Austin & Northwestern Railroad v. Cluck (97 Tex. 172, 1903)

BBOWN, Associate Justice.

From the opinion of the honorable Court of Civil Appeals we copy the following statement of the facts as found by that court:

“This is a suit for damages caused by the plaintiff’s falling into a well dug, operated and controlled by the Austin & Northwestern Bail-road Company. There was a jury trial, resulting in a verdict and judgment for the plaintiff for $2000, and the defendants have appealed..

“The testimony shows that the Houston & Texas Central Eailroad Company since the accident occurred has succeeded to all the rights and liabilities of the Austin & Northwestern Eailroad Company, and if one company is liable, both are.

“The accident occurred at night, and the verdict of the jury involves a finding that the Austin & Northwestern Eailroad Company was guilty of negligence in failing to keep the well properly covered, and that the plaintiff was not guilty of contributory negligence, as charged in the answer of the defendants, and that, as a direct result of the defendants’ negligence, the plaintiff was injured to the extent of $2000. The record contains evidence sufficient to support all of these findings; and therefore, the objections to the verdict are overruled.

“The plaintiff charged in his petition that as a result of his falling in the well, he was permanently injured in his back, sides, kidneys, hips, hip joints, spine, bladder, stomach and bowels.

“Within proper time the defendants made a motion, stating that the plaintiff had been examined by two physicians of his own selection, who would testify in his behalf; that he had not been examined by physicians selected by the defendants, or by any other physicians, and requested the trial court to appoint a committee of two or more eompétent physicians, and compel the plaintiff to submit to an examination by the physicians so appointed, in order that the defendants might have the-benefit of the testimony of such physicians.

“In support of the motion it was shown that the plaintiff had refused to consent to the appointment of such committee, and to the examination requested. The court overruled the motion, and that ruling is assigned as error.”

The plaintiff in error asserts that it had the right at the trial to have the court appoint a committee of physicians to make a physical examination of the defendant in error to qualify them to testify before the jury as to the injuries received by Cluck, and their effect. The right to have such examination is supported by the greater number of decisions of the courts of the States of this Union and by the text writers. The following cases support the right asserted: Richmond & D. Ry. Co. v. Childress, 82 Ga., 719; Shepard v. Missouri P. Ry. Co., 85 Mo., 629; Alabama G. S. Ry. Co. v. Hill, 90 Ala., 71; White v. Milwaukee City Ry. Co., 61 Wis., 536; Atchison T. & S. F. Ry. Co. v. Thul, 29 Kan., 466; Schroeder v. Chicago R. I. & P. Ry. Co., 47 Iowa, 375; Sibley v. Smith, 46 Ark., 275; Missouri & M. T. Ry. Co. v. Baily, 37 Ohio St., 104; Lane v. Spokane, F. & N. Ry. Co., 21 Wash., 119; Wanek v. City of Winona, 46 Law. Rep. Ann., 448; Graves v. City of Battle Creek, 95 Mich., 266; City of South Bend v. Turner, 156 Ind., 418; Brown v. Chicago M. & St. P. Ry. Co., 95 N. W., 153. The Supreme Court of Missouri first held that the courts had no power to compel a party to a civil case to submit to a physical examination. Loyd v. Hannibal & St. Joe Ry. Co., 53 Mo., 515. After vacillating, and qualifying their decisions in various particulars, that court, in Shepard v. Missouri P. Ry. Co., before cited, announced the doctrine contended for by the railroad company in this case. The decisions of the Supreme Court of the State of Indiana cover all phases of this question from an absolute denial to the assertion of the right in a qualified sense, as announced in the case of City of South Bend v. Turner, above cited. That case has been since greatly qualified, and their decisions are in such conflict on the question that they are of little value as authority. The case of Richmond & D. Ry. Co. v. Childress, 82 Ga., 719, rests upon the following statutory provision: “Every court has power to control, in furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto.” This statute authorized the examination in the State of Georgia, hence that case is not authority upon the question of power under the common law. The authorities above stated, as well as many cases which we have not cited, fully sustain the conclusion of the Supreme Court of Indiana in the case of City of South Bend v. Turner, which is embodied in the following propositions: “(1) That trial courts have the power to order the medical examination by experts of the injured parts of a plaintiff who is seeking to recover damages therefor; (2) that a defendant has no absolute right to demand the enforcement of such an order, but the motion therefor is addressed to the sound discretion of the trial court; (3) that the exercise of such discretion is reviewable on appeal, and correctible in cases of abuse; (4) that the examination should be applied for and made before entering upon the trial, and should be ordered and conducted under the direction of the court, whenever it fairly appears that the ends of justice require a more certain ascertainment of important facts which can only be disclosed or fully elucidated by such an examination, and such an examination may be made without danger to the plaintiff’s life or health, or the infliction of serious pain; (5) that the refusal of'the motion, when the circumstances appearing in the record present a reasonably clear case for the examination under the rules stated, is such an abuse of discretion in the trial court as will operate to reverse a judgment for the plaintiff; (6) that such an order may be enforced, not by punishment as for a contempt, but by delaying or dismissing the proceeding.”

