24 York, where it was formerly denied as a common-law right.25 In States where the procedure is authorized, the motion will be granted only where the examination can be made without discomfort, humiliation or danger to the plaintiff.26 Successive examinations will be refused where a sufficient opportunity is given at the earliest examination to make a complete examination and no useful purpose would be subserved by later examinations.27 Diligence in making the motion must be exercised, and the motion will come too late where made after the trial has been entered upon.28 Where the examination cannot be required there is propriety in a holding that the privilege is not waived by the introduction in evidence by the plaintiff of the testimony of persons who made an examination at his instance.29 The privilege of refusing a personal examination cannot be avoided by evidence as to whether the examination, if made, would be harmful.30 - Tex. Civ. App. R. Co. v. Gibbs, 24 N. Y. Code Civ. Proc., § 873. McQuigan v. Delaware &c. R. Co., 129 N. Y. 50; McSwyny v. Broadway R. Co., 27 N. Y. St. Rep. 363; Roberts v. Ogdensburgh &c. R. Co., 29 Hun (N. Y.) 154; Neuman v. Third Ave. R. Co., 18 Jones & Sp. (N. Y.) 412; Cole v. Fall Brook Coal Co., 159 N. Y. 59; s. c. 53 N. E. Rep. 670; aff'g s. c. 87 Hun (N. Y.) 584; 34 N. Y. Supp. 572. 26 South Bend v. Turner, 156 Ind. 418; s. c. 60 N. E. Rep. 271; 54 L. R. A. 396. Where, in an action for injuries to an unmarried female, a physical examination of her person, demanded by defendant, could not have been had without exposure and an exploration of her vagina, which would have resulted in severe pain and in the loss of her hymen, which her physicians testified was then intact, and her clinical history and symtoms were fully developed, a refusal of the trial court to order such physical examination is not ground for reversal of a judgment in her behalf: Louisville R. Co. v. Hartlege, - Ky.; s. c. 74 S. W. Rep. 742; 25 Ky. L. Rep. 152. In an action for negligent injury to the eyes, a request for an expert physical examination in the usual manner should be granted, subject to the limitation that the examination involving the use of drugs to dilate the pupils shall not produce serious discomfort or injurious conse A quences: Atchison &c. R. Co. v. Palmore, 68 Kan. 545; s. c. 64 L. R. A. 90; 75 Pac. Rep. 509; O'Brien v. La Cross, 99 Wis. 421; s. c. 30 Chic. Leg. N. 342; 40 L. R. A. 831; 75 N. W. Rep. 81. 27 Louisville &c. R. Co. v. McClain (Ky.), 23 Ky. L. Rep. 1878; s. c. 66 S. W. Rep. 391; Whitaker v. Staten Island Midland R. Co., 76 App. Div. (N. Y.) 351; s. c. 78 N. Y. Supp. 410; 12 N. Y. Ann. Cas. 87. 28 Paul v. Omaha &c. R. Co., 82 Mo. App. 500; Myrberg v. Baltimore &c. Co., 25 Wash. 364; s. c. 65 Pac. Rep. 539; Southern &c. R. Co. v. Michaels, 57 Kan. 474; s. c. 46 Pac. Rep. 938; Strudgeon v. Sand Beach, 107 Mich. 496; s. c. 2 Det. L. N. 749; 65 N. W. Rep. 616; Chadron v. Glover, 43 Neb. 732; s. c. 62 N. W. Rep. 62; Smith v. Spokane, 16 Wash. 403; s. c. 47 Pac. Rep. 888. 29 Cole v. Fall Brook Coal Co., 159 N. Y. 59; s. c. 53 N. E. Rep. 670; aff'g s. c. 87 Hun (N. Y.) 584; 34 N. Y. Supp. 572. 30 Chicago &c. R. Co. v. Stewart, 104 Ill. App. 37; s. c. aff'd, 203 Ill. 223; 67 N. E. Rep. 830. So, an objection to a' question requiring plaintiff in an action for personal injuries to his wife, to state whether he would object to an examination of her by three physicians appointed by the court, is properly sustained where a motion to appoint physicians to make such examination has been previously refused, and evidence as to the extent. of the injury sustained has been given by several physicians: Gulf motion for an examination was properly refused where its only purpose was to determine a dispute between opposing physicians as to the extent and character of the injury.31 $7277. Exhibition