I am of opinion the affirmance of the judgment cannot be justified on sound principles of law. I am of the further opinion the majority has injected into the appeal and held as decisive of a vital issue therein matter that is neither pertinent to nor properly to be considered in the determination of such issue. And, since the holding, if left undisturbed, will, as a precedent, prove fruitful of injustice, I feel compelled to state my views.
The issue in question is whether the court erred in overruling the motion of *Page 158 defendant to require plaintiff to submit to an examination by physicians to be appointed by the court, which is assigned as error. And pertinent to the consideration thereof is the fact that both prior to and after beginning of the trial and before the motion, the plaintiff had submitted and did submit to examinations and to the taking of X-ray pictures by a physician who testified on plaintiff's behalf concerning the injury, relating facts said to be reflected by the examinations and the X-ray pictures which were then in evidence.
The opinion makes a twofold disposition of the assignment. The first is that under the law, as declared in Atchison, T. S.F. Ry. Co. v. Melson, 40 Okla. 1, 134 P. 388, the doctrine of which is reaffirmed by the majority, the trial court was without power to require such examination unless the facts brought the case within the exception announced in Jewel Tea Co. v. Ransdell,180 Okla. 203, 69 P.2d 69, and that the facts do not bring it within such exception. The second is that, even if the trial court had the power to order such examination, there was no error in its refusal so to do because the motion was not timely made.
It is the second ground of the decision that, in my opinion, injects the foreign matter. The parties litigant did not urge it at the trial, nor do they on appeal. Such fact is sustained by the following: When counsel for defendant moved the court to order the examination, the objection thereto interposed on plaintiff's behalf was solely upon the ground that the court was without power to make such order. In ruling thereon the court sustained the objection without comment. The issue presented by the objection was, solely, whether the trial court was clothed with power to make the order. Such being true, under the authority of the holding in Sharp v. Pawhuska Ice Co.,90 Okla. 211, 217 P. 214, plaintiff would not be heard on appeal to justify the court's ruling on the basis of any ground other than that presented below. The rationale of the rule is that the issue raised on appeal must have been considered by the trial court and then only after notice thereof which will enable the adverse party to be heard thereon. In light of the holding I deem it manifest that any consideration of the timeliness of the motion as pertinent to the issue on appeal is precluded by such holding and, therefore, that the only question for review on said assignment is the correctness of the trial court's holding that it was without power to grant the order, which is sustained by the majority in said first ground of the decision.
The holding that the trial court is without power to require the examination is supported by no expressed conviction that it will promote justice on the issues between the parties nor by reference to any recognized applicable principles of law that are indicative thereof. The basis of the decision is expressly made to rest solely upon the doctrine of Atchison, T. S.F. Ry. Co. v. Melson, supra, as applicable and controlling.
It is my opinion that the reason for the doctrine of that case, to the extent that same could be held applicable to the facts herein, no longer obtains, and, further, that the doctrine of that case to that extent has been overturned by this court in Jewel Tea Co. v. Ransdell, supra, and that, on authority thereof, the trial court, in the instant case, had power to order such examination.
The doctrine of Atchison, T. S.F. Ry. Co. v. Melson, supra, is thus declared in the first paragraph of the syllabus:
"The courts of this state cannot, in the absence of statutory or constitutional provision so authorizing, order a plaintiff in an action for damages to his person to submit in advance of or during the trial of the cause to examination by a physician, to be appointed by the court."
That decision is a re-affirmation of a similar pronouncement previously made by the Territorial Supreme Court *Page 159 in the case of City of Kingfisher v. Sparel Altizer,13 Okla. 121, 74 P. 107, which was merely expressive of the holding in Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734, the syllabus of which we quote:
"In a civil action for an injury to the person, the court, on application of the defendant and in advance of the trial, has no legal right or power to order the plaintiff, without his or her consent, to submit to a surgical examination as to the extent of the injury sued for."
Though each of those decisions is directed to a situation wherein the plaintiff had not seen fit in his own interest to expose his person as evidence prior to defendant's request, the soundness of the opinion was not only questioned by the dissent by Justices Brewer and Brown, but by Wigmore on Evidence and the Supreme Courts of many of the states. In the dissent it is said:
"The end of litigation is justice. Knowledge of the truth is essential thereto. It is conceded, and it is a matter of frequent occurrence, that in the trial of suits of this nature the plaintiff may make in the court room, in the presence of the jury, any not indecent exposure of his person to show the extent of his injuries; and it is conceded, and also a matter of frequent occurrence, that in private he may call his personal friends and his own physicians into a room, and there permit them a full examination of his person, in order that they may testify as to what they see and find. In other words, he may thus disclose the actual facts to the jury if his interest require; but by this decision, if his interests are against such a disclosure, it cannot be compelled. . . . It is said that there is a sanctity of the person which may not be outraged. We believe that truth and justice are more sacred than any personal consideration; and if in other cases in the interests of justice, or from considerations of mercy, the courts may, as they often do, require such personal examination, why should they not exercise the same power in cases like this, to prevent wrong and injustice?"
