Williams v. Chattanooga Iron Works

• Decision Date: 22 May 1915
• Citation: 176 S.W. 1031,131 Tenn. 683
• Parties: WILLIAMS v. CHATTANOOGA IRON WORKS.
• Court: Tennessee Supreme Court

176 S.W. 1031

131 Tenn. 683

WILLIAMS v. CHATTANOOGA IRON WORKS.

Supreme Court of Tennessee.

May 22, 1915

Certiorari to Court of Civil Appeals.

Action by C. P. Williams against the Chattanooga Iron Works. There was a judgment of the Court of Civil Appeals, reversing a judgment of dismissal and remanding the cause for further proceedings, and defendant brings certiorari. Judgment of Court of Civil Appeals affirmed, and cause remanded for further proceedings.

I. H Peres and R. E. King, both of Memphis, for plaintiff.

Brown & Anderson, of Memphis, for defendant.

NEIL C.J.

The plaintiff filed his declaration on the 21st day of September 1914, alleging that by the negligence of the defendant, the Chattanooga Iron Works, he was injured in the following manner: That is to say, while assisting in the insertion of a rivet in some metal sheeting, he was struck in the eye by the rivet, by means of which that eye was seriously and permanently injured, and that, as a result thereof, the other eye had also become affected; likewise that other parts of his body were injured. On the 26th of September, the defendant filed its plea of not guilty.

On the 16th of November the defendant moved the court--

"to order a physical examination to be made of the plaintiff by expert physicians and oculists, to be appointed by the court for the purpose of determining whether or not the injuries claimed by the plaintiff to have been inflicted upon his eyes exist."

The motion continues:

"The defendant shows that the injuries complained of are latent, and not perceptible to experts, and that the ends of justice require that the defendant be advised to what extent, if any, the eyes or sight of the plaintiff have been injured. The defendant offers and agrees to pay the fees and charges made by the experts for making such examination."

The motion was not supported by affidavit or evidence of any kind.

On this motion the trial court--

"ordered that Dr. E. C. Ellett, a physician selected by the court, be appointed to make such examination, the costs of which will be paid by the defendant, the Chattanooga Iron Works. It is further ordered that the plaintiff, C. P. Williams, do present himself at the office of said Dr. E. C. Ellett, No. 1722 Exchange Building, on Saturday, December 5, 1914, at 10 o'clock a. m., and there submit to such reasonable physical examination by said physician as may be deemed necessary by him to determine the condition of plaintiff's eyes and vision." Thereupon the plaintiff--

"excepted to the action of the trial judge in ordering him to submit his person to a physical examination, and denied the power of the court to order such examination under the existing circumstances, and declined to submit to same, and defendant moved in open court that the suit be dismissed; whereupon the court dismissed his suit, to which he excepted and prayed an appeal," etc.

Pursuant to the appeal, the record was transmitted to the Court of Civil Appeals, and there the judgment of the trial court was reversed, and the cause remanded for further proceedings. The case was then brought to this court by the writ of certiorari.

The learned Court of Civil Appeals held that the right to direct the examination existed in the trial court, but that the order was not sufficiently specific in the way of protecting the plaintiff from oppression.

In this court the order is objected to by the plaintiff on the same grounds, and also the power of the court to grant such an order at all is challenged.

The first question therefore is whether the trial court had the right to order a physical examination of the plaintiff to be made, or rather, stating the question in its most general form, whether a trial court has the right to compel the physical examination of a plaintiff suing for personal injuries.