Counsel for the defendant in error deny the authority of the court to require the plaintiff in this case to submit to a physical examination by a committee to be appointed by the court, in which they are supported by these authorities: Parker v. Enslow, 102 Ill, 279; McQuigan v. Delaware L. & W. Ry. Co., 129 N. Y., 50; Stack v. New York, etc., Ry. Co., 177 Mass., 155; Peoria D. & E. Ry. Co. v. Rice, 144 Ill., 232; Roberts v. Ogdensburgh & L. C. Ry. Co., 29 Hun, 154; Union P. Ry. Co. v. Botsford, 141 U. S., 250. The question has been before this court in these cases: International & G. N. Ry. Co. v. Underwood, 64 Texas, 463; Missouri P. Ry. Co. v. Johnson, 72 Texas, 95; Gulf C. & S. F. Ry. Co. v. Norfleet, 78 Texas, 321; Gulf C. & S. F. Ry. Co. v. Butcher, 83 Texas, 309. In each case this court declined to decide the question now before us; therefore, it is practically a new one, which we must determine by the weight of authority, or upon the sounder reasoning, as derived from the provisions of our Constitution, the statutes and the common law.

After citing a number of cases to support their decision in the case of City of South Bend v. Turner, the Supreme Court of Indiana said: “These cases assert the doctrine that courts are instituted by the State to administer impartial justice to contending parties. In such contests it is the duty of the court to bestow upon the litigants equal and exact justice. .This can not be done without the court first obtaining the exact and full truth concerning the matters in controversy. Hence from this duty of the court to dispense exact justice is essentially implied all power necessary to its performance, which includes the power to make subservient to its order all persons and things that will afford the most reliable evidence.” That honorable court gives no source from which it is claimed the courts derive the power to compel a party to submit to examination, but asserts that the duty to administer justice implies “all power necessary to its performance, which includes the power to make subservient to its order all persons and things that will afford the most reliable evidence.” If this proposition be well founded, then, indeed, the power of a court over the persons of parties who apply to it for adjustment of their rights is unlimited. This statement of judicial power is too broad to be accepted as correct; but that line of decisions can not be sustained by less comprehensive authority. The point we wish to call attention to is, that the court does not claim to derive its authority from either the common law, the Constitution of that State, or from the statutes of Indiana. Comment upon City of South Bend v. Turner is equivalent to a comment upon the other cases, because it is perhaps the best reasoned of all, and fairly represents them.

Article 5, section 8, of the Constitution of this State defines the jurisdiction and powers of the district courts in the following language: “The district court shall have original jurisdiction of all suits, complaints, or pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at or amount to five hundred dollars exclusive of interest;” and- the Legislature has defined the jurisdiction of the district courts in the same language. The common law was adopted by the Congress of the Republic by enactment embraced in the following article, 3258, of the Revised Statutes : “The common law of England (so far as it is not inconsistent with the Constitution and laws of this State) shall, together with such Constitution and laws, be the rules of decision, and -shall continue in force until altered or repealed by the Legislature.” Whatever may be the powers of courts of other States, there can be no doubt that the courts of Texas must look to the Constitution of this State, the enactments of the Legislature, and the common law, for their authority to proceed as requested in this case) and, if the authority did not exist at common law, and has not been conferred by the Constitution, nor by the- statutes of this State, then no court in Texas has the power to force any citizen to submit to a physical examination under such circumstances.