In Wigmore on Evidence (3d Ed.) vol. 8, § 2220 [8-2220] there is declared:
"The duty to bear witness to the truth, by whatever mode of expression may be appropriate, includes necessarily the duty to exhibit the physical body, so far as the ascertainment of the truth requires it."
The author discusses the Botsford case and reaches the conclusion that the rule there announced could have no proper application in cases where the trial court deems an examination proper for the ascertainment of the truth. After calling attention to the necessity therefor by reason of the thousands of dangers incident to modern activities giving rise to personal injuries, the author continues:
"There is and will be no end to the variety of frauds invented; and it will be an ill day for justice when the Courts cease to meet new frauds by new applications of old remedies. Quite apart from the general impolicy of granting to a party the license to conceal truth by any form of refusal, there is, in this class of cases, the added consideration that corporal injuries are today notoriously a subject of frequent fraud and misrepresentation; so that the privilege to withhold the exhibition of the alleged injury may amount in such cases to nothing less than a judicial license for fraud.
"These considerations, together with the absurdity of judicial declaration that a Court lacks the power to control those who seek for their fraud the very aid of the law itself, have weighed emphatically with our Courts and Legislatures. Subject to certain restrictions not affecting the fundamental principle, they have generally repudiated the existence of such a privilege in actions for personal injuries (includingmalpractice):
"1882, Gunnison, P.J., in Hess v. R. Co., 7 Pa. Co. Ct. 565, 566 (The plaintiff complained of an injury of the spine; and the defendant asked for an order of physical examination by means of electrical tests, etc.): `To grant the order prayed for is but to apply the principle of allowing the inspection of writings, *Page 160 fully recognized in this State, to another species of evidence. . . The object of a trial in Court is that substantial justice may be done between the litigants. If a defendant is denied the reasonable opportunity of testing the truth of the plaintiff's allegations, who alleges an injury which can only be discovered upon an examination by experts, Courts of justice may be applied to and relied upon to assist in fraudulent and unjust recoveries upon the testimony of plaintiffs and of witnesses of their own selection, whose only knowledge may be derived from declarations made by the plaintiffs for the purpose of manufacturing evidence in their own favor. Impartial justice could not be expected in such cases at the hands of juries who were not permitted to know the truth and whose sympathies were aroused by the recitation of sufferings which could not be controverted. To permit such a practice would be to encourage perjury and properly subject Courts of justice to public contempt. On the other hand, if the plaintiff's claim is meritorious, if he has sustained the injuries he complains of, he has nothing to fear from the most searching examination. His case will only be strengthened by it.'
"1877, Beck, J., in Schroeder v. R. Co., 47 Iowa 375, 379: `Whoever is a party to an action in a Court, whether a natural person or a corporation, has a right to demand therein the administration of exact justice. This right can only be secured and fully respected by obtaining the exact and full truth touching all matters in issue in the action. If truth be hidden, injustice will be done. The right of the suitor, then, to demand the whole truth is unquestioned; it is the correlative of the right to exact justice . . . To our minds the proposition is plain that a proper examination by learned and skilful physicians and surgeons would have opened a road by which the cause could have been conducted nearer to exact justice than by any other way. The plaintiff, as it were, had under his own control testimony which would have revealed the truth more clearly than any other that could have been introduced. The cause of truth, the right administration of the law, demand that he should have produced it . . . It is said that the examination would have subjected him to danger of his life, pain of body, and indignity to his person. The reply to this is that it should not; and the Court should have been careful to so order and direct. . . . As to the indignity to which an examination would have subjected him, as urged by counsel, it is probably more imaginary than real. An examination of the person is not so regarded when made for the purpose of administering remedies; those who effect insurance upon their lives, pensioners for disability incurred in the military service of the country, soldiers and sailors enlisting in the army and navy, all are subjected to rigid examinations of their bodies; and it is never esteemed a dishonor or indignity. . . . If for this purpose (to show the nature of the injury) the plaintiff may exhibit his injuries, we see no reason why he may not, in a proper case and under like circumstances, be required to do the same thing for a like purpose upon the request of the other party.'"
That there no longer exists any reason for one, seeking redress for injury to the person, to refuse to submit to medical examination where proper to a determination of the claim, is attested by the State Legislature in the Workmen's Compensation Act wherein it is provided submission to such examination is a condition precedent to enjoyment of the benefits thereof. A change of the forum where the claim is prosecuted can have no bearing upon the question.
I know the majority was not influenced in its conclusion in the instant case and I do not believe that this court will ever be influenced in its consideration of the rule by House Bill 503 of the present (22nd) Legislature. That was an Act to require the plaintiff in an action to recover damages for personal injuries to submit to a physical examination. It was killed, however, at the request and insistence of the authors of the Bill, and, of course, in such circumstances that cannot be said to represent the serious and considered opinion of the members of the House of Representatives on the merits of the *Page 161 Bill, or a bona fide refusal of the Legislature to change the rule.
Also, it may be noted that the rule in the Botsford case no longer obtains in Federal courts, but examinations are provided for under the Federal Rules of Civil Procedure.
