Western Glass Mfg. Co. v. Schoeninger

• Decision Date: 02 March 1908
• Citation: 94 P. 342,42 Colo. 357
• Parties: WESTERN GLASS MFG. CO. v. SCHOENINGER.
• Court: Colorado Supreme Court

94 P. 342

42 Colo. 357

WESTERN GLASS MFG. CO. v. SCHOENINGER.

Supreme Court of Colorado

March 2, 1908

Appeal from District Court, City and County of Denver; Sam'l L Carpenter, Judge.

Action by Max Schoeninger against the Western Glass Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed.

Vaile, Dunham & McAllister, for appellant.

Duncan McPhail, for appellee.

MAXWELL J.

Plaintiff below, appellee here, a minor, about 16 years of age, by his next friend and natural guardian, his mother sued to recover damages alleged to have been sustained through the negligence of appellant in failing to provide suitable and safe machinery and appliances with which to perform the work appellee was required to do. The complaint alleged that the injuries received resulted in total and permanent disability. Eight days preceding the date when the cause was set for trial a demand in writing was made by the attorneys for defendant upon the attorney for plaintiff for an opportunity to have a physical examination of plaintiff made, before the day of trial, by a competent physician to be selected by the attorneys for defendant, or by the judge of the court before whom the case was to be tried. This demand was refused, upon the ground, as stated, that the accident to plaintiff had happened so long ago that it would not be fair to plaintiff to have a physical examination of plaintiff made at that time. About 13 months had elapsed between the accident and the date of the demand. On the day of the trial before the taking of testimony began, defendant moved the court for an order requiring plaintiff to submit to a physical examination by some reputable and competent physician, to be appointed by the court. The motion set forth the necessity for such examination, the written demand for same, and was supported by an affidavit. This motion was denied, an exception saved, and the assignment of error based thereon will be the only one considered in the determination of this appeal.

The question thus presented is a very important one, and is submitted to this court for the first time, although the practice of granting such motions prevails in many of the nisi prius courts of this state. Courts are instituted by the state to administer, so far as possible, impartial justice to contending parties. The plaintiff of his own motion enters the court, seeking justice for an alleged wrong inflicted, or to prevent a wrong threatened. In such contests it is the duty of the court to bestow upon the litigants full and exact justice. This cannot be done until the court obtains the full and exact truth touching all matters in issue, so far as the same can be obtained by exhausting all methods available to the full attainment of that end. Plaintiff is a voluntary actor, appealing to the sovereign power of the state for justice, impliedly assenting to do justice to the other party, and impliedly agreeing, in advance, to make any disclosure which is necessary to be made, in order that justice may be done. Approximate justice, as the best the courts can do in the administration of the law, must often be accepted, but while the law is satisfied with approximate justice where exact justice cannot be obtained, the court should recognize no rules which stop at the first, when the second is within reach. In actions of this character a plaintiff has under his control evidence which will reveal the truth more clearly than any other which could be introduced.

In the dissenting opinion of Mr. Justice Brewer in Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 258, 11 S.Ct. 1000, 1003, 35 L.Ed. 734, it is said: 'The end of litigation is justice. Knowledge of the truth is essential thereto. It is conceded and it is a matter of frequent occurrence, that in the trial of suits of this nature the plaintiff may make in the courtroom, in the presence of the jury, any not indecent exposure of his person to show the extent of his injuries; and it is conceded, and also a matter of frequent occurrence that in private he may call his personal friends and his own physicians into a room, and there permit them a full examination of his person, in order that they may testify as to what they see and find. In other words, he may thus disclose the actual facts to the jury if his interest require; but by this decison, if his interests are against such a disclosure, it cannot be compelled. It seems strange that a plaintiff may, in the presence of a jury, be permitted to roll up his sleeve and disclose on his arm a wound of which he testifies; but when he testifies as to the existence of such a wound, the court, though persuaded that he is perjuring himself, cannot require him to roll up his sleeve and thus make manifest the truth, nor require him in the like interest of truth, to step into an adjoining room, and lay bare his arm to the inspection of surgeons. It is said that there is a sanctity of the person which may not be outraged. We believe that truth and justice are more sacred than any personal consideration; and if in other cases in the interests of justice, or from considerations of mercy, the courts may, as they often do, require such personal examination, why should they not exercise the same power in cases like this, to prevent wrong and injustice?' If the court is powerless, in actions for personal injuries, to require a plaintiff to submit himself to a physical examination to the end that the truth as to their nature, effect, and possible duration may be ascertained, when he, by his suit, has made them the subject of judicial investigation, then the law will permit him to disclose just so much and such parts of the facts as in his judgment, would benefit his case, at the expense of his adversary, and to invoke the court's aid to compensate him for the injury through a partial and one-sided investigation. Under such circumstances, the court would be an instrument for the accomplishment of the grossest injustice, and therefore the object for which courts are instituted would be defeated. On the other hand, if the plaintiff's claim is meritorious, if he has suffered the injuries he complains of, and on account of which he prosecutes his action, he has nothing to fear from the most rigid examination. His case will only be strengthened thereby.

