It is unnecessary to consider whether the petition was sufficient to authorize the recovery of exemplary damages, for the claim to exemplary damages was waived on the trial and is not asserted here; the propriety of the action of the court, however, in refusing to instruct the jury as -to the facts which would authorize the imposition of exemplary damages, in view of the general charge given, the amount of the verdict, and the failure of the appellee otherwise than orally, in the trial of the case, to renounce the claim for such damages, made in the pleadings, will be hereafter considered.
It not appearing that the appellant exhausted its peremptory challenges, or that, by the ruling of the court as to the qualification of the jurors McGowan and Taylor, the appellant was compelled to accept any juror that it was not willing should sit in the case, it is unimportant whether the ruling of the court in this respect was correct or not.
The appellant presented a motion requesting the court to appoint three disinterested surgeons and physicians to examine the person of the plaintiff, for the purpose of ascertaining the extent and character of his injuries, that they might testify in the case in reference thereto.
This motion stated no fact which made the granting of it necessary. It was not shown to be necessary to the full presentation of all the facts, nor was it shown that the plaintiff was unwilling to have such an examination made by any respectable surgeon or physician.
The right to have such an examination made, when it is shown to be necessary to the ends of justice, has been maintained. Schraeder v. R’y Co., 47 Ia., 375.
Under what circumstances such a right exists, and may be enforced, it is not necessary in this case to determine.
It certainly will not be recognized and enforced unless shown to be essential to the ends of justice.
The granting of such a motion would ordinarily carry with it the *467idea that the coercive order of the court was necessary in consequence of the unwillingness of the party to be examined, and such unwillingness might be attributed to an indisposition of the person to have the truth known.
2To such impressions should be made unless ground for them is shown by the refusal of the person to be examined.
As presented, we are of the opinion that the court did not err in overruling the motion.
But if this were not so, it would be unimportant in this case; for it appears that the plaintiff did submit to an examination by several surgeons and physicians, whose learning and integrity is vouched for by the appellant in the fact that it used them as witnesses in the case, arid had them relate the result of their examination.
By his pleading, the appellee sought to recover exemplary as well as actual damages, and there was no renunciation of this claim otherwise than by counsel orally in course of presenting the case.
The charge of the court was silent upon this matter, except that the jury were instructed in case they found certain facts to exist: “ You will in that event allow as compensation to plaintiff for such, injuries, such actual damages as he has proven to have sustained; ” and they were informed what matters, they might consider in estimating such damages.
The appellant sought to have charges given under which the jury would have been informed what facts would authorize the allowance of exemplary damages.
It was not claimed either in the pleadings or by the evidence that the injury resulted from any defect in the road or cars, but that it resulted from the negligence of the employees of the railway company.
The charges asked went to the question of the liability of the appellant for exemplary damages if it had used due care to employ and had employed and retained none but skilful, sober and careful employees.
While the charges asked may not have been entirely correct, yet they were such as called the attention of the court to the propriety of giving some charge upon the facts which would render the appellant liable for exemplary damages, unless by a charge that issue was withdrawn from the jury. The bill of exceptions shows that the court was unwilling, or thought it unnecessary, to give any charge upon that subject.
Under this state of facts the appellant was not called upon to ask *468charges which the court from the bill of exceptions would evidently have refused, however correct in form.
The charge in every case should be framed so as to present to the jury the issues made by the pleadings, if there be evidence under them, unless an issue be abandoned and the jury so instructed. In this case the pleadings claimed that there was such negligence on the part of the appellant as entitled the appellee to exemplary damages, and it was for the jury to determine whether the proof was sufficient to sustain the claim.
There was evidence tending to show a high degree of negligence in the employees of the appellant.
When a petition claims exemplary damages, and there is a question as to whether the evidence shows such facts as would sustain such a claim, we are of the opinion that a charge should be given upon that subject, unless, in consequence of an oral statement made in court by the plaintiff or his counsel, the court by a charge withdraws such claim entirely from the jury.
The issues between the parties are made by the pleadings, and when a claim and issue is thus presented, correct practice requires that, if desired, it should be withdrawn in the same way.
To withdraw such an issue and claim by a mere verbal declaration to the effect that it is not insisted upon, after all the evidence has been introduced, and so, by a mere declaration of counsel, made as it is claimed it was done in this cause, during the argument of the cause, may, in causes in which the court does not entirely withdraw the given issue from the jury, if a general verdict is found, result in a verdict and judgment made up by the jury according to their own notions of the law applicable to the case.
Such a verdict may embrace elements of damage which should not be embraced, or may be upon an erroneous view of the law, and to guard against this, in the case before us, we are of the opinion that a charge should have been given by which the jury should have been instructed as to the rules applicable to the claim for exemplary damages, or, by a charge, that question should have been entirely withdrawn from the jury.
The verdict was a general one for $15,000. The injuries to the appellee were shown to be of a very serious character; but, in the light of the evidence contained in .the record, it seems to us that the verdict was higher than justified by the evidence for actual damages; and it may be, had the court by a charge withdrawn the claim for exemplary damages from the jury, or given a proper *469charge upon the question of the right of the appellee to recover exemplary damages, that the verdict would have been less.
The charge of the court was not clear and may have misled the jury, in that it did not instruct the jury as to the degree of care necessary to be used by a carrier of passengers.
That part of the charge which attempted to inform the jury as to the degree of care incumbent on the appellant, and as to what would constitute negligence, was as follows:
“ It is the duty of the defendant to exercise proper care to transport its passengers safely, and the want of such care is deemed in law negligence, for which the defendant is liable.”
The judge who tried this cause certainly did not intend to inform, the jury that a carrier of passengers must use such care as will actually result in the safe carriage of passengers, and that the exercise of a degree of care which does not accomplish that result was negligence for which the carrier would be liable; for this would be to make the carrier an insurer.
The charge is susceptible of such a construction, and may have been so understood by the jury; it is likely, however, in view of the facts, that the jury were not misled by this, when considered in connection with the one which followed it.
The excessive character of the verdict was urged as a ground for new trial, and the refusal to give it is assigned as error.:
For this ruling of the court below, and for the matters before referred to, the judgment will be reversed and the cause remanded.
It is so ordered.
Reversed and remanded.
[Opinion delivered June 26, 1885.]