USA > Texas > Tarrant County > Fort Worth > History of Texas : Fort Worth and the Texas northwest edition, Volume III > Part 5
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In Railway Co. v. Michaels, 57 Kan. 474, 46 Pac. 938, the Supreme Court of Kansas, while asserting the power of the trial court to compel a physical examination, denied it to the railway company in that case, because the application was not made until after plaintiff had closed his evidence, and, further- more, because no necessity was shown to exist requiring such an order.
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In Stuart v. Havens, 17 Neb. 211, 22 N. W. 421, the same question arose, and in almost identically the same manner as here. In delivering the opinion of the Supreme Court of that state, Justice Maxwell said: "The plaintiff below, on his direct examination, was asked to show his arm, which he claimed was injured by falling into the excavation, to the jury. This he did without objection, and afterwards three physicians who had treated the arm professionally testified as to its con- dition, without objection. . Afterwards the defendant below asked the court below to make an order requiring Havens to exhibit his arm to four physicians called by him (the defendant). This the court refused to do;" and error was assigned on this refusal. Dis- cussing this assignment, the court further said: "Where, in a case like this, experts are called by a party, and permitted to make a personal examination of the person injured, and to testify therefrom, there is danger that they will feel under obligations to the party calling them, and, however honest they may be, color their testimony somewhat in his interest ; while in many, if not most, cases their general views upon the question will be
known to the party producing them before they are called. In any event, the evidence partakes somewhat of a partisan character. To avoid this, they should be agreed upon by the parties, or appointed by the court, and an examination, if desired, should be made before the trial begins, although the court may per- mit it to be made during the progress of the trial."
The reasoning of the above case is of pecu- liar force here, because the bill of exceptions here shows that the company's counsel knew and were able to state to the court in advance what these company doctors would swear, for they insert in the bill these words: "Defend- ant could have proved by said witnesses that plaintiff could at that time wear artificial limbs without pain, and get about on them in such manner that her injuries could not be detected in her locomotion." The majority, it seems, rely upon this statement for a pred- icate that the evidence of these doctors would have been so favorable to defendant as to have influenced the jury in determining the amount of the verdict, and therefore, in their judgment, the excluded evidence was material.
I have no right to doubt that counsel's statement was true, and, being true, it was almost sufficient in itself, in my judgment, to exclude the witnesses from testifying as ex- perts, because an expert should come onto the witness stand without himself knowing what his evidence will be, where he is ignorant of the facts upon which his opinion is desired, as must have been the case here, to show any necessity for the examination, and to entitle appellant to raise this question at all. See, also, Turnpike Co. v. Baily, 37 Ohio St. 104; Railroad Co. v. Finlayson, 16 Neb. 578, 20 N. W. 860; Railroad Co. v. Hill, 90 Ala. 74, 8 South, 90; Shephard v. Railroad Co. 85 Mo. 632.
I conclude, then, from the trend of the cases cited, holding that the trial court would have the power to order the examination, that this power should be exercised only in cases where the facts cannot be obtained otherwise, and the ends of justice imperatively demand it, and not where, as in this case, the nature and extent of the injury was patent, and the limbs had been exhibited to the court and jury, and it is not shown that defendant's physicians were not present at the time. While this specific objection was not made by defendant's counsel, yet, if the evidence was
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properly excluded for any legal reason, this court should not reverse the judgment.
But I justify the action of the court upon the further ground that the courts of this country, in the absence of a statute, have no such powers. It may be that the state, by an act of the Legislature, might require ladies in such cases to submit to such examinations in response to the imperative demands of jus- tice, under the penalty of being denied relief in her courts ; but under our constitution such a statute would raise a serious question, and it would not be in accord with the genius of the American republic, nor with the sentiment of the people of Texas.
The Supreme Court of the United States, in the case of Railway Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct. 1000, denied the exist- ence of such a power in any court. Justice Gray says: "The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow. To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass ; and no order or proc- ess, commanding such an exposure or sub- mission, was ever known to the common law in the administration of justice between indi- viduals, except in a very small number of cases, based upon special reasons and upon ancient practice, coming down from ruder ages, now mostly obsolete in England, and never, so far as we are aware, introduced into this country."