Beginning with the case of Loyd v. Hannibal, etc., Ry. Co., 53 Mo. 509 decided in 1873, there have been many adjudications upon the power of trial courts to order a physical examination of the plaintiff, in suits for personal injuries, upon the request of defendant. In this first case the power was denied, but it has since been affirmed by the Supreme Court of Missouri in Shepard v. Mo. P. Ry. Co., 85 Mo. 629, 55 Am.Rep. 390; Sidekum v. Wabash, etc., R. R. Co., 93 Mo. 400, 4 S.W. 701, 3 Am.St.Rep. 549; Owens v. Kansas City, etc., Ry. Co., 95 Mo. 169, 8 S.W. 350, 6 Am.St.Rep. 39. In 1877, in the well-considered case of Schroeder v. Chicago, etc., Ry. Co., 47 Iowa 375, the power was affirmed, and the rule there announced has been followed in the following cases: Alabama G. S. R. Co. v. Hill, 90 Ala. 71, 8 So. 90, 9 L.R.A. 442, 24 Am.St.Rep. 764; King v. State, 100 Ala. 85, 14 So. 878; Sibley v. Smith, 46 Ark. 275, 55 Am.Rep. 584; St. L. S.W. R. Co. v. Dobbins, 60 Ark. 481, 30 S.W. 887, 31 S.W. 147; Richmond & D. R. Co. v. Childress, 82 Ga. 719, 9 S.E. 602, 3 L.R.A. 808, 14 Am.St.Rep. 189; So. Bend v. Turner, 156 Ind. 418, 60 N.E. 271, 54 L.R.A. 396, 83 Am.St.Rep. 200; Pens. Co. v. Newmeyer, 129 Ind. 401, 28 N.E. 860; Hall v. Manson, 99 Iowa 698, 68 N.W. 922, 34 L.R.A. 207; A., T. & S. F. Ry. Co. v. Thul, 29 Kan. 466, 44 Am.Rep. 659; City v. Gilliland, 63 Kan. 165, 65 P. 252, 88 Am.St.Rep. 232; A., T. & S. F. Ry. Co. v. Palmore, 68 Kan. 545, 75 P. 509, 64 L.R.A. 90; Belt Electric L. Co. v. Allen, 102 Ky. 551, 44 S.W. 89, 80 Am.St.Rep. 374; Graves v. Battle Creek, 95 Mich. 266, 54 N.W. 757, 19 L.R.A. 641, 35 Am.St.Rep. 561; Hatfield v. St. Paul & D. R. Co., 33 Minn. 130, 22 N.W. 176, 53 Am.St.Rep. 14; Wanek v. Winona, 78 Minn. 98, 80 N.W. 851, 46 L.R.A. 448, 79 Am.St.Rep. 354; Shepard v. Mo. P. R. Co., 85 Mo. 629, 55 Am.Rep. 390; Sidekum v. Wabash, etc., R. R. Co., 93 Mo. 400, 4 S.W. 701, 3 Am.St.Rep. 549; Owens v. K. C., St. J. & C. B. R. Co., 95 Mo. 169, 8 S.W. 350, 6 Am.St.Rep. 39; Stuart v. Havens, 17 Neb. 211, 22 N.W. 419; Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578, 20 N.W. 860, 49 Am.Rep. 724; Brown v. C., M. & St. P. R. Co., 12 N.D. 61, 95 N.W. 153, ...