Opinion
No. 22460
Decided February 25, 1931.
Negligence — Plaintiff must submit to physical examination, when — Selection of examining physician within discretion of trial court — Ruling thereon not disturbed unless abuse of discretion affirmatively appears.
1. In an action for damages for personal injuries, the trial court has the power to require the plaintiff to submit to a reasonable physical examination, at a proper time and place, by competent physicians or surgeons, in order that the extent and nature of the injuries may be ascertained. ( Miami Montgomery Turnpike Co. v. Baily, 37 Ohio St. 104, approved and followed.)
2. The defendant does not have an absolute right to name the physicians or surgeons to make such examination, although the physicians or surgeons suggested by the party applying for such examination are not rendered ineligible thereby, the matter of selection being within the discretion of the trial court.
3. While the trial court's ruling is subject to review on error, the same will not be disturbed unless an abuse of discretion affirmatively appears.
ERROR to the Court of Appeals of Hamilton county.
This is a proceeding in error seeking to reverse the Court of Appeals of Hamilton county. The facts incident to the controversy are as follows:
Evelyn Trester brought suit for $10,000 damages against the S. S. Kresge Company, growing out of injuries claimed to have been sustained by striking her foot on a metal door stop at the side of the vestibule leading into one of the Kresge stores in Cincinnati. She alleged, among other things, as to her injuries, that she "has suffered continual pain in her foot and ankle ever since said injury and will continue to suffer great pain with said foot and that said foot is in a painful, weakened and stiff condition and by reason of said injury has become an inch shorter than the other, all of which condition is in its nature permanent."
The petition was filed, it is claimed, eleven months and twenty-one days after the date of the alleged injury. The defendant filed a general denial, thus putting in issue, among other things, the allegations of injury and damage, including the condition of the foot and ankle, the continuousness and permanency of that condition, and, if any such condition existed, the proximate causation between the accident and the condition.
In order to prepare a defense along these lines, the defendant, three weeks after the filing of the petition, made an application in writing for a physical examination, alleging that by reason of the allegations of the petition as to the continuing feature and permanent character of the injuries complained of it was entitled to a physical examination, and prayed for an order requiring plaintiff to submit to such examination by one Dr. Guy Brown, within reasonable hours to be fixed by the court, on a date to be fixed by the court, and at a reasonable time to be fixed by the court. The application represented that said Dr. Brown was a reputable physician of Cincinnati, experienced and qualified to make the physical examination concerning the injuries alleged in the petition.
Those allegations of fact were sworn to in the application, so that the application is in reality also in part an affidavit concerning the matter.
In opposition to this application the plaintiff filed a document called "Reply to Application of Defendant for Physical Examination of Plaintiff," which reads as follows:
"Now comes the Plaintiff and states that she objects to submitting her body to a physical examination by the doctor selected and chosen by the defendant, who is Dr. Guy Brown, for the following reasons, to wit:
"First: Because Dr. Guy Brown is a professional insurance company doctor and is selected by the insurance companies because he makes a good witness for the defense.
"Second: Because of private reasons of her own, she does not care to submit herself to the examination of Dr. Guy Brown.
"Third: Because she was treated for her injuries at the City Hospital and by the doctors at said hospital and that the defendant has been furnished a complete report of her physical condition and have access, by the taking of depositions, to the City Hospital records.
"Fourth: Because she is willing to submit herself to an examination to any reputable physician selected by the court, said physician to be selected without any suggestion from the defendant.
"Fifth: Because she is willing to submit herself to any competent physician that may be agreed upon between herself and the defendant.
"Sixth: Because the defendant refuses to have any other physician but the said Dr. Guy Brown.
"John W. Cowell,
"Attorney for Plaintiff.
"State of Ohio,
"Hamilton County — ss:
"John W. Cowell being by me first duly sworn, says that he is attorney for the plaintiff; that the facts stated in the reply of the plaintiff heretofore filed by the application of the defendant for a physical examination of the plaintiff by Dr. Guy Brown are within his personal knowledge and are true.
"John W. Cowell.
"Sworn to before me and subscribed in my presence, this sixteenth day of December, 1929.
"Philomena Feldman."
Upon this species of record the application for physical examination was submitted to the court of common pleas. Upon consideration, the court of common pleas found that the defendant was entitled to have the plaintiff examined by a physician and the journal entry further recited:
"It further appears from said application that the defendant recommends and requests that the court require plaintiff to submit to such physical examination before Dr. Guy Brown, whose office is at 4140 Hamilton Avenue, Cincinnati, Ohio. It further appears from the sworn statements of said application that Dr. Guy Brown is a reputable physician and that he is experienced and qualified to make the physical examination concerning the injuries of plaintiff alleged in the petition. There being no evidence to the contrary the court finds that Dr. Guy Brown is a reputable physician and that he is experienced and qualified to make such physical examination.
"The court finds that such physical examination should be made at a reasonable time and place, taking into consideration the interests and convenience of the plaintiff and of Dr. Guy Brown and having received no suggestion or recommendation from plaintiff as to a reasonable time and place, the court finds that a reasonable time and place for such physical examination is at the office of Dr. Guy Brown, 4140 Hamilton Avenue, Cincinnati, Ohio, on Tuesday, December 24, at 2:00 o'clock p. m.