In Railway Co. v. Griffin, 25 C. C. A. 417, 80 Fed. 282, where the physical examination of the plaintiff was asked for during the trial, Judge Woods, in delivering the opinion of the Circuit Court of Appeals, after citing Railway Co. v. Botsford, supra, says: "The reason- ing of that case forbids a compulsory exam- ination during the trial equally with one in advance of the trial."
In Lyon v. Railway Co., 142 N. Y. 298, 37 N. E. 113, the Court of Appeals of New York, speaking through Mr. Justice O'Brien, shows that the power to compel a party to submit to personal examination by physicians exists only by virtue of an amendment to an article of their statute authorizing plaintiff's deposition to be taken, and, after citing with approval the above language of Mr. Justice Gray, he adds : "This amendment has changed the law, but it is not so certain that it will ever change the general sentiment of
mankind which was expressed in Judge Gray's remarks." See, also, McQuigan v. Railway Co. (N. Y. App.) 29 N. E. 235; Roberts v. Railroad Co., 29 Hun, 154; Penn- sylvania Co. v. Newmeyer, 129 Ind. 401, 28 N. E. 860.
In the Newmeyer case, supra, the Supreme Court of Indiana said: "To say that the power rests in the sound discretion of the court does not meet the case, for the real question is as to whether the power exists at all. So far as we know, the courts of this state have never attempted to exercise such a power, and we are of the opinion that no such power is inherent in the courts. We think the better reason is against the existence of such a right, and, in the absence of some statute upon the subject, we do not think the courts should attempt to compel litigants, against their will, to submit their persons to the examination of strangers for the purpose of furnishing evidence to be used on the trial of a cause. Should a litigant willingly sub- mit, there could be no legal objection to such an examination, and should he refuse to sub- mit to a reasonable examination his conduct might possibly be proper matter for com- ment ; but this is quite a different matter from compelling him, against his will, to submit his person to the examination of strangers."
In Mills v. Railway Co. (Del. Super 1894) 2 Hardesty, 31, 40 Atl. 1114, it was held that, although the plaintiff had exhibited his leg on the trial to the jury, and at noon recess to the company's physicians, he could not be com- pelled to expose it again to the jury, for the purpose of explanation by one of said physi- cians.
True, the language of Judge Gray was used in a case where the examination was sought out of court; but from the reasoning above I am led to believe, with the Circuit Court of Appeals in the Griffin case, supra, that, if her body was secure from the "touch of stranger" out of court, this right of personal security would follow her even on the witness stand. And, though she may have volun- tarily exhibited her limbs to the jury on one occasion during the trial, there is not power enough in the American Government, State or Federal, in a controversy between herself and a private person or corporation, to lift the hem of her tattered skirt, and expose her mangled limbs to public gaze, or require her to do so against her will. The right of per- sonal security, wherever the common law of
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England obtains, is one of the absolute rights of individuals and the pride of the Anglo- Saxon race, and in our Declaration of Inde- pendence we have declared it to be inalien- able. She cannot deprive herself of it. She cannot contract it away. Nor can she by any act of hers estop herself from the right to assert it. It is the shield of her person, except against the state's right to punish her for crime whereof she is duly convicted according to the laws of the land.
I would gladly close this dissent here, but if there is any assignment in the record upon which I could agree to a reversal of the judg- ment it would be my duty to do so. Hence I feel compelled to discuss other assignments, in order that my reasons for not agreeing may be known.
It was proved by several of plaintiff's wit- nesses that none of the trainmen or other servants of defendant assisted or offered to assist the plaintiff in boarding the train. Defendant moved to exclude this evidence from the jury because it was not the duty of defendant to furnish passengers with servants to assist them in boarding or alight- ing from its trains, except where they are old or infirm, or incumbered with baggage or bundles, etc., and that such evidence was cal- culated to mislead the jury. The court refused to exclude it, and, under the circum- stances of the case, I think properly. It seems that, where the passenger is not afflicted or incumbered in some way, it is not the duty of the railway company to assist her in board- ing the train or alighting therefrom. In such cases, it is only necessary for the company to stop its trains at the stations for a length of time reasonably sufficient for passengers to get off and on, of course furnishing them proper and safe facilities for doing so. When this is done, the passenger must do the rest. But plaintiff's theory was that as it was night, and the platform was not lighted, and as the train was behind time, and only stopped from three to ten seconds-not long enough to dis- charge and take on the passengers in safety, without assisting them-it was a question for the jury to determine whether, under these circumstances, it was negligence in the com- pany to fail to assist the passengers in board- ing the train on that occasion; and, in that view and theory of the case, I think the evi- dence was competent. Railway Co. v. Miller, 79 Tex. 78, 15 S. W. 264; Railway Co. v.
