Feldcamp v. Cincinnati Trac. Co.

1 Ohio Law. Abs. 52

• Court: Ohio Superior Court, Cincinnati
• Decided: July 1, 1922
• Status: Published

Opinion

MARX, J.

Epitomized Opinion

The plaintiff was injured in a street car collision. The defendant admitted liability, and the jury awarded $2,000 damages. The defendant claimed that the amount was so excessive as to require a new trial. The plaintiff asked the judge to determine what amount would be a reasonable and just compensation. Neither side alleged any error of law and the principal question at issue is the amount that should be paid to the plaintiff.

The principal questions of fact were whether a bruise received by plaintiff in the car accident was the proximate cause of an abscess discovered after sickness plaintiff, which followed the accident, which abscess had to be operated upon and had left a deep scar, which would cause her to limp slightly through the rest of her life and would also cause her pain.

Neither side chose to call Dr. O., the surgeon who performed the operation. The court stated, upon the motion for a new trial, that the omission of this evidence was an important fact, and unless both sides consented to have this doctor testify on the motion, he would be compelled to draw an inference from the omission, unfavorable to the party who would not consent to placing before the court the evidence of the operating surgeon. Both sides consented and the doctor was called as a witness, and his testimony was considered by the court, with the other evidence.

The court explained that it was fully aware that there was no provision of statute, empowering it to appoint a disinterested physician and surgeon to make an impartial examination of litigants, for the purpose of advising the court concerning the respective claims, but believed there should be such legislative enactment. But in the absence of such a law, the court has inherent power to cause such an examination to be made in furtherance of substantial justice. When hired experts testify upon opposite sides to opposite conclusions, every expert testifying in favor of the side which hires him, it is imperative that the court possess the right, upon its own motion, to appoint an impartial, disinterested expert to discover the truth, and to order the fee to be taxed as part of the costs in the case. But there is no'doubt that where both parties consent, as in this case, there can be no objection to the procedure, citing as authority a case to which this is analogous, Railway v. Burianek, 30, OCA, 592.

The evidence of the surgeon was heard, and the court found that $1,200 would fully and fairly compensate the plaintiff.