of Person of Plaintiff to the Jury. The plaintiff, if he chooses, may expose his body to the jury with the permission of the court, where no proprieties are violated thereby, but he cannot be compelled to do so without his consent.32 And where this exhibition is made the defendant is then entitled to have an examination made by physicians of his own selection for the purpose of testifying as to the extent of the injury as thus disclosed.33 If, however, the injured person unreasonably refuses to show his injuries on request, that fact may be considered by the jury as bearing on his good faith, as in any other case of a party declining to produce the best evidence in his power.34 § 7278. Evidence to Disprove Claim of Exent of Injury.-Where it is a question whether a certain physical condition is one of the results of an injury, it is competent to show that, on a former trial of the same case, this condition was not mentioned as one of the results of the accident.35 In another case, where the plaintiff testified that he was permanently. injured, and suffered in the arm, head and groin, it was proper to admit evidence that he was able to, and did, perform police duty as a patrolman five months after receiving the alleged injury.36 So, where the plaintiff claimed that his nervous system was wrecked, it was admissible, on cross-examination, to prove his skill as a billiard player.36a § 7279. Susceptibility to Disease as Result of Injury may be Shown.-One method of proving the extent of the injuries received is by showing susceptibilities developed thereby,-as, for example, where the plaintiff alleged injury to his lungs, there was entire propriety in &c. R. Co. v. Pendery, 14 Tex. Civ. App. 60; s. c. 36 S. W. Rep. 793. 31 French v. Brooklyn Heights R. Co., 57 App. Div. (N. Y.) 204; s. c. 68 N. Y. Supp. 287. 22 Faivre v. Mandercheid, 117 Iowa 724; s. c. 90 N. W. Rep. 76; Lacs v. James Everard's Breweries, 61 App. Div. (N. Y.) 431; s. c. 70 N. Y. Supp. 672; Kingfisher v. Altizer, 13 Okla. 121; s. c. 74 Pac. Rep. 107. Chicago &c. R. Co. v. Langston, 92 Tex. 709; s. c. 51 S. W. Rep. 331; aff'g s. c. 19 Tex. Civ. App. 568; 47 S. W. Rep. 1027; 48 S. W. Rep. 610; 33 Lanark v. Dougherty, 153 Ill. 163; 34 Kingfisher v. Altizer, 13 Okla. 121; s. c. 74 Pac. Rep. 107; Clifton v. United States, 4 How. (U. S.) 242; Bryant v. Stilwell, 24 Pa. St. 314. 35 West Chicago St. R. Co. V. Dougherty, 89 Ill. App. 362. 36 Abbott v. Mobile, 119 Ala. 595; s. c. 24 South. Rep. 565. 36a Gamble v. Central R. Co., 74 Ga. 586. permitting him to show that he was more susceptible to lung disease since his injury than before.37 § 7280. Not Necessary that Witness Should Testify to Amount of Damages. Since the allowance of damages in a proper case is the exclusive prerogative of the jury, compensation for the injury may be awarded although no witness has expressed an opinion as to the amount of such damages.38 41 § 7281. Instructions.-What are the proper elements of damage, in an action for injuries, is a question of law, hence the court should clearly state in his instructions the rules of law governing the assessment of damages and not leave that matter to the jury; but the principle does not go to the extent of making it the duty of the court, without request, to formulate a method of computation for the jury to follow in estimating the damages. An instruction not having in mind the main principle, which authorized the jury to award such damages as under the evidence they believed the plaintiff entitled to, has been held erroneous as allowing the award of punitive damages. Where the charge as a whole correctly states the rules as to the measure of damages, it is sufficient without stating all the items in one instruction.* 43 The instructions should be confined strictly to the evidence adduced, and matters outside the issues should not be submitted.