The subject has received extensive examination in a series of cases in this country. The power is affirmed in the following jurisdictions: Alabama, Arkansas, California, Colorado, Georgia, Indiana, Iowa, Kansas, Kentucky, Maryland, Michigan, Minnesota, Missouri, Nevada, Ohio, Oklahoma, North Dakota, Washington, and Wisconsin. It is authorized by statute in New York, New Jersey, and Florida. It is denied in Illinois, Montana, South Carolina, Utah, Texas, and in the Supreme Court of the United States. We shall not refer directly to cases from all of these jurisdictions, but they will be found cited in the text and notes of the following cases, which are readily accessible everywhere. These cases adequately discuss the question, viz.: Richmond & D. R. Co. v. Childress, 82 Ga. 719, 9 S.E. 602, 3 L. R. A. 808, 14 Am. St. Rep. 189; Alabama & G. S. R. Co. v. Hill, 90 Ala. 71, 8 So. 90, 9 L. R. A. 442, 24 Am. St. Rep. 764; Graves v. Battle Creek, 95 Mich. 266, 54 N.W. 757, 19 L. R. A. 641, 35 Am. St. Rep. 561; Hall v. Manson, 99 Iowa, 698, 68 N.W. 922, 34 L. R. A. 207; O'Brien v. La Crosse, 99 Wis. 421, 75 N.W. 81, 40 L. R. A. 831; Lane v. Spokane Falls & N. R. Co., 21 Wash. 120, 57 P. 367, 46 L. R. A. 154, 75 Am. St. Rep. 821; Wanek v. Winona, 78 Minn. 98, 80 N.W. 851, 46 L. R. A. 448, 79 Am. St. Rep. 354; South Bend v. Turner, 156 Ind. 418, 60 N.E. 271, 54 L. R. A. 396, 83 Am. St. Rep. 200; Atchison, T. & S. F. R. Co. v. Palmore, 68 Kan. 554, 75 P. 509, 64 L. R. A. 90, 93; Western Glass Mfg. Co. v. Schoeninger, 42 Colo. 362, 94 P. 342, 15 L. R. A. (N. S.) 663, 126 Am. St. Rep. 165; Johnston v. Southern Pacific R. Co., 150 Cal. 542, 89 P. 348, 11 Ann. Cas. 841; Murphy v. Southern Pac. R. Co., 31 Nev. 141, 101 P. 322, 21 Ann. Cas. 502; Chicago, R.I. & P. R. Co. v. Hill, 36 Okl. 540, 129 P. 13, 43 L. R. A. (N. S.) 622; Brown v. Chicago, M. & S. P. R. Co., 12 N.D. 69, 95 N.W. 153, 102 Am. St. Rep. 564. Cases on the affirmative side of the question, making important distinctions, are Bagwell v. Atlanta Consolidated Street Railway Co., 109 Ga. 612, 34 S.E. 1018, 47 L. R. A. 487, and Wittenberg v. Onsgard, 78 Minn. 342, 81 N.W. 14, 47 L. R. A. 141. A decision of the New York Court of Appeals prior to the passage of the act in that state authorizing an examination is McQuigan v. Delaware, L. & W. R. Co., 129 N.Y. 50, 29 N.E. 235, 14 L. R. A. 466, 26 Am. St. Rep. 507. A decision of that court subsequent to the act is Lyon v. Manhattan R. Co., 142 N.Y. 298, 37 N.E. 113, 25 L. R. A. 402. A decision of the Supreme Court of Florida subsequent to the passage of the act in that state is State ex rel. Carter v. Call, 64 Fla. 144, 59 So. 789, 41 L. R. A. (N. S.) 1071.

Some of the cases from the states in opposition are: Parker v. Enslow, 102 Ill. 272, 40 Am. Rep. 588; Stack v. New York, N.H. & H. R. Co., 177 Mass. 157, 58 N.E. 686, 52 L. R. A. 328, 83 Am. St. Rep. 269; Austin & N.W. R. Co. v. Cluck, 97 Tex. 176, 77 S.W. 403, 64 L. R. A. 496, 104 Am. St. Rep. 863, 1 Ann. Cas. 261; May v. N.W. P. R. Co., 32 Mont. 529, 81 P. 328, 70 L. R. A. 114, 4 Ann. Cas. 605; Larson v. Salt Lake City, 34 Utah, 321, 97 P. 483, 23 L. R. A. (N. S.) 462; Union Pac. R. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734. These cases give a full view of the grounds on which the opposition to the practice is founded. It is conceded, however, in the case last cited, and also in Austin & N.W. R. Co. v. Cluck, that the refusal of the plaintiff to consent to an examination is matter for pertinent comment to the jury; and in Houston & T. C. R. Co. v. Anglin, 99 Tex. 349, 89 S.W. 966, 2 L. R. A. (N. S.) 386, is considered under what circumstances arises a waiver of the right to object to an examination.

One of the chief questions discussed in the cases is the basis of the right to make the examination. In some it is insisted that it is a right inherent in the courts for the purpose of effecting justice, and in those which object to the right it is insisted that no such power inheres in courts, and that it can be conferred only by statute. It is denied in the negative cases that such practice is recognized in the common law. In many of the affirmative cases it is insisted that such right does exist at common law. The weight of authority is so great in favor of the right to order the examination that we do not deem it necessary to go at length into the reasons so fully discussed in the cases which we have cited. We shall only add, on this branch of the case, that we believe the right was exercised at common law, although not in precisely the same way in which it is practiced at this time.

At common law there was an old action known as an appeal of mayhem. There were several of these old actions, one called an appeal of death, another an appeal of larceny, another an appeal of rape, and the fourth an appeal of mayhem. It seems that "an appeal" in the sense in which it was used in these ancient actions was a party's private action, seeking revenge for the injury done him, at the same time prosecuting for the crown in respect of the offense against the public. 1 Bac. Abridg. 291. The nature of the action is best illustrated by the appeal of larceny. In the authority referred to it is said:

"An appeal of larceny is an action which a person robbed of goods may bring against the felon, in which there shall be a restitution of the goods, and the offender to suffer such punishment as if he were convicted at the suit of the king."

That is, there was a combined action both for restitution and for punishment. Id. 292. An appeal of mayhem was for any hurt done to a man's person, whereby he was rendered less able in fighting to annoy others, or defend himself. Id. 293. The demand was set forth in a declaration describing the offense with the greatest certainty, also showing in what part of the body the wound was given, in the case of mayhem. Id. 297. Later on in the same work (volume 9, p. 554)...