Finley, 79 Tex. 85, 15 S. W. 266; 4 Elliot, R. R. Sec. 1628, and cases cited.
The twelfth assignment of error complains of the opening speech of the plaintiff's coun- sel, and the points raised are shown by the following statement from appellant's brief : "Judge Wilkins, one of plaintiff's counsel, in his opening argument, used the following language : 'Gentlemen of the jury, this is an unequal contest-this poor woman on one side, and this powerful corporation on the other. I say that the evidence shows that it is an unequal contest. Look at the array of witnesses on one side that came here for the railway company and the number that came for Mrs. Langston. We allege in our peti- tion that the train crew was drunk. There was enough testimony in this case to raise the issue. It don't seem to me that the men could have been sober and gave no attention to the passenger cars and passengers in the cars. It was a grave charge made upon the conductor and his underlings. They knew the charge had been made, and the attorneys of the railway company knew the charge had been made, and they didn't open their mouths about it. The man who run that engine was charged with being drunk, and didn't deny it. There were some depositions taken in this case by the notary who had testified in this case-questions propounded by the defendant and crossed by the plaintiff, and the answers written down, sworn to by the witnesses and certified to by Mr. Collier-that never found their way into this court house. Who is responsible for that I do not know. I hope no lawyer in this case. It was not the proper thing to do. Gentlemen of the jury, when these depositions were taken, if it was found by anybody who had any authority in the matter that they were against the defend- ant, it was their duty to let them be returned to the court, filed here as testimony in this case, to be used by the plaintiff if she saw proper to use them, even if the defendant did, on those depositions, lose the case. But they dis- appeared. Where they went I do not know. I don't know who was responsible for them, whether it was the agents of the railway com- pany or the notary public, and I don't believe it was the lawyers. But they are gone. Those depositions were against the defendant ; other- wise they would be on file here today, to be read to you. We were entitled to them but we did not get them. That poor woman who sits there with her limbs cut off, helpless as she
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is, was entitled to those depositions, to be used for whatever they were worth. But you can't get them. They are gone. Collier tes- tified that he took them, but no explanation is made of their absence. They are unac- counted for. Nothing more is said about them by the defendant. When he testified that they hadn't been returned to the court, they didn't attempt to explain it away. Noth- ing more was said about it. They ought not to have done this poor woman that way; they ought to have given her a fair chance. This is almost a death struggle for her. If there is anything in her favor, let her have the benefit of it. Don't rob the grave. Give her a fair show'-which language and argu- ment the defendant then and there excepted to in open court as calculated to leave a false impression on the minds of the jury as to the duty and liability of the defendant, to arouse their prejudice against defendant, and elicit their sympathy in behalf of the plaintiff ; which objection the court overruled, to which ruling defendant then and there excepted, and tendered its bill of exceptions No. 17." The court, before signing, added the following explanation to this bill: "The above bill is signed, with the following modification and explanation : . The remarks of Mr. Wilkins contained in the first paragraph of the above bill of exceptions were objected to, at the time made, by Mr. Lassiter, of counsel for defendant. Mr. Wilkins objected to being interrupted. Mr. Lassiter said that he would not interrupt the speaker any more. Mr. Wil- kins replied that he did not wish to be inter- rupted unless there was good grounds for it. but that he would thank Mr. Lassiter to call his attention to the fact that he was out of the record, if that should occur, and that he (Wilkins) would correct it. Mr. Lassiter, who followed Mr. Wilkins in the argument, discussed before the jury the remarks made by Mr. Wilkins, as set forth in said bill of exceptions." It seems, from the district judge's explanation of this bill, that he did not understand that any part of the speech was objected to except the first paragraph, which relates only to the case presenting an unequal contest, with "this poor woman on one side and this powerful corporation on the other," and to the remarks about the train crew being drunk. In support of the first statement, he said to the jury: "Look at the array of witnesses on one side that came here for the railway company, and the number that
