Sioux City and Pacific Railroad Company v. Finlayson. SIOUX CITY AND PACIFIC RAILROAD COMPANY V. FINLAYSON. (16 Neb. 578.) Trial-physical examination of plaintiff. On the trial of an action of damages for a personal injury, the court may refuse to order the plaintiff to submit to a physical examination by the defendant's medical witnesses, in private, it not appearing to be necessary, and the plaintiff having already submitted to an examination by such wit. nesses in the presence of the jury. (See note, p. 726.) A CTION for personal injury by negligence. The opinion states the point. The plaintiff had judgment below. Joy, Wright & Hudson and L. W. Osborn, for plaintiff in error. George W. Doane and Ballard & Walton, for defendant in error. REESE, J. This is an action against the plaintiff in error, the Sioux City and Pacific Railroad Company, for damages resulting from a personal injury caused by the explosion of an engine of said company, and on which defendant in error was at the time engaged and employed as an engineer. The petition alleges that the engine became and remained defective and dangerous through the negligence of the plaintiff in error. The answer of plaintiff in error admitted the explosion of the boiler on the engine, but denied all negligence or carelessness of the company; denied that the plaintiff had received the injuries as stated, and averred that the explosion was caused by the contributory negligence of the defendant in error. There was a jury trial which resulted in a verdict of $9,250 in favor of defendant in error. [Omitting other points.] The record shows that after the defendant in error had introduced all his testimony on the trial, and had rested his case, the "defendant (plaintiff in error) moved the court to direct the plaintiff to allow the physicians called on the part of the defense to make an examination of his person with reference to his alleged injuries, for which he now seeks to recover. The court ruled that it had no Sioux City and Pacific Railroad Company v. Finlayson. power to make such an order, to which ruling defendant excepts." Error is assigned in this court based upon this record. If such examination was proper to be made, and if the defendant in error upon application had refused to allow it to be done, we are inclined to believe the court had the power to make and enforce such an order. It is fundamental that if a decision or ruling of a court is correct, the fact that the reason assigned therefor by the court, when making it, is not sufficient to sustain the order, the fact of such deficient reason being given will not vitiate the ruling or order. The question now before us is, did the court err in its refusal to make the order requested? We think not. It is not the province of courts to make useless and unnecessary orders, simply because they are so requested. There was no showing made to the court that permission to make the examination had been refused by defendant in error, nor that any such permission had been requested. There is no showing of any kind that such examination was necessary in order to aid plaintiff in error in making its defense, indeed there was no intimation made that any good could possibly result or benefit be derived from such an examination. The request was made in the midst of the trial. The court was asked to stop the trial and send out the plaintiff in the suit for examination. Again, this request hardly possessed all the elements of fairness. The court was asked to virtually place the defendant in error in the hands of the defense. It was not sought to have the examination made by disinterested and unbiased surgeons whom the parties might select or the court appoint, but by the "physicians called upon the part of the defense." Again, the record shows that when the witnesses on the part of the defense were placed upon the stand to testify upon the question of the alleged injury, the defendant in error was asked to "step forward and allow the witness to examine him," which he did. The record further shows that the defendant in error was "asked to remove his coat and vest, which he does, and the witness examines the back, sides, and other portions of the body of the plaintiff; also as to his breathing; also the condition of the eyes, the muscles of the leg, the condition of the tongue and of the pulse." From this it must seem that even if the court had erred by its refusal to make the order, that error was cured by the examination made by consent of defendant in error. The only case cited by plaintiff in error in support of its position is Schroeder v. C., R. I. and P. R. Co., 47 Iowa, 375. But there is a wide distinc Sioux City and Pacific Railroad Company v. Finlayson. tion between that case and this. In that case the request was made after the jury was impanelled, but before any of the testimony was heard. The application was in writing, and requested the examination to be made by a "proper number of physicians, to be selected, in equal numbers, by plaintiff and defendant, and it was proposed by defendant that its own medical officer should not be one of the number, * and in support of this application the affidavit of a surgeon and physician in the employment of defendant was filed, stating that he had professionally attended plaintiff immediately after he was injured, and had made personal observation of plaintiff's condition, and had heard his testimony at the former trial, and it was his belief, based upon these means of knowledge, that his injuries were not of the character claimed by him and that the truth of the matter could be ascertained by a proper personal examination of the plaintiff." It also appears in that case that an effort was made to procure an examination of plaintiff in the presence of the jury, as was done in this case, but the plaintiff refused to submit to it, and the court would not order it, and that, too, after the plaintiff had testified that his back and internal organs were affected by the injury, and that "one of his legs was disabled to an extent that deprived him of its full use, and that he thought it appeared to be smaller and somewhat shrunken.' Our attention has been called to no other case upon this subject, and we know of no other holding as the Iowa case. As to the soundness of the position taken by that court we have nothing to say. The question is not before us. It is enough to say that under the authority of that case it cannot be made to appear that the ruling of the court in this case was erroneous, or that it abused its discretion in refusing to make the order sought. Believing that the verdict is excessive, the judgment and decision of this court is, that the judgment of the District Court be set aside and a new trial granted, unless the defendant in error enter a remittitur of the sum of $3,000 within thirty days from this date. If such remittitur is filed, the judgment to the extent of $6,250 will be affirmed. The other judges concur. NOTE BY THE REPORTER. Judgment accordingly. -See Atchison, etc., R. Co. v. Thul, 29 Kans. 466; 44 Am. Rep. 659; also, note, ante, 191. In Schroeder v. C., R. I. and P. R. Co., 47 Iowa, 375, the