Transport Insurance Company v. McAlister

1960 OK 132, 355 P.2d 576, 1960 Okla. LEXIS 531

• Court: Supreme Court of Oklahoma
• Decided: May 24, 1960
• Docket: 38419
• Status: Published

Opinions

BERRY, Justice.

The parties will either • be referred to herein as they appeared in the trial court which is in reverse order to their appearance here, or by name.

In his petition filed herein, plaintiff alleged in substance that he was 3 years old; that the action was brought in his behalf by his mother and next friend, Betty Jane McAlister; that defendant, Transport Insurance Company, issued to defendant, Oklahoma Transport Co., hereafter referred to as “Bus Co.,” a liability insurance contract under which it obligated itself to compensate persons injured through Bus Co.’s negligent operation of its busses; that Bus. Co. was a common carrier of passengers for hire; that defendant, Curtis Heirston, was operating the bus in which plaintiff and his mother were riding at the time he was injured; that on December 2, 1956, plaintiff was traveling as a fare-paying passenger on one of Bus Co.’s busses; that at a point near Hartshorne, Oklahoma, “The driver Heirston turned the vehicle sharply .and threw on the brakes causing an extraordinary, violent, unusual, sudden jerk of the seat which plaintiff occupied with such force that he was thrown across the aisle so that his head and face were struck against a part of the bus cutting his face and the blow upon his head resulted in a concussion and other injury to the Ocular nerve”; that the accident resulted from the bus being driven “at an improper speed in regard to the curvature and traffic of the highway at the time of accident” and in “not having 'the bus under reasonable control and in turning the vehicle abruptly and in such a manner as to throw the plaintiff’ from his seat”; that the bus was equipped with “irregular, defective and inadequate brakes”; that as a result of the accident, plaintiff sustained severe and permanent injuries to “his head, neck, spinal column, ocular nerve, muscles and tissues”; that “his eyes have not properly functioned but have been crossed due to injury of the nerves controlling the eyes”; that his “injuries have caused severe and painful muscular and neurological disturbances; his appearance has been changed and’ altered h'y the cuts on his face and ■ the crossing of his eyes all of which is and will be humiliating and embarrassing”; that because of the accident and resulting injuries, plaintiff was damaged in the amount of $100,000.

The defendants filed a joint answer in which they denied the allegations of plaintiff’s petition and specifically denied “knowledge of the occurrence of an accident as alleged in plaintiffs petition but state that if the accident did occur, it was an unavoidable casualty.”

The jury to which the case was tried returned a $25,000 verdict in favor of plaintiff as to each defendant. From order denying the motion of defendants for a new trial which was directed to the judgment on the verdict, defendants perfected this appeal.

The plaintiff’s mother testified that on the date of the accident she and plaintiff planned to visit her sister in Denison, Texas; that her husband drove them from their home in Van Burén, Arkansas to Ft. Smith, Arkansas, where a bus ticket was purchased; that she and plaintiff boarded one of Bus Co.’s busses at Ft. Smith; that upon boarding the bus she and plaintiff sat in the front portion of the bus; that at one time she noticed the speedometer and that it was registering 75 miles per hour; that before reaching McAlester, Oklahoma, she and plaintiff took the third right-hand seat from the rear of the bus; that she sat next to the bus window and plaintiff sat .next to the aisle of the bus; that “as we approached Hartshorne we came upon this curve and the bus driver applied his brakes and there was a sudden jerk, and I put my hand up to catch myself and I put my hand out to catch my son to keep him from falling”; that the bus didn’t stop but continued on; that the bus was traveling between 65 and 75 miles when the brakes were applied; that the sudden jerk threw plaintiff from his seat and into the aisle; that a passenger picked plaintiff up and placed him in his mother’s arms; that plaintiff screamed and whimpered for a short time but then became silent and limp; that as a result of the fall plaintiff’s head was cut and bruised; that she was unable to wash the blood from plaintiff’s face before reaching McAlester where she, with the ticket agent’s assistance, washed the blood from plaintiff’s face; that upon reaching Denison, Texas, plaintiff was immediately taken to a hospital where his head was treated and three stitches were taken in his lip; that prior to the accident plaintiff was normal in appearance and behavior; that the morning following the accident plaintiff’s “eye was black — black underneath his eye, and his eye was crossed and his jaw was all swollen and black”; that following the accident, plaintiff complained of headaches; that he dragged his right foot; that the right side of his face did not appear normal; ■ that he had an impediment in his speech. The sister (plaintiff’s aunt) testified. Her testimony corroborated that of plaintiff relative to the plaintiff being normal in appearance and behavior before the accident and that following the accident his condition was as described by plaintiff’s mother. This witness also testified relative to plaintiff’s appearance upon reaching Denison and the fact that he was treated at a hospital where stitches were taken in his lip. The nature and extent of plaintiff’s injuries were proved by medical testimony, which testimony also tended to establish that plaintiff’s present physical condition was attributable to the injuries that plaintiff is alleged to have sustained while a passenger on Bus Co.’s bus.