came for Mrs. Langston." The record indi- cates that there were about ten witnesses who testified for the plaintiff, and about twenty-six for the defendant. The remarks about the train crew being drunk were explained by him to be based upon the fact "that the petition charged it, and that the defendant's counsel knew it, and did not open their mouths about it." His remarks show that he only inferred they were drunk, because "when on the stand they did not deny it, and because it did not seem to him that they could be sober and give no attention to the passenger cars and pas- sengers in the cars." I am unable to see that any harm could have resulted from this part of the opening speech, and, if so, it was easily answered and easily turned against the side using such assertions and inferences for argu- ment. An advocate worthy of the name understands very well how to turn such unsupported arguments and assertions to his own advantage with powerful force, and ought to be delighted at the opportunity to do so, without troubling any court with such mat- ters. I am very much averse to limiting counsel in their speeches to the jury, so long as they keep within the bounds of any kind of inferences which may be drawn from proven facts or from the absence of such. These attenuated, filmy inferences often estab- lish the weakness of the speaker's cause, and ought to be gratifying to the opposing coun- sel, where he has the opportunity of answer- ing them, rather than ground of complaint. The reference to the depositions which Collier had not returned was not improper. There was sufficient evidence admitted, without objection from appellant, to entitle counsel to contend that they had been taken by defend- ant, and, being unfavorable to it, had been withheld, and never filed. The inference was legitimate and strong from the facts proved. The balance of the speech, if considered as objected to, was rather in the nature of an appeal for justice and for sympathy, and was not any stronger than the facts of the case warranted. It is perfectly legitimate, in my judgment, for an advocate to magnify the wrongs which he conceives have been perpe- trated upon his client by the adverse party, and appeal to the humanity and sympathy of the jury or court-, to their sense of right and justice ; aye, sweep every chord of every sen- timent of the human soul, until they vibrate in unison with those of the speaker. This is one of the purposes of oral argument, and to
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deny an advocate these rights is to violate the law of the forum, and deprive litigants of the advantages they have a right to expect from the employment of skilled, able, elo- quent, or experienced lawyers. A distin- guished writer on the subject says: "The benefit of the constitutional right to counsel depends very greatly on the freedom with which he is allowed to act, and to comment on the facts appearing in the case, and on the inferences deducible therefrom. The character, conduct, and motives of parties and their witnesses, as well as of other per- sons, more remotely connected with the pro- ceedings, enter very largely into any judicial inquiry, and must form the subject of com- ment, if they are to be sifted and weighed. To make the comment of value, there must be the liberty of examination in every possi- ble light, and of suggesting any view of the circumstances of the case, and of the motives surrounding it, which seem legitimate to the person discussing them." Weeks, Attys. at Law, Sec. 110. And again, quoting from the case of Garrison v. Wilcoxson, 11 Ga. 154, he says: "Parties have a right to appear by counsel, and it is the privilege of counsel to address the jury on the facts. If the jury are to disregard the argument of counsel alto- gether, if they are to shut their ears to their illustrations, comments, and reasonings-how unmeaning, indeed how absurd, is the appear- ance of counsel! It is a most valuable right to be represented by learned and eloquent counsel, not only before the court as to the law, but also before the jury as to the facts." Weeks, Attys. at Law, pp. 240, 241; Abb. Tr. Brief Pl. "Counsel's Address to the Jury," p. 136, Sec. 11, and cases cited. See also Railway Co. v. Brown (Tex. Civ. App.) 40 S. W. 612; Ferguson v. Moore (Tenn. Sup.) 39 S. W. 343. The only point that can legally be made against eloquent appeals to the sympathies of the jury is that the verdict is for more than the evidence fairly sustains, and cannot otherwise be accounted for; and where such is the result of such appeals it is the duty of the courts to set aside such verdicts or reduce them to a sum sustained by the evidence. Counsel may therefore appeal to the sympathies of the jury, but at the risk of having the verdict set aside or reduced by the court, if excessive.