** But an instruction that if the jury find for the plaintiff, they shall award 37 Rea v. St. Louis &c. R. Co. (Tex. Civ. App.), 73 S. W. Rep. 555. 38 Chicago &c. R. Co. v. Lewis, 48 Ill. App. 274; Norton v. Vozke, 158 Ill. 402; s. c. 41 N. E. Rep. 1085; 49 Am. St. Rep. 167; Loe v. Chicago &c. R. Co., 57 Mo. App. 350. 39 Camp v. Wabash R. Co., 94 Mo. App. 272; s. c. 68 S. W. Rep. 96. 40 Southern R. Co. v. O'Bryan, 112 Ga. 127; s. c. 37 S. E. Rep. 161; Savannah &c. R. Co. v. Austin, 104 Ga. 614; s. c. 30 S. E. Rep. 770 (use of mortality tables); Galveston &c. R. Co. v. Abbey, 29 Tex. Civ. App. 211; s. c. 68 S. W. Rep. 293; Comstock v. Price, 103 III. App. 19. But see Wheeler v. Bowles, 163 Mo. 398; s. c. 63 S. W. Rep. 675. 42 which plaintiff may recover, if the jury find the issue for him, will not be held to have mislead the jury to believe that damages may be awarded, though not proved by a preponderance of the evidence, where another instruction was given expressly directing that the burden was on plaintiff to prove each element of damages by the greater weight of the evidence: Chicago &c. R. Co. v. Cleminger, 178 Ill. 536; s. c. 53 N. E. Rep. 320; aff'g s. c. 77 Ill. App. 186. "Kyd v. Cook, 56 Neb. 71; s. c. 76 where no evidence to warrant); N. W. Rep. 524. 42 La Porte v. Wallace, 89 Ill. App. 517; Stove Mfg. Co. v. Millane, 89 Ill. App. 532. 43 Graves v. Hillyer (Tex. Civ. App.), 48 S. W. Rep. 889. An instruction enumerating the elements of damages for a personal injury Dixon v. Scott, 74 Ill. App. 277; Sollitt v. Moore, 107 Ill. App. 479 (social standing of defendant where no evidence of that fact); Eckerd v. Chicago &c. R. Co., 70 Iowa 353 (expenses of medical treatment where value not shown). 46 47 45 him such damages, not exceeding a specified amount, as they may think, under the testimony of the case, he is entitled to, has been held not subject to the criticism that it indicates that under the issue joined. the jury might award damages in excess of the compensatory damages to which he may have proved himself to be entitled. Generally, an instruction may be given on the subject of the permanency of injuries, where the plaintiff is suffering therefrom at the time of the trial, or the witnesses have been allowed to express an opinion on the question of the permanency of the injury. So, where it was alleged that one injured in a railroad accident became sick, sore, lame and disordered, and that her spine, brain and nervous system were seriously injured, and evidence that her musical abilities were affected was admitted without objection, it was held proper to instruct the jury to consider the impairment of the plaintiff's accomplishments, if any, and her ability to play musical instruments and sing, by reason of the accident. Care must be used to avoid assuming the existence of facts not proved or admitted, as instructions of this character are open to the objection that they invade the province of the jury.49 An instruction that the jury shall assess the damages at such sum as they believe will fairly compensate the plaintiff for injuries received, taking into consideration, so far as shown by the evidence to result from the injuries, mental anguish and physical suffering, has been held not open to the objection that it assumes that the plaintiff suffered mental anguish and physical pain.50 So, an instruction that, in determining the amount of the damages, the jury should consider all the facts and circumstances in evidence before them, was held not erroneous as assuming that damages were sustained where that fact was admitted on the trial. So, likewise, it has been held that an instruction "that if from the evidence the jury find for plaintifi, 51 seldom regained their strength; and that in this instance the bad effects had been continuous,-it was not error to instruct the jury to take into consideration "any permanent internal injury" sustained by plaintiff: Barr v. Post, 56 Neb. 698; s. c. 77 N. W. Rep. 123. 