Brown v. Hutzler Bros. Co.

Pattison, J., delivered the opinion of the Court. This appeal is from a judgment of non pros., entered against the appellant, plaintiff below, in favor of the appellee, Hutzler Brothers Company. It is alleged in the declaration, filed August llth, 1925, that while the plaintiff was walking on the side walk and crossing an alley at the rear of defendant’s building, belong ⁴⁰ ing to and used by the defendant for ingress and egress, “she stepped into a quantity of oil and grease negligently and carelessly dropped there by the defendant, and negligently and carelessly permitted to remain there by said defendant * * *. That as a result thereof she slipped and fell, and broke her left ankle at the joint in two- places^ her body was severely bruised, her nervous system shocked, she suffered great physical pain and mental anguish, she was put to- great expense for medical attention, she has been prevented from attending to her usual avocations, and other great, serious and permanent injuries have been by her thereby sustained.” The defendant filed its plea, upon which issue was joined.

On the second day of November, 1925, the defendant filed its petition asking the court to- appoint some disinterested, competent, and reputable physician of Baltimore City, to make an examination of the plaintiff and to report to it the result of his examination as to her condition caused by the fall complained of. The defendant in its petition called the attention of the court to- the allegations of the declaration, wherein, among other things, it is alleged that the plaintiff, in consequence of the injuries received from said fall, “has been prevented from attending to her usual avocations and has sustained other great, serious and permanent injuries,” and for the injuries so received she claims ten thousand dollars- damages. The petition also- alleged that the defendant “has no information regarding the exact injuries sustained by the plaintiff, and no information indicating that the plaintiff’s injuries were permanent or even serious, but on the contrary, is advised by the nurse in charge of its infirmary, who rendered first aid to plaintiff at the time the injury occurred, that she apparently twisted her ankle”; and that the- defendant has, through its counsel, “made applications to the plaintiff’s counsel for leave to have a physical examination made by some reputable and competent physician of Baltimore City,” which request was refused, unless the- defendant admitted liability for the injuries. ⁴¹ An affidavit was made to this petition and, upon the same day, the court passed the following order: “Ordered by the Baltimore City Court, that, unless cause to the contrary be shown on or before the 9th day of November, 1925, that Dr. George E. Bennett be appointed a special medical examiner for this court for the purpose of making an examination of Emily Brown. That the said physician shall make an examination of the plaintiff and shall make a report, in writing, to the court, said report to be filed as a part of the proceedings in this case, and shall submit himself as a witness at the trial of this case to be subject to cross-examination by both the plaintiff’s and defendant’s attorney, and that the fee of said physician for making the report and testifying shall be charged as a part of the costs in this case.

