to pay the expense of such examination by the physicians selected by the court." The court ruled that it had no power to order the examination without the plaintiff's consent. We understand the court as putting the refusal solely upon the ground of a defect of power.

der examina

The Code ( 206,) declares that "every court has power * * * to control, in furtherance of justice, the conduct of its officers, and all other persons connected with a judicial proceeding before it, in every matter ap- Power of pertaining thereto." It can certainly admit of no court to ordoubt that, in a proper case for such examination, tion of plaintthe cause of justice would be subserved by it, and it's person. the decided weight of modern authority is that courts have such power. A very full and clear statement of the matter is found in 1 Thomp. Trials, § 859. The language of the author is as follows: "In modern trials of civil actions for physical injuries, the question has frequently arisen whether the court has power to order an inspection of the body of the plaintiff or person injured, for the purpose of ascertaining the nature and extent of the injuries. Some of the courts, carrying in their minds no higher conception of a judicial trial than the conception that it is a combat, in which each of the gladiators is permitted, within certain limits, to deceive and trick the antagonist and the umpire, have denied the right of the defendant to have an order for such inspection. Other courts, taking the more enlightened view, that the object of a judicial trial is to enable the state to establish and enforce justice between party and party, have held that it is within the power of the trial court, in the exercise of a sound discretion, in proper cases, upon an application seasonably made, under proper safeguards designed to preserve the rights of both parties, to order such an inspection, and to compel the plaintiff or injured person to submit to it. Another court has held that, where the plaintiff in such an action alleges that his injuries are of a permanent nature, the defendant is entitled, as a matter of right, to have the opinion of a surgeon, based upon a personal examination, unless there is already an abundance of expert evidence; in which case the court, in its discretion, may refuse to order an examination. Another court has ruled that the trial court may require the plaintiff in such an action to submit to a medical examination, and dismiss his action, if he refuses to comply with the order. This conclusion may be placed upon the higher ground that, when a person appeals to the sovereign for justice, he impliedly consents to the doing of justice to the other party, and impliedly agrees in advance to make any disclosure which is necessary to be made in order that justice may be done. The conception of

the nature and objects of a judicial trial which denies to the defendant, under proper safeguards, the right of such an inspection, is not higher than that of the old law, which would not even compel a party to produce a deed or private paper in a civil case, where it was intended to be used in evidence against him-a rule which the court of chancery invaded, to prevent failures of justice, and which has almost entirely disappeared from modern civil jurisprudence." The cases cited pro and con are: White v. Milwaukee City R. Co., 61 Wis. 536, 18 Am. & Eng. R. Cas. 213; Walsh v. Sayre, 52 How. Pr. (N. Y.), 334; Shepard v. Missouri Pac. R. Co., 85 Mo. 629; Schroeder v. Chicago, R. I. & P. R. Co., 47 Iowa 375; Miami & M. Turnpike Co. v. Baily, 37 Ohio St. 104; Atchison, T. & S. F. R. Co. v. Thul, 29 Kan. 466, 10 Am. & Eng. R. Cas. 783; Hatfield v. St. Paul & D. R. Co., 33 Minn. 130, 18 Am. & Eng. R. Cas. 292: Sibley v. Smith, 46 Ark. 276; Shaw v. Van Rensselaer, 60 How. Pr. (N. Y.), 143; Neuman v. Third Avenue R. Co., 50 N. Y. Sup. Ct. 412; Roberts v. Ogdensburg & L. C. R. Co., 29 Hun (N. Y.), 154; disapproving Walsh v. Sayre, 52 How. Pr. (N. Y.), 334, and Shaw v. Van Rensselaer, supra. See Sidekum v. Wabash, St. L. & P. R. Co., 93 Mo. 400, 30 Am. & Eng. R. Cas. 640.

As to the suggestion made in argument, that the rule would operate hardly upon delicate and modest females, we can only say that they would be safely guarded by the discretion of the trial judge. There would be no danger, we think, in this country, of an examination being ordered needlessly, or where an improper shock to modesty or feelings of delicacy would be likely. We decide simply that the power exists, and that in each case it is to be exercised or not, according to the sound discretion of the presiding judge. We think there ought to be a new trial in the present case. As we deal only with the question of power, we forbear to enter into the nature of the showing which ought to be required as preliminary to its exercise, further than to say that generally there should be a request made of the plaintiff before the trial comes on to submit to the examination applied for; for the plaintiff's refusal to do so should be verified, as also should the probability that examination would likely result in some material discovery or disclosure. When the examination is compulsory, there is obviously propriety in the experts being selected by the court rather than by one or both of the parties. It is likewise obvious that all the expenses should be borne by the party at whose instance the examination is made. Judgment reversed.

Submission of Person to Inspection of Experts,-See Missouri Pac. R. Co. v. Johnson (Tex.), 37 Am. & Eng. R. Cas. 128; Owens v. Kansas City, St.

J. & C. B. R. Co. (Mo.), 33 Id. 524; Sidekum v. Wabash, St. L. & P. R. Co. (Mo.), 30 Id. 640; Chicago & E. I. R. Co. v. Holland (Ill.), 30 Id. 590; International & G. N. R. Co. v. Underwood (Tex.), 27 Id. 240, note 245; Louisville, N. A. & C. R. Co. v. Falvey (Ind.), 23 Id. 522; Sioux City & P. R. Co. v. Finlayson (Neb.), r8 Id. 68, note 77; White v. Milwaukee City R. Co. (Wis.), 18 Id. 213, note 216; Atchison, T. & S. F. R. Co. v. Thul (Kan.), 10 Id, 783, note 791.