court said: To our minds the proposition is plain that & C., Sioux City and Pacific Railroad Company v. Finlayson. a proper examination by learned and skillful physicians and surgeons would have opened a road by which the cause could have been conducted nearer to exact justice than in any other way. The plaintiff, as it were, had under his own control testimony which would have revealed the truth more clearly than any other that could have been introduced. The cause of truth, the right administration of the law, demand that he should have produced it. It is said that the examination would have subjected him to danger of his life, pain of body and indignity to his person. The reply to this is that it should not, and the court should have been careful to so order and direct. Under the explicit directions of the court, the physicians should have been restrained from imperiling, in any degree, the life or health of the plaintiff. The use of anæsthetics, opiates or drugs of any kind should have been forbidden, if, indeed, it had been proposed, and it should have prescribed that he should be subjected to no tests painful in their character. As to indignity to which an examination would have subjected him, as urged by counsel, it is probably more imaginary than real. An examination of the person is not so regarded when made for the purpose of administering remedies. Those who effect insurance upon their lives, pensioners for disability incurred in the military service of the country, soldiers and sailors enlisting in the army and navy, all are subjected to rigid examinations of their bodies, and it is never esteemed a dishonor or indignity. The standing and character of the physicians who should have been appointed to make the examination would not only have secured plaintiff from insult and indignity, but would have been a guaranty that nothing would have been attempted which would have endangered his life or health. "We have been able to find no case in which the question before us has been considered, and we have been referred to no authority by counsel that seems to have much application thereto. The courts have held in divorce cases, when the impotency of a party is in question, an examination may be ordered of the person alleged to be impotent. See 2 Bish. Mar. and Div., § 590 et seq., and notes. The foundation of this rule is the difficulty of reaching the truth in any other way than by an examination of the person. The authorities referred to may be regarded as giving some support to our conclusion. "It is the practice of the courts of this State, sanctioned by more than one decision of this court, to permit plaintiffs who sue for personal injuries to exhibit to the jury their wounds or injured limbs, in order to show the extent of their disability or suffering. If, for this purpose, the plaintiff may exhibit his injuries, we see no reason why he may not, in a proper case and under proper circumstances, be required to do the same thing for a like purpose upon the request of the other party. If he may be required to exhibit his body to the jury, he ought to be required to submit it to examination of competent professional men." In Hatfield v. St. Paul and D. R. Co., Supreme Court of Minnesota, Janu ary, 1885, the plaintiff having testified that the injury in question had rendered her lame, and caused her to limp in walking, the counsel for defendant re quested the court to direct her to walk across the court-room in presence of the jury, which the court declined to do. The court said: "As the object of Sioux City and Pacific Railroad Company v. Finlayson. all judicial investigations is, if possible, to do exact justice and obtain the truth in its entire fullness, we have no doubt of the power of the court in a proper case to require the party to perform a physical act before the jury that will illustrate or demonstrate the extent and character of his injuries. This is in accordance with analogous cases in other branches of the law. When a view of real estate will aid the jury in reaching a conclusion, it is within the discretion of the court to permit it. When an inspection of an article of personal property will aid them, it is not infrequent to cause the article to be brought into court for the same purpose. Line v. Taylor, 3 Fost. & F. 731; Lewis v. Hartley, 7 Carr. & P. 405. The practice in patent and in certain equity cases, of allowing tests to be applied before the court, is somewhat analogous in principle. So is the practice of divorce courts, of ordering an examination of the person of the party in certain cases. "It is a common practice to allow plaintiffs, in actions for personal injuries, to exhibit to the jury their wounds in order to show their extent, or to enable a surgeon to demonstrate their nature and character. This has been held proper. Mulhado v. R. Co., 30 N. Y. 370. If for these purposes a plaintiff may exhibit his injuries, there would seem to be no reason why under proper circumstances he may not be required to do the same thing, for a like purpose, upon request of the defendant. In some cases it has been held that a party may be required to submit to an examination by competent professional men for the purpose of ascertaining the nature and extent of his injuries. Schroeder v. R. Co., 47 Iowa, 375; R. Co. v. Thul, 29 Kans. 466; s. c., 44 Am. Rep. 659. From analogy to such cases we conclude that a court has the power, in a proper case and under proper circumstances, to direct the plaintiff to do & physical act in presence of the jury that will illustrate or show the character of his injuries. And we are by no means prepared to say that there may not be circumstances where the defendant would have a right to such an order. but it is evident, from the very nature of things, that the propriety of such an order must usually rest largely in the discretion of the trial court, and it would only be in case of a plain abuse of such discretion that we would interfere. In the present case we think the court very properly refused to direct the plaintiff to exhibit herself to the jury and by-standers by walking across the room. Such an act would have furnished the jury little or no aid in determining the extent or character of her injuries. The only fact it could by any possibility have determined was whether or not she was lame or "limped," as she testified, in walking. But there was already ample and uncontradicted evidence of this fact. Her own evidence on the point was fully corroborated by that of three or four other witnesses, her neighbors or members of her family, who had seen her almost daily since the accident." In White v. Milwaukee City Ry. Co., Wisconsin Supreme Court, November, 1884, during the trial, counsel for the defendant made the following request, and the following proceedings were thereupon had: “ Defendant's Counsel We ask of the court to direct the plaintiff, who is now present, to submit her limb for examination in a private room attached to the court-room, privately, to Drs. Denn and Hare, who are now present, and that if she wish she can be accompanied by any of her own female friends who are present, or any other |