The defendants’ defense followed the al-’ legations of its answer. The bus driver (Heirston) testified that he did not recall ever having seen plaintiff or his mother; that he didn’t hear a child scream or cry on the trip from Ft. Smith to McAlester on 'date of accident; that his first knowledge of alleged accident was when Bus Co. made inquiry of him concerning same some 6 months following alleged accident; that nothing unusual occurred on the trip from Ft. Smith to McAlester; that he didn’t and had no occasion to suddenly apply the brakes to the bus or jerk same; that a bus should not be driven in excess of 30 miles an hour in negotiating the curve where the accident is alleged to have occurred. The bus agent at McAlester testified that he did not assist plaintiff’s mother in washing blood from plaintiff’s face. The bus driver identified a bus ticket stub, in the possession ' of plaintiff’s mother as part of a ticket that he collected on the bus on the date of the alleged accident.

The defendants base their contention of error on the trial court’s part on three propositions. First, in denying defendant’s application for orders directing plaintiff to submit to a medical examination. Second, in giving certain instructions to the jury. Third, in denying defendant’s motion for a new trial based upon newly-discovered evidence. We will discuss these propositions in the order mentioned.

Prior to trial, defendants filed an application seeking an order of the court directing plaintiff to submit to a physical examination by a physician selected by defendants or the court. This application was denied. At the trial the application was renewed and again denied.

The plaintiff did not take the witness stand but for a portion of the trial was present in the court room. The parties appear to agree that the jurors probably observed that plaintiff’s right eye did not focus properly; that he dragged his right foot, and possibly observed other physical disabilities or disfigurement that plaintiff attributes to the accident in controversy.

The defendants freely and frankly admit that it has long been settled law in this jurisdiction that where a plaintiff has not taken the witness stand and in effect placed his injuries in evidence, the court is powerless to compel him to submit to a medical examination. See City of Kingfisher v. Altizer, 13 Okl. 121, 74 P. 107; Atchison, T. & S. F. Ry. Co. v. Melson, 40 Okl. 1, 134 P. 388; Law v. Corsin et al., 206 Okl. 462, 244 P.2d 831; Oklahoma Transportation Co. et al. v. Stine, Okl., 280 P.2d 1020 and cited cases.

Defendants urge that the facts of this case clearly show the necessity of departing from the rule heretofore .followed and an adoption of the majority rule to the general effect that in proper cases a court has inherent power to order a plaintiff who has not taken the witness stand to submit to a physical examination. See 17 Am.Jur. “Discovery and Inspection” Secs. 47 and 48, pp. 52 et seq., where last above referred-to rule and rule followed by this Court are discussed.

In countering defendants’ argument, plaintiff points to the fact that (1) plaintiff had been examined by several different doctors prior to the trial and that the jury had the benefit of the testimony of six doctors; that (2) defendants’ principal defense was that an accident had not in fact occurred; that (3) the mother’s refusal to make plaintiff available for a physical examination was based on advice, of counsel, ■which advice was based on the facts and cases heretofore cited.

We are of the opinion that it is here unnecessary to decide whether .the facts of this case show or fail to show reason for departing from our decisions announcing a rule contrary to that contended for by plaintiff. In considering this issue, we are persuaded by the fact that this Court has, since 1903, consistently adhered to the rule that defendants attack; that the rule is based upon the common law and is therefore sustained by precedent; that the rule is subject to change by the Legislature; that the Legislature, by failing to change the rule, has in effect acquiesced in same. This is said in 17 Am.Jur., Sec. 48, p. 55:

“The courts adopting this view that the trial court has no inherent pow.er to order physical examination of the plaintiff in a personal injury action regard the matter as one more appropriate for consideration by legislatures than by courts. * * * ”

We are inclined to the opinion that the matter of whether the rule under consideration should be changed at this late date presents a legislative and not a judicial question.

We next consider defendants’ contentions which are based upon alleged error on the trial court’s part in giving erroneous instructions.

The first instruction constituted a restatement of the petition and answer. Defendants excepted to this instruction. Following the restatement, this appears: “These form the issues which this jury is now em-panelled and sworn to try.” There follows a paragraph advising the jury that plaintiff had introduced no evidence relative to the bus being operated with defective or inadequate brakes and for said reason the jury should give no consideration to the allegation of the petition relative to defective brakes.