This brings me to the only other serious question in the case, and that is whether the verdict is excessive. It is for $25,000.00 with
no exemplary damages included. Is this sum more than enough to fairly compensate the plaintiff for her pecuniary loss and physical and mental suffering? I have hunted the books through for some definite rule to guide me in the solution of this question, and have found none. I do not think that the eloquent and pathetic language of counsel complained of pushed the verdict beyond the amount at which the mute appeals of her mangled limbs would have placed it. But even these mute appeals sometimes do great injustice, espe- cially with humane and tenderhearted men, whose sympathies, all unconsciously, overcome their reason and judgment, and, when this is so, it is the duty of courts to set aside or reduce verdicts found under such influences. The highest function of a trial court is to arrive at exact justice in the particular case, but this must be attained according to the law of the land; otherwise no man could know his rights or duties. In the trial of such causes as this, where the damages claimed are un- liquidated, and are based, not only upon pecuniary loss, but upon physical and mental suffering as well, it is the peculiar province of the jury to assess the amount of the dam- ages, and, when assessed by them, the court has no right to disturb their verdict, unless it is shown that some error has entered into the estimate, or that it has been unduly affected by some improper influence. In Brooke v. Clark, 57 Tex. 113, our Supreme Court said : "In a case of this nature, where the actual damages may include mental suf- fering through life, the court can rarely set aside a verdict as excessive." In Railway Co. v. Porfert, 72 Tex. 353, 10 S. W. 213, where plaintiff had one leg broken, and was disabled for life, and had suffered twenty-one months and his leg was not well at the trial, the court said they could not say that $14,167.00 dam- ages was excessive, though large, where the trial judge had approved it; citing Railway Co. v. Dorsey, 66 Tex. 148, 18 S. W. 444, and numerous other Texas cases. See, also, Railway Co. v. McClain, 80 Tex. 98, 15 S. W. 789, and cases cited; 1 Suth. Dam. (2d Ed.) Par. 459, 460; 3 Suth. Dam. (2d Ed.) Sec. 1256, and note. Here the record shows that the plaintiff was 37 years old at the date of the injury, was in robust health, and engaged in a business that brought her an income of from $3.00 to $5.00 per day, say an average of $1500.00 a year. It is shown that she is now helpless and requires the aid of an assist-
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ant or servant all the time, and probably will the rest of her life. The proof shows that this assistant or servant will cost her from $30.00 to $50.00 per month, say an average of $500.00 a year. This gives $2000.00 a year, counting the loss of her income and what she must necessarily pay out on account of the injury. It was proved that her health had been impaired by reason of this injury and that she had been compelled to employ physicians and buy medicines, and in all probability would have to continue to do so for years. This last item might run from $100.00 to $300.00 a year, or even more. I am not informed by the statement of facts what her life expectancy is, nor what amount would be required to purchase for her an annuity of $2000.00 or $2500.00 a year during the remainder of her natural life, if such can be obtained in this country. The statement of facts shows: "It was admitted by defend- ant's counsel that her injuries were perma- nent and that she suffered all the pain that any person would suffer from such injuries." Her physical suffering, the record shows, had been great and intense up to the time of the trial, a period of 32 months, and her back and breast, which she testified were also injured in her fall under the wheels, were paining her on the trial, as well as her limbs. One of her limbs was not then healed, and the other, though healed, was extremely tender, and the evidence tended to prove that they would never be well unless she submitted to another amputation, which would be attended with danger to her life. She was suffering pain on the day of the trial, and in all probability would continue to suffer the balance of her days. Her mental sufferings over her muti- lated condition for life-dragging out a living death, as it were-can better be imagined than described. All these facts and figures the jury had before them, and they have found an amount which at first shocks the conscience until the injury is contemplated ; but, when the injury is considered, I am unable to say that it is excessive. The rec- ord fails to furnish any data which enables me to point out wherein and how much it is excessive ; and hence I have finally concluded, after many consultations and much hesitation, that there is nothing in the record that would justify this court in setting it aside. The jury were certainly severe, but I cannot say unjust. The district judge before whom the trial took place is distinguished for his fairness, impar-
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