In my opinion the observations quoted above by professor Wigmore, to which many of like tenor from other jurisdictions could be added, show that the underlying reason for the rule, the right to protect one's person from prying eyes, if existent, is clearly subordinate to the demands of that justice which is ostensibly invoked by the plaintiff. And, in view of the fact that the only evidence concerning the nature and extent of the injury to the plaintiff herein is that to be drawn from expert testimony predicated upon symptoms reflected by personal examination and X-ray pictures of plaintiff's head, the pertinency and force of the quoted observations and the impossibility of a fair trial as therein indicated are too obvious for argument if it be held that the trial court is without power to direct an examination. It is my contention that it cannot be properly so held, in the instant case, on authority of Atchison, T. S.F. Ry. Co. v. Melson, supra, which does no more than reannounce the doctrine of the Botsford case.
The rule declared in the Botsford case is predicated upon the sanctity of the person against invasion by another and, as hereinbefore indicated, the scope of its application as therein considered was confined to a situation wherein the plaintiff had not of his own volition exhibited his person as evidence. The holding therein cannot be properly held to be applicable as authority in situations where the plaintiff, voluntarily, has already so exhibited his person or has done that which in contemplation of law is its equivalent. It is in recognition of this distinction that this court declared in Jewel Tea Co. v. Ransdell, supra, that said rule was without application where the plaintiff had exhibited his body in evidence. We said:
"In the present case the defendant admitted liability for the plaintiff's injuries, whatever they were, and the sole questions for the jury to determine were the nature and extent of such injuries and the amount of damages to be properly awarded therefor. Under these circumstances the exhibition by the plaintiff of the injured portions of her face and mouth could have had but one purpose, namely, to enhance the amount of damages to be awarded by the jury. While the courts are in disagreement as to the authority to require a plaintiff to submit to an examination in the first instance, they are in practical unanimity with respect to the rule to be followed when the plaintiff has offered a portion of his body in evidence, and hold that the same then becomes an exhibit in the case, and that within reasonable limitations the opposite party has the right to make such inspection of it as will enable him to explain, criticize or impeach its value as evidence and to that end have it examined by experts. See Winner v. Lathrop, 67 Hun, 511, 22 N.Y.S. 516; Haynes v. Town of Trenton, 123 Mo. 326, 27 S.W. 622; Chicago, R.I. P. Ry. Co. v. Langston, 19 Tex. Civ. App. 568,47 S.W. 1027, 48 S.W. 610, 611; Houston Texas Central Ry. Co. v. Anglin, 99 Tex. 349, 89 S.W. 966, 2 L.R.A. (N.S.) 386; Chicago N.W.R. Co. v. Kendall, 167 F. 62, 93 C.C.A. 422, 16 Ann. Cas. 560; Booth v. Andrus, 91 Neb. 810, 137 N.W. 884, and Holton v. Janes, 25 N.M. 374, 183; P. 395."
Therein the plaintiff was a minor and it was urged upon that ground that neither the plaintiff nor her counsel could waive the exemption from an examination. In denying the contention the court said:
"The plaintiff misconceives the nature of the right which exists in the first instance, that is, the right of the plaintiff to keep his body out of evidence if he so desires."
While in that case the body was exhibited, I can see no reason why the rule there applied should not be equally applicable where in lieu of the body plaintiff elected to introduce as the exhibit *Page 162 a picture thereof which would be more convincing for the purpose sought to be accomplished. The logic of the holding is not the method of putting the body in evidence but the fact thereof. In other words, where the plaintiff puts the condition of his body in evidence it is the truth of such condition that becomes pertinent to the issue before the court in the determination of which it would be the enactment of a farce to require the court to abide the interpretation made by witnesses of plaintiff's selection. In my opinion, the majority's holding that the plaintiff did not expose her person and therefore the court was without power to require the examination is to mistake the shadow for the substance or the letter of the law for its spirit. From the viewpoint of the majority's interpretation of the quoted holding, if plaintiff had merely exhibited her scalp as evidence, such fact, though productive of no substantial proof of the effects of the injury, would entitle the court to require the plaintiff to submit to examination and X-ray pictures if deemed necessary to establish the truth. But, on the other hand, if plaintiff elected, in lieu of exhibiting her scalp which she knows to be of little probative value, to exhibit in evidence X-ray pictures thereof which do reflect proof of the body condition, the court is foreclosed of power to act. It cannot be gainsaid that such a construction would have the effect of placing a premium on fraud. If the holding in the Jewel Tea case is to be deemed not sufficiently broad to cover the situation here reflected, the same should be widened so as to embrace it, because the reason therefor is fully as great as that for its present scope.
In my opinion, the trial court was possessed of power to order the examination upon a proper showing being made and that this court should reverse the judgment and remand the cause for a new trial. And, further, if the court should adhere to its holding that the trial court is without such power, there should be eliminated from the opinion the considerations therein expressed as to the timeliness of defendant's motion, since that question was not urged or considered by the trial court, but was injected into the appeal by this court.