court orders an examination, as hereinbefore prayed for, that it be made by a proper number of disinterested surgeons, one-half of whom shall be selected by the plalintiff, the other half by the...