Copy thereof to be served on attorney for plaintiff on or before the third day of November, 1925.” The plaintiff, on the ninth day of November, 1925, filed her answer to defendant’s petition, in which the plaintiff denied the allegation of the defendant “that it has no information regarding the exact injuries sustained by the plaintiff, and no information indicating that the plaintiff’s injuries were permanent or even serious,” and averred that after the happening of the accident complained of, the plaintiff “was taken to the store of the defendant, where she was examined by the defendant’s expert trained nurse and the nature of her injuries was made fully apparent to the said defendant, and that an examination by the defendant’s doctor would result in nothing other than harassment to the plaintiff.” In her answer she admitted “that she did agree to subject herself to an examination by some reputable physician for the defendant, upon condition that the defendant would agree to a settlement based upon the finding of the defendant’s medical examiner as to injuries sustained by the plaintiff.” The contention is then made in the answer that the case was not one that warranted the appointment by the court of a physician to examine the plaintiff, but should the court hold other ⁴² wise, the order should then “provide for some disinterested physician, selected by both the plaintiff and defendant, and, in default of agreement by this court, at such time as may be convenient to the plaintiff and in the presence of the plaintiff’s physician, and that the cost of such examination, in any event, should be upon the defendant.” On the twenty-third day of November, the court passed its final order, by which it appointed Dr. George E. Bennett special medical examiner for the court, and authorized and directed him to make a physical examination of the plaintiff, and to report, in writing, to the court, with reasonable promptness, giving the result of such examination of the plaintiff, and to send copies thereof to the attorneys for the plaintiff and defendant; “and upon proper summons, to submit himself as a witness at the trial of the case and testify as an expert, appointed by the court, and be subject to cross-examination by the attorneys for the plaintiff and the defendant” ; and that he be allowed reasonable fees for making the examination and for testifying in court and that such fee or fees shall be charged as part of the costs in the case. On the nineteenth day of December, 1925, the defendant filed its second petition, in which it alleged that a copy of the order of the court passed on November 23rd, 1925, was transmitted to Dr. Bennett on the eleventh day of December following. Whereupon Dr. Bennett requested that the plaintiff be sent to his office, saying “in all probabilities it may be necessary to take an X-ray.” This request of Dr. Bennett was forwarded by the defendant’s counsel to plaintiff’s counsel, with the suggestion that he make arrangements to have the plaintiff go to Dr. Bennett’s office, “but the plaintiff’s counsel refused and still refuses to do this, insisting that he is not willing that Mrs. Brown (the plaintiff), should be put to the trouble of going to the office of a doctor who is appointed at the suggestion of the defendant’s attorney.” In further reply to the above-mentioned request the plaintiff’s counsel stated “that the plaintiff is willing to subject herself ⁴³ to an examination by a physician appointed by the court for that purpose, at her own home.” The petition then alleges “that the defendant is advised and believes that there is no reason why the plaintiff should not go to the office of Dr. Bennett, except the unwillingness of her counsel to permit her to go. That the defendant is further advised and believes that a fair and complete examination of the plaintiff cannot be made at her home because of the impossibility of taking an X-ray.” The petition then concludes with a prayer that the court “pass an order requiring the plaintiff to go to the office of Dr. G. E. Bennett to submit herself to the physical examination ordered by this court on November 23rd, 1925, and upon her failure so to do, that a judgment of non-suit be entered for the plaintiff.

Upon this petition, the court, on the eighteenth day of December, passed the following order: “Ordered by the Baltimore City Court that Emily Brown, the plaintiff in this ease, submit to a physical examination at the office of Doctor George E. Bennett, 4 E. Madison Street, Baltimore, Maryland, in accordance with the order of this court signed the 23rd day of November, 1925. “It is further ordered that unless the plaintiff shall submit to such examination or show cause to the contrary on or before the 31st day of December, 1925, a judgment of non pros, he entered against the plaintiff, provided, however, a copy of this order is served on the attorney for the plaintiff on or before the 24th day of December, 1925.” The three orders, above mentioned, were all signed by Judge Bond, then sitting in the Baltimore City Court On December 30th, 1925, the plaintiff, in response to the order to show, cause, filed her answer, in which she averred “that the convenience of the examining physician is not more to be considered than is the convenience of the plaintiff to be examined * * *. That Dr. Bennett is not skilled in the taking of X-ray pictures; that he does not himself take X-ray pictures, and this plaintiff is not willing to' subject herself to ⁴⁴ the taking of an X-ray pdctüre by one not skilled therein. That it has not been the practice of the courts of this jurisdiction, or other jurisdictions, to require a plaintiff, unless by agreement of parties, to proceed to' some particular place other than a suitable place acceptable to said plaintiff, for the purpose of submitting to' a personal medical examination by a representative of the defendant or by some one appointed at the behest of the defendant, and said order is contrary to the accepted practice of this State.” The answer also avers that “the plaintiff in this case is a mature woman, still nervous from the injury she received as a result of the injury, and nervous and apprehensive at being compelled to go to the office of a strange physician at such time as he should select, and submit herself to any examination that might be made therein, although willing, since the original order of this court, to afford said Dr. Bennett every facility in making of the examination at her own home at such time as would suit the convenience of said Dr. Bennett.” The answer then concludes by saying “and she (the plaintiff) asserts that were such orders made permanent, it would be unreasonable, unjust, an abuse of discretion and an arbitrary exercise of a limited authority vested in the court, without due regards to the rights of the plaintiff.” On the twenty-fifth day of January, 1926, the defendant filed its motion for a judgment of