GULF, COLORADO & SANTA FE R. Co.

V.

HATHAWAY.

(Texas Supreme Court, January 10, 1890.)

Damages Judgment Over Against [Co-Defendant. Where two railroad companies are sued for damages for personal injuries sustained in a collision, one of the defendants may ask for a judgment over against its codefendant upon the ground that the latter was solely responsible for the

accident.

Same-Sufficiency of Verdict. In an action against two railroad companies for negligence causing personal injuries, where one of the defendants asks judgment over against its co-defendant, a verdict in the following terms: We the jury, find for the plaintiff against the G. R. Co., find for S. R. Co., damages to the amount of $4,000," is untelligible.

46

APPEAL from District Court, Fort Bend County.
J. W. Terry for appellant.

Parker & Pearson and Brady & Ring for appellees.

Facts.

HENRY, J.-Appellee instituted this suit against appellant and the Southern Pacific Company, both railroad corporations, to recover damages. Plaintiff charged that he was a passenger on a train being operated by the Southern Pacific Company, when it came in violent collision with a locomotive engine obstructing the track, causing the car in which he was riding to be derailed and wrecked; that, in order to avoid the apparent danger of being crushed in the wreck, he jumped from the wrecked car, and was, without fault on his part, permanently injured by having his ankle terribly wrenched and sprained. The petition alleges that the obstruction of the track was caused by the servants of appellant, who negligently pushed the obstructing engine so near the track over which plaintiff was being transported as to cause the collision, and that the Southern Pacific Company was guilty of negligence in failing to discover and remove the obstruction before the arrival of the colliding train.

Among other defenses the Southern Pacific Company

over.

pleaded that plaintiff's injury was caused solely by the gross negligence of its co-defendant, and it prayed that, Judgment- if any judgment was rendered against it in favor of plaintiff, judgment over be rendered in its favor against its co-defendant for the amount of such verdict. Appellant excepted to the answer of its co-defendant seeking judgment over, upon the grounds that it was not a plaintiff, and not entitled to such relief in this proceeding. It is contended that the court erred in overruling this exception, but it is not stated in what the error consisted, and we can see no satisfactory reason why such relief may not be administered if the evidence shall justify it.

The jury returned a verdict, reading: "We, the jury, find for the plaintiff against the G., C. & S. F. Rwy. Co., find for Southern Pacific Company, damages to the amount Sumelency of of ($4,000.00) four thousand dollars." Upon this ververdict. dict the court rendered judgment in favor of plaintiff against appellant for the amount specified in the verdict, and discharging the Southern Pacific Company, with costs. Appellant complains that the verdict is "unintelligible, indefinite, and uncertain." We think the objections are well taken. Without the aid of the pleadings we think the verdict would be construed to be in favor of the Southern Pacific Company for the amount of damages given, and would not show what was found in favor of plaintiff against appellant. As both plaintiff and the Southern Pacific Company pray for the same money judgment against appellant, the pleadings do not remove the difficulty produced by the phraseology of the verdict. It is true that the verdict does not show that the only contingency upon which a verdict was asked by the Southern Pacific Company arose. It is not difficult to make verdicts express the conclusions of the jury, and while they may be liberally aided by the contents of the record, and enforced, when, if so aided, there can be no uncertainty as to the intention of the jury, mere conjecture cannot be resorted to. In this case we are not able to give to the verdict, aided by the pleadings or the charge of the court, a construction that will support the judgment. Moore v. Moore, 67 Tex. 297. The other questions raised by the assignment of errors are not such as are likely to occur on another trial. The judgment is reversed, and the cause remanded.

DUKE

v.

MISSOURI PACIFIC R. Co.

(Missouri Supreme Court, December 21, 1889.)

Personal Injuries-Damages Professional Services-Instructions.-An instruction to compensate plaintiff if there were expended “large sums of money for professional services, physicians and nurses" does not authorize the jury to allow for professional services other than those of physicians and nurses.

Same-Damages-Liability for Expense of Treatment. Where the evidence shows that plaintiff after the accident was treated in a hospital, and it does not appear that she expended. any sum for services or medicines, or incurred any express liability therefor, or a liability quantum meruit upon an implied assumpsit, there is a failure of proof to support an allegation in the petition, that the plaintiff "expended a large sum of money for professional services of physicians and nurses, and for drugs," and a recovery therefor is not warranted.

APPEAL from Circuit Court, Lafayette County.
Robt. Adams and T. B. Buckner for appellant.

A. Comingo and Andrews & Lee for respondent.

BRACE, J.-This is an action for damages for personal injuries, alleged to have been sustained by the plaintiff while a passenger on one of defendant's passenger trains, caused by the derailment of the train, and the overturning of the car in which plaintiff was seated, and its precipitation down an embankment, through the negligence of the defendant's servants. The jury found for the plaintiff, and assessed her damages at $5,000.

Instructions

1. No errors are assigned on the admission or exclusion of evidence. The instructions, as a whole, presented to the jury not unfavorably to the defendant the measure of care which a carrier of passengers is required to as to measure exercise, and defendant, in the argument, concedes of damages. that there was evidence given which, under proper instructions, would authorize a verdict for the plaintiff; but complains that "the amount of the verdict, under the evidence, is such as to justify the belief that the jury were misdirected." So that, practically, the only questions to be inquired into in this case arise upon the instructions given upon the subject of damages and the amount assessed. The allegation of damages in the petition is "that, on account of said injuries, it was necessary for plaintiff to expend, and she did expend, a large sum of money for professional services