Best v. Street Railway Co. , 85 S.C. 422 ( 1910 )

I dissent. In suits arising out of personal injuries it is manifest that nothing can be more helpful to the jury in reaching a just estimate of the damages than knowledge of the true nature of the injury.

To deny to either party any reasonable means of making the extent of the injury evident is unfair, for often its nature is such that the defendant has no means whatever of protecting himself from pretensive or exaggerated claims, except on examination by impartial experts under the order of the Court. For these reasons, whenever it appears to the Circuit Judge that a physical examination by disinterested experts would materially aid the jury in arriving at a just verdict, such examination should be ordered.

There are some authorities holding that such examinations should not be allowed in the absence of statutory authority. Union Pac. Ry. Co. v. Botsford, 141 U.S. 250,35 L.Ed., 734; Parker v. Enslow, 102 Ill., 272, 40 American Reports, 588; Stack v. N.Y.N.H. H. Ry. Co.,177 Mass. 155, 83 Am. St. Rep., 269; Mills v. Wilmington CityRy. Co. (Del.), 40 Atlantic, 1114; Galveston H. S.A.Ry. Co. v. Sherwood (Texas), 67 S.W. 776. The authority of the decision of the Supreme Court of the United States, however, is weakened by the fact that the Federal Courts in which suits for personal injuries are tried have no jurisdiction except that conferred by statute. Therefore, the power of the Federal trial Courts to order such examinations might well be denied, while admitting the power to exist in State Courts having general jurisdiction.

The power of State Courts to order such examinations is supported by the great weight of authority. Greenleaf on Evidence (16 Ed.), 469; Ala. G.S. Ry. Co. v. Hill,90 Ala., 71, 24 Am. St. Rep., 764; St. L. etc. Ry. Co. v. Dobbins,60 Ark. 481, 30 S.W. 887; Richmond D. Ry. Co. v. Childress, 82 Ga. 719, 14 Am. St. Rep., 189, 9 S.E., 602;Western Glass Mfg. Co. v. Schoeninger (Col.),94 Pac., 342, 15 L.R.A. (N.S.), 663; South Bend v. Turner,156 Ind., 418, 60 N.E., 271; Hall v. Manson, 99 Iowa, 698,68 N.W., 922; Atchinson etc. Ry. Co. v. Palmore, 68 Kansas, 545, 75 Pac., 509; Graves v. Battle Creek,95 Mich., 266, 35 Am. St. Rep., 561; Louisville etc. Ry. Co. v. Simpson,111 Ky., 754, 64 S.W. 733; Wanek v. Winona,78 Minn., 98, 80 N.W., 851, 79 Am. St. Rep., 354; Shepard v.Mo. Pac. Ry. Co., 85 Mo., 629, 55 Am. Rep., 390; Stuart v.Havens, 17 Neb. 211, 22 N.W., 419; United Rys. etc. Co. v. Cloman (Md.), 69 Atl., 379; Brown v. Chic. Ry. Co.,12 N.D., 61, 95 N.W., 153; Miami etc. Co. v. Bailey,37 Ohio St., 104; Lane v. Spokane Falls Ry. Co.,21 Wn., 119, 75 Am. St. Rep., 821; O'Brien v. La Crosse,99 Wis. 421, 75 N.W., 81.

The case of Easler v. Southern Railway Company, 60 S.C. 117,45 S.E., 119, as it seems to me, is opposed to both reason and authority, and should be overruled.

April 1, 1910.