Dissenting. As I see it, the decisive question is whether the trial court abused its discretion in ordering appellant to go to Tulsa for a physical examination. This question is, I think, properly presented by the record.
Ark. Stats. § 28-357 contemplates that the moving party must show at least the following: (a) There is a controversy over the physical condition of the other party and (b) give the name of the doctor selected to make the examination. As stated by the majority, (b) was not complied with. In the case under consideration the said statute required that appellant be given notice of the hearing. But why give appellant notice if there is nothing she can do, and how could appellant intelligently object to a doctor when she did not even know his name ¶
The obvious answers to the above question forces me to the conclusion that the trial court was obligated to take into consideration appellant’s side of the matter. In other words a situation was presented which called upon the court to exercise its discretion.
Appellant here was given a hearing, but only after the court had already named the doctor in Tulsa to make the examination. At this hearing it was developed that there was a doctor in Fayetteville who, by appellee’s admission, was qualified in every respect. Appellee may have had some good reason why he did not want to use the Fayetteville doctor but he did not so indicate to the court. He chose rather to rely solely on the strict letter of the statute. If appellant had this right then, of course, the hearing was a vain and idle thing.
In view of the record in this case, sending appellant more than a 100 miles to a doctor in another state against her will when the same result could have been obtained by sending her to a doctor in her own town was, in my opinion, an arbitrary act, not based on reasonable discretion, and against the spirit of the statute.
Johnson, J., joins in this dissent.