State v. Call

• Decision Date: 08 July 1912
• Citation: 59 So. 789,64 Fla. 144
• Parties: STATE ex rel. CARTER et al. v. CALL, Judge.
• Court: Florida Supreme Court

59 So. 789

64 Fla. 144

STATE ex rel. CARTER et al. v. CALL, Judge.

Florida Supreme Court

July 8, 1912

On Rehearing, Oct. 17, 1912.

Application for mandamus by the State, on the relation of Dartha Carter and Ezekiel M. Carter, her husband, against Hon. Rhydon M Call, Judge of the Fourth Judicial Circuit. Writ quashed and dismissed.

Syllabus by the Court

SYLLABUS

Section 3151, General Statutes of 1906, giving a trial court discretionary power, in a suit for damages for personal injury, to appoint a physician to make a physical examination of an injured party, is to be construed with due regard to the rights of the parties, and its scope is not to be extended beyond the terms of the statute; and if an X-ray examination is deemed necessary, he may make such examination himself, but he is not authorized to take X-ray photographs of the person of the injured party; nor is he authorized to appoint a photographer to use the X-ray, or to take X-ray photographs, without the consent of the injured party.

If a physician in appointed by a trial court to make the physical examination provided for in section 3151, General Statutes of 1906, and the injured party refuses to permit the physician to make an X-ray examination of her person when such an examination is necessary, the trial court commits no error in continuing the case because of this action of the injured party.

COUNSEL Bisbee & Bedell and A. H. King, all of Jacksonville, for relators.

Alex. St. Clair Abrams, of Jacksonville, for respondent.

OPINION

HOCKER J.

This is a mandamus proceeding instituted against the judge of the Fourth judicial circuit of Florida, and comes up on a motion to quash the writ.

It appears that the relators brought an action at law for damages for personal injuries sustained by relator Dartha Carter against the Florida East Coast Railway Company. Declaration was filed October 3, 1910. Pleas were filed and issue joined in September, 1911. The defendant company moved the court to require the relator Dartha Carter to submit to such a physical examination of her person as shall be reasonably sufficient to determine her physical condition at the time of trial, and the nature and extent of her alleged injuries. The circuit judge granted the motion, and appointed a physician of Jacksonville, Fla., to examine the said Dartha Carter in the presence of one or more physicians or attendants of the said Dartha, if she desired their presence. The order required the physician to make and file a report in the clerk's office, and furnish a copy of the same to the attorneys. On the 13th of February, 1912, the physician addressed a letter to the circuit judge, filed in the case stating that he was unable to determine the exact and true character of the physical conditions 'presenting,' due to the refusal of Dartha Carter herself, and through her attorney, Mr. A. H. King, to consent to an X-ray examination being made; such X-ray examination being in his opinion absolutely necessary. A continuance of the case was applied for by the defendant, and granted, on the ground, amongst others, that Dartha Carter refused to submit to the taking of an X-ray examination. On May 21 1912, the physician appointed by the judge informed him by letter that Dartha Carter still refused to submit to an X-ray examination. On June 3, 1912, the case was called for trial, and the plaintiffs announced ready. The defendant moved for a continuance, on the ground that Dartha Carter still refused to submit to an X-ray examination. Plaintiffs announced in open court that photographs of Dartha Carter had been recently taken by Dr. Carey P. Rogers, an eminent surgeon of the highest professional attainments, of Jacksonville, which exhibited fairly Dartha Carter's condition; that these were ready to be offered in open court, and had been offered to the physician appointed by the court; that Dartha Carter had at no time refused to submit to an X-ray examination by the physician appointed by the court, who had at no time offered to take such pictures, but had insisted that they be taken by a photographer personally objectionable to the plaintiffs, and plaintiffs offered to prove that the photographer designated by the physician appointed by the court was an improper person to take said photographs. The judge replied in substance: 'I have made an order for an examination by Dr. L.; that order must be complied with. If you have any objections to the person designated by Dr. L. to take the pictures, you must make those objections to Dr. L. Until that order is complied with this case cannot be tried, and the motion for continuance is granted.' The plaintiffs' counsel excepted to this ruling, and requested the judge to enter a judgment of nonsuit in the said cause, which request the judge responded to in substance, as follows: 'No jury has been impaneled in this case. There can be no nonsuit. The order will be that the case stand continued.' The case was continued. To the ruling refusing a nonsuit, and continuing the case, the plaintiffs excepted. The relators allege that, as the judge will not enter a nonsuit and will not proceed, they are remediless.

The authority of the court to appoint a physician to make a physical examination of a party suing for damages for physical injury rests in this state...