Defendants contend that in using the last above quoted language the court suggested to the jury that all of the matter stated in the court’s Summary of the petition was in fact in evidence. We are unable to agree. In the instruction which immediately follows the complained-of instruction, the court states that “This statement of the pleadings simply defines the issues to be tried and the allegations therein made do not constitute any part of the proof of the facts alleged, except where a fact is specifically admitted by the other party.”

Defendants next complaint of Instruction No. 6 to the effect that if the jury found “and believes from a preponderance of the evidence that the defendant Heirston did apply the brakes suddenly without necessity therefor, and thereby causing the accident of which plaintiff complains, your verdict should be for the plaintiff.” Defendants contend that the phrase “without necessity” wasn’t defined and that this renders the instruction bad. In view of the fact that the members of the jury were no doubt familiar with motor vehicles and motor vehicular travel, we are confident that they understood the quoted phrase. Moreover, the bus driver testified that no occasion arose that required abrupt application of the brakes to the bus, but nevertheless, according to plaintiff’s mother, the brakes were abruptly applied. Defendants suggest that by said instruction the court advised the jury that the matter of suddenly braking the bus without necessity, irrespective of the speed thereof, warranted a verdict in plaintiff’s favor. The speed of the bus on the curve was placed at from approximately 30 miles per hour to in excess of 65 miles per hour. Assuming the bus was traveling at approximately 30 'miles per hour and that the brakes were suddenly applied without necessity and that this caused the bits to be jerked to the extent that plaintiff was thrown from his seat to the floor of the bus, under the facts of this case an instruction to the effect of No. 6 would be in order. We are, therefore, unable to see wherein the court erred in giving Instruction No. 6.

We are of the opinion that when the instructions are considered as a whole, same fairly and correctly present the law applicable to the issues raised by the pleadings and presented by the evidence.

We turn to defendants’ third and last contention. The defendants assert that subsequent to the trial they learned of a witness who would testify that she had observed that plaintiff’s eyes were crossed or converged prior to the accident; that this was material testimony that could affect the result of a trial of this case; that upon learning of said witness’ testimony they filed a supplemental and amended motion for new trial wherein the facts that witness would testify to were set forth, which motion was verified. This testimony would tend to impeach the testimony of Mrs. Mc-Alister and her sister. The defendants urge that in denying this motion the trial court erred.

The parties are in agreement on the proposition that the granting of a new trial on the grounds of newly-disfcovered evidence rests in the sound discretion of the court. The issue posed is therefore whether the trial court abused its discretion in denying the referred-to motion.

One seeking a new trial on the grounds of newly-discovered evidence, must show that failure to produce such evidence at the trial was not due to lack of due diligence on his part. In Parrish et al. v. Nichols, 175 Okl. 251, 52 P.2d 54, this was said in the syllabus:

“Before a new trial should be granted for newly discovered evidence, due diligence at the time of trial in respect to such evidence must be shown; the failure to make inquiry of persons likely to know the facts shows a lack of diligence.”

See also Odeneal et al. v. Halley, 207 Okl. 642, 251 P.2d 1048.

The instant action was filed July 5, 1957, and was tried March 3,1958. It was alleged in the petition that the accident caused “the crossing of his (plaintiff’s) eyes.” The defendants therefore knew long before the trial that plaintiff claimed that the accident caused his eyes to converge which is the condition that plaintiff sought to prove at the trial. The referred-to condition is a disorder that the average layman can detect. Therefore, if defendants wished to ascertain whether plaintiff was physically disfigured by cross eyes or an impediment in his speech or a dragging of his right foot prior to the accident, it would have been a simple matter to have contacted laymen or others who were acquainted with plaintiff prior to the accident and present their testimony at the trial. This, the defendants failed to do. Instead, as was their privilege, they defended primarily on the grounds that there was in fact no accident. If the jury had so decided, plaintiff’s physical condition at any given time would be without significance. While said condition became significant upon the jury finding that an accident occurred, this did not excuse the defendants from in fact meeting the evidence that they had reason to believe plaintiff would offer at the trial.

We are of the opinion that in denying the motion for new trial based on newly-discovered evidence, the trial court did not abuse its discretion.

Affirmed.

WELCH, BLACKBIRD, JACKSON and IRWIN, JJ., concur. DAVISON, C. J., concurs in result. WILLIAMS, V. C. J., and HALLEY and JOPINSON, JJ., dissent.