48 Doolin v. Omnibus Cable Co., 140 Cal. 369; s. c. 73 Pac. Rep. 1060. 49 Hughes on Instructions to Juries, § 192, et seq. 50 Houston &c. R. Co. v. Berling, 14 Tex. Civ. App. 544; s. c. 37 S. W. Rep. 1083. 51 North Chicago St. R. Co. v. Honsinger, 175 Ill. 318; s. c. 51 N. E. Rep. 613; aff'g s. c. 70 Ill. App. 101. 53 then, in estimating her damages, they will take into consideration the physical injury inflicted," was not erroneous as assuming the existence of the physical injury in a case where, under the instructions, the jury could not find for the plaintiff unless they found that physical injuries were sustained.52 The jury should be told to base. their finding solely on the evidence, and the instruction should not be so phrased as to allow the jury to act according to their individual notions of right and wrong regardless of the evidence, and this rule is not suspended in cases where the jury are allowed to make their estimates from facts and circumstances in proof and by considering them in connection with their own knowledge, observation and experience in the business affairs of life. An instruction that, if the jury find for the plaintiff, they shall assess her such damages as they think, under the evidence, will compensate her, etc., is not erroneous because of using the word "think" instead of "believe" or "find." 54 9935 § 7282. Further of Instructions.-The jury should further be instructed that the damages recoverable are limited to those which are shown to be the natural and proximate results of the alleged negligent act.56 The conclusion of a jury on a question of fact should not be coerced by instructions commanding the return of a verdict, as this is another example of an invasion of the jury's province. But an instruction requiring the jury, if they find for the plaintiff, to assess his compensatory damages at such sum as the evidence will allow to reimburse him for his injuries, has been held proper, 52 62 Young v. Webb City, 150 Mo. 333; s. c. 51 S. W. Rep. 709. 53 Fries v. American Lead Pencil Co., 141 Cal. 610; s. c. 75 Pac. Rep. 164; Calumet River R. Co. v. Moore, 124 Ill. 329; s. c. 15 N. E. Rep. 704; 13 West Rep. 506; Cleveland &c. R. Co. v. Jenkins, 174 Ill. 398; s. c. 51 N. E. Rep. 811; rever'g s. c. 75 Ill. App. 17; Illinois Cent. R. Co. v. Farrell, 86 Ill. App. 436; Camp v. Wabash R. Co., 94 Mo. App. 272; s c. 68 S. W. Rep. 96; Howe v. North, 69 Mich. 272; 13 West. Rep. 915; s. c. 37 N. W. Rep. 213. An instruction in an action for damages in which injury to the feelings is alleged, which fails to warn the jury that they cannot allow damages for imaginary injury not warranted by the evidence, has been held open to this objection: Hoover v. Haynes, Neb.; s. c. 93 N. W. Rep. 732. But an instruction to assess such damages as, in the judgment of the jury, will compensate plaintiff for her injury, pain 37 and suffering, has been held not erroneous as permitting the jury to fix the damages without regard to the evidence: Springfield Consol. R. Co. v. Hoeffer, 71 Ill. App. 162; s. c. aff'd, 175 Ill. 634; 51 N. E. Rep. 884. And likewise an instruction authorizing damages in such sum as will reasonably compensate plaintiff for the pain, loss of time, etc., sustained by reason of the accident, has been held not open to the objection that it failed to specify that the jury's findings on such matters must be based on the evidence: Stanley v. Cedar Rapids &c. R. Co., 119 Iowa 526; s. c. 93 N. W .Rep. 489. 54 North Chicago St. R. Co. v. Fitzgibbons, 79 Ill. App. 632. 55 Ilges v. St. Louis Transit Co., 102 Mo. App. 529; s. c. 77 S. W. Rep. 93. 56 Leek Milling Co. v. Langford, 81 Minn. 728; s. c. 33 South. Rep. 492. 57 Hughes on Instructions to Juries, § 185, et seq. |