"It is, therefore, ordered that the plaintiff submit herself to a physical examination concerning the injuries complained of in her petition to Dr. Guy Brown at his office at 4140 Hamilton Avenue, Cincinnati, Ohio, on Tuesday, December 24, 1929, at 2:00 o'clock p. m. and that plaintiff be permitted to have present at such physical examination if she so desires her counsel and her own physician."
Subsequently, the plaintiff not complying with such order, a motion to dismiss was filed, upon consideration whereof the common pleas court made the following entry:
"This cause came on to be heard upon defendant's motion to dismiss. On consideration thereof and on consideration of the sworn statements in support thereof, the court finds that said motion is well taken and finds that plaintiff has disobeyed the order of the court heretofore made in this case on December 17, 1929, in that she has refused to submit herself to a physical examination as ordered in said order.
"It is, therefore, ordered that this case be hereby dismissed without prejudice at plaintiff's costs. To all of which plaintiff excepts."
Plaintiff thereupon prosecuted error to the Court of Appeals of Hamilton county, and the cause was heard upon the petition in error, the transcript of docket and journal entries, and the original papers. No bill of exceptions was filed in the Court of Appeals. Upon consideration in the Court of Appeals, the following appears upon the journal of that court:
"This cause came on to be heard upon the petition in error and original papers and the court being fully advised in the premises finds there is error in the record and proceedings of said case in this, to wit:
"First: The court erred in ordering the plaintiff to submit herself to a physical examination concerning her injuries to Dr. Guy Brown, a physician who was selected and whose name was suggested to the court by the defendant.
"Second: The court erred in dismissing plaintiff's action because of her refusal to comply with said order.
"Third: It is therefore ordered, adjudged and decreed that the judgment of the Court of Common Pleas dismissing this case be and the same is hereby reversed, set aside and held for naught and that a special mandate be sent to the Court of Common Pleas to carry this judgment into effect and that the defendant pay the costs of this proceeding, to all of which the defendant excepts."
It is to reverse this judgment of the Court of Appeals that error is now prosecuted to this court.
Messrs. Dinsmore, Shohl Sawyer, for plaintiff in error.
Mr. John W. Cowell, for defendant in error.
The solution of the question presented in this case goes to the issue as to whether or not the trial court abused its discretion in making the order requiring the plaintiff to submit to an examination by Dr. Guy Brown, even though he was a physician suggested by plaintiff in error, defendant below, and, upon her refusal to comply with such order, whether the trial court erred in dismissing her petition without prejudice.
As to the power to require the plaintiff to submit to a physical examination, we think the weight of authority is to the effect that "trial courts have inherent power to require the plaintiff in actions to recover damages for personal injuries to submit his or her person to a reasonable private physical examination by competent physicians and surgeons when necessary to ascertain the nature, extent and permanency of the alleged injury." 14 Ruling Case Law, 696, Section 14. See also notes in 1 Ann. Cas., 266; Ann. Cas., 1917D, 351; 23 L.R.A. (N.S.), 463; 11 Ann. Cas., 844; 14 L.R.A., 466; 41 L.R.A. (N.S.), 1071; L.R.A., 1915E, 936.
As to the rule in Ohio, this court, in Miami Montgomery, Turnpike Co. v. Baily, 37 Ohio St. 104, held:
"1. In an action to recover for personal injuries, caused by the negligence of the defendant, the court has power to require the plaintiff to submit his person to an examination by physicians or surgeons, when necessary to ascertain the nature and extent of the injury.
"2. On the refusal of the plaintiff to comply with such order, when properly made, the court may dismiss the action, or refuse to allow the plaintiff to give evidence to establish the injury."
While it is true that some jurisdictions do not adhere to this rule, yet, as above indicated, we feel that it is the law of this state and is supported by the weight of authority.
Defendant in error does not question the soundness of the rule, but maintains there is sufficient to show that the court abused its discretion in the premises because the defendant below in its application named the physician it wanted to make the examination. Undoubtedly the court was not bound to name the physician suggested by the party making the application. On the other hand, there is no reason preventing the court making that selection if in its sound discretion such physician was in its opinion a proper person to make such examination.
There is no bill of exceptions in the case, and we are compelled to decide whether there was an abuse of discretion, based on the so-called affidavits appearing in the record.
The journal entry of the court of common pleas reads:
"It further appears from the sworn statements of said application that Dr. Guy Brown is a reputable physician and that he is experienced and qualified to make the physical examination concerning the injuries of plaintiff alleged in the petition. There being no evidence to the contrary the court finds that Dr. Guy Brown is a reputable physician and that he is experienced and qualified to make such physical examination.
"The court finds that such physical examination should be made at a reasonable time and place, taking into consideration the interests and convenience of the plaintiff and of Dr. Guy Brown and having received no suggestion or recommendation from plaintiff as to a reasonable time and place, the court finds that a reasonable time and place for such physical examination is at the office of Dr. Guy Brown, 4140 Hamilton Avenue, Cincinnati, Ohio, on Tuesday, December 24, at 2:00 o'clock p. m."
Under the rule that the court speaks by its journal and in the absence of a bill of exceptions, a reviewing court will assume the trial court had before it sufficient evidence to support its judgment, and there being nothing before us to show that the conclusions reached therein were not justified, we can reach no other conclusion than that the record fails to show such an abuse of discretion, or other error by the trial court, as justifies a reversal of its judgment.
Judgment of Court of Appeals reversed and judgment of court of common pleas affirmed.
MARSHALL, C.J., JONES, MATTHIAS, ALLEN, KINKADE and ROBINSON, JJ., concur.