Wanek v. City of Winona

• Decision Date: 17 November 1899
• Docket Number: 11,807 - (162)
• Citation: 80 N.W. 851,78 Minn. 98
• Parties: FRANK WANEK v. CITY OF WINONA
• Court: Minnesota Supreme Court

80 N.W. 851

78 Minn. 98

FRANK WANEK v. CITY OF WINONA

Nos. 11,807 - (162)

Supreme Court of Minnesota

November 17, 1899

Action in the district court for Winona county to recover $10,050 for personal injuries. The case was tried before Snow, J and a jury, which rendered a verdict in favor of plaintiff for $4,000. The court made an order granting a motion for a new trial, unless plaintiff should consent to a reduction of the verdict to $3,000 and otherwise denying the motion. Plaintiff consented to the reduction, and from the order defendant appealed. Reversed.

SYLLABUS

Personal Injury -- Physical Examination of Plaintiff.

In a civil action for personal injuries, in which the plaintiff tenders an issue as to his physical condition, the trial court has the power, in a proper case, upon proper safeguards to protect the rights of both parties, to order the plaintiff to submit to a physical examination of his person in order to ascertain the nature and extent of his injuries, and, if he refuses to do so, his action should be dismissed. Facts considered, and held, that the court erred in denying defendant's application for an order requiring plaintiff to submit to a physical examination of his person.

W. A Finkelnburg and O. B. Gould, for appellant.

The overwhelming weight of authority sustains the power of the court, as a matter of right, to order an examination. Hatfield v. St. Paul & D.R. Co., 33 Minn. 130; Schroeder v. Chicago, 47 Iowa 375; White v. Milwaukee, 61 Wis. 536; Sibley v. Smith, 46 Ark. 275; Miami v. Baily, 37 Oh. St. 104; Alabama v. Hill, 90 Ala. 71; Graves v. City, 95 Mich. 266; Atchison v. Thul, 29 Kan. 466; Richmond v. Childress, 82 Ga. 719; Sioux City v. Finlayson, 16 Neb. 578; Fullerton v. Fordyce, 121 Mo. 1; Houston v. Berling, 14 Tex. Civ. App. 544; Belt v. Allen (Ky.) 44 S.W. 89; St. Louis v. Dobbins, 60 Ark. 481; 1 Thompson, Trials, § 859; 2 Jones, Ev. §§ 398, 399.

H. M. Lamberton and Brown & Abbott, for respondent.

The court had power in its discretion to deny the application for an examination. Hatfield v. St. Paul & D.R. Co., 33 Minn. 130. It is true that where the court has discretion, but refuses to exercise it on the ground that such discretion does not exist, error is committed. But the reason for the rule is that if the discretion had been exercised, it might have been in favor of the complaining party. Leonard v. Green, 30 Minn. 496; Seibert v. Minneapolis & St. L. Ry. Co., 58 Minn. 58. In this case the denial was on the merits. The court has, however, no power to grant such examination. Union Pacific Ry. Co. v. Botsford, 141 U.S. 250; Illinois Cent. R. Co. v. Griffin, 80 F. 278; Roberts v. Ogdensburgh, 29 Hun, 154; McQuigan v. Delaware, 129 N.Y. 50; Pennsylvania v. Newmeyer, 129 Ind. 401; Parker v. Enslow, 102 Ill. 272; Peoria v. Rice, 144 Ill. 227; Cole v. Fall Brook, 159 N.Y. 59.

OPINION

MITCHELL, J.

This action was brought to recover damages for personal injuries caused by the alleged negligence of the city in allowing a public sidewalk to become and remain out of repair, and in an unsafe condition for public travel.

The only question which we find it necessary to consider is whether the trial court erred in denying the application of the defendant to require the plaintiff to submit himself to a physical examination by two or more competent and disinterested physicians, to be named by the court, in order to ascertain the nature and extent of his injuries. The alleged injuries were sustained October 19, 1898. The plaintiff's notice of his claim for damages was served on the city November 14, 1898. This action was commenced December 9 of the same year, and defendant's application for a physical examination was made May 1, 1899, the first day of the term at which the action was tried. The complaint alleged that the injuries would be permanent, and the existence or nonexistence of at least some of the injuries could only be ascertained by a physical examination of plaintiff's person. The trial court denied the application upon the grounds, as shown by his memorandum: First, that he had no power in any case to order a party to submit to a physical examination of his person; and, second, even if he had the power, he would, in the exercise of his discretion, have refused, under the circumstances of the case, to grant defendant's application.

1. We are very clearly of the opinion that the court has the power, in a case of this kind, to order the plaintiff to submit to a physical examination of his person. We shall not go into any extended discussion of a question which has been so much and so often discussed by courts and text writers. Upon both principle and reason we are of opinion that in a civil action for physical injuries, where the plaintiff tenders an issue as to his physical condition, and appeals to the courts of justice for redress, it is within the power of the trial court, in the exercise of a sound discretion, in proper cases, upon an application reasonably made, under proper safeguards designed to preserve the rights of both parties, to order such an inspection, and to require the plaintiff to submit to it under the penalty of having his action dismissed in case he refuses to do so.

We are aware that there are some eminent authorities to the contrary, but, with all due deference to them, we cannot avoid thinking that they base their conclusion upon a fallacious and somewhat sentimental line of argument as to the inviolability and sacredness of a man's own person and his right to its possession and control free from all restraint or interference of others. This, rightly understood, is all true, but his right to the possession and control of his person is no more sacred than the cause of justice. When a person appeals to the state for justice, tendering an issue as to his own physical condition, he impliedly consents in advance to the doing justice to the other party, and to make any disclosure which is necessary to be made in order that justice may be done. No one claims that he can be compelled to submit to such...