In the ease of Messner v. Giddings, 65 Texas, 309, a judgment of the district court which had assumed to exercise authority over the estate of minors was under review; it was claimed that the authority was given by the Constitution, wherein it conferred on the district court all the powers of courts of equity. Speaking by Judge Stayton, the Supreme Court said: “If it is claimed that in the court, as a court of equity, under that clause (of the Constitution), the power existed, it must be replied, that the district court, whether as a court of law or a court of equity, had only such power as the Constitution gave it. There is no such thing as the inherent power of a court, if, by that, be meant a power which a court may exercise without a law authorizing it. That clause of the Constitution empowered district courts to exercise all the power given, whether the procedure necessary to accomplish that purpose be such as pertains to a court of law or a court of equity; but it in no manner conferred upon such courts the power to exercise any and every power, which, at any time, may have been exercised by courts of chancery in England or elsewhere.”

In Railroad v. Botsford, before cited, Judge Gray said: “Bo right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. So far as the books within our reach show, no order to inspect the body of a party in a personal action appears to have been made, or even moved for, in any of the English courts of common law, at any period of their history.” Hot one of the cases which declare the existence of the right cites a case from the English courts. To this, Justice Brewer, in the dissenting opinion filed on behalf of himself and Justice Brown of that court, replied: “The silence of common law authorities upon the question in cases of this kind proves little or nothing. The number of actions to recover damages, in early days, was, compared with later times, limited; and very few of those difficult questions as to the nature and extent of the injuries, which now form an important part of such litigations, were then presented to the courts. If an examination was asked, doubtless it wa§( conceded without objection, as one of those matters the right to which was beyond dispute.” The reply of Justice Brewer does not answer the argument of Justice Gray. The better rule was laid down in Russell v. Men of Devon, 2 D. & E. Rep., 667, where it was sought to maintain the action by argument from necessity and by reason of the analogy to óther actions which were authorized by statute, but Justice Ashhurst said in that case: “It is a strong presumption that that which never has been done can not by law be done at all. And it is admitted that no such action as the present has ever been, brought, though the occasion must have frequently happened. But it has been said that there is a principle of law on which this action may be maintained, namely, that where an individual sustains an injury by the neglect or default of another the law gives him a remedy. But there is another general principle of law which is more applicable to this case—that it is better that an individual should sustain an injury than that the public should suffer an inconvenience.” We are of the opinion that the fact that no such examination was ever' authorized by a court at common law in England, is conclusive that those courts had no authority under the common law to make such order. Judge Brewer’s suggestion that all persons, who were ordered by the common law courts to be examined, must have submitted without contention, is contrary to the record of those courts, which show a stubborn resistance by the English people to every encroachment upon their personal liberty. It is more consistent with the facts to presume that lawyers and courts recognize that no such power existed, therefore there was no attempt to secure the examination.

In his dissenting opinion Judge Brewer said: “Certainly the power of the courts and of the common law courts to compel a personal examination was in many cases often exercised and unchallenged. Indeed whenever the interest of justice seem to require such examination it was ordered. Instances of this are familiar; and in those instances the proceedings were, as a rule, adverse to the party whose examination was ordered.” The learned judge does not cite a case to support his statement of the frequency of similar proceedings in the common law courts of England, but we presume he refers to three exceptional cases mentioned by Judge Gray: First, in divorce proceedings upon the ground of impotency, the court might order the examination of either party, but the exercise of this power “rests upon the interest which the public, as well as the parties, have in the question of upholding or dissolving the marriage state, and upon the necessity of such evidence to enable the court to exercise its jurisdiction; and is derived from the civil and canon law as administered in spiritual and ecclesiastical courts not proceeding in any respect according to the course of the common law.” Second, in case a woman was convicted of a capital crime; the court might order an examination of her to determine whether she was quick with child, to prevent taking the life of the unborn infant. Third, if a widow claimed to be with child, the heir to the estate might cause her to be examined to ascertain whether she was or not with child, to protect the heirs against the fraud of having a false heir presented to inherit the estate. “But the learning and research of the counsel for the plaintiff in error have failed to produce an instance of its ever having been considered in any part of the United States, as suited to the habits and conditions of the people.” Comments in quotation marks are from the main-opinion in Railroad Company v. Botsford, and furnish complete answers to the arguments based upon the exceptional cases. The exceptions are the sole reliance of all cases which uphold the authority of the court to order such an examination, for a precedent showing that the.right existed and was exercised by common law courts. They do not establish the fact, and the answers made by Judge Gray in the main opinion are so conclusive as to leave no doubt that, in truth and in fact, ho such practice ever prevailed in the common law courts of England.

Since the common law furnishes no precedent for such proceeding, we must look to our Constitution and statutes for authority in our courts to order the examination. The provisions of our Constitution and of -euiugtatutes with regard to the practice and jurisdiction of courts are antagonistic