
    The Miami and Montgomery Turnpike Company v. Lloyd Baily.
    1. In an action to recover for personal injuries, caused by tlie negligence of the defendant, tire court Iras power to require the plaintiff to submit his person to an examination by physicians or surgeons, when necessary to ascertain the nature and extent of the injury.
    3. On the refusal of the plaintiff to comply with such order, when properly made, the court may dismiss the action, or refuse to allow the plaintiff to give evidence to establish the injury.
    3. ■ The refusal of the court to order such an examination of the plaintiff will not be presumed to have been made on the ground of a want of power in the court to make the order, but, in the absence of any showing to the contrary, on the ground that, under the circumstances, the order ought not to have been granted.
    4. The application for such order ought to be so made, as not unnecessarily to prolong the trial, or to prejudice the plaintiff in proving his case. Hence, where the application is not made until after the close of the plaintiff’s evidence in chief, and the commencement of the introduction of the defendant’s evidence, and no reason is shown for the delay in making the application, it may be refused on that ground.
    5. It was not error for the court to refuse to charge the jury, that the refusal of the plaintiff, “at any time after the close of the testimony on his behalf,” to allow an examination of his person touching the injury, by any competent physician and surgeon, affords a presumption against the claim of the plaintiff, as to the character and extent of the injury
    Error to tbe Superior Court of Montgomery County.
    Tbis was an action in the court below by the defendant in error, Baily, to recover damages in the sum of $10,000 for an alleged injury in the small of his back, hips, &c., on the 26th day of February, 1876, which he claims was caused by the said turnpike company unlawfully, &c., permitting a certain bridge on its road in Montgomery county, Ohio, to get, and continue out of repair, and to become and remain an unlawful bridge, &c.; and he further avers that on said day, while lawfully traveling over and upon said road with a wagon drawn by one horse, having with him in said wagon his minor daughter, that he, together with bis said wagon, horse and daughter, without fault, &c., on liis part, and by reason of the unlawful, unsafe and dangerous condition of said bridge, were all precipitated off of the east side thereof, &c., by reason of which, lie avers, he was injured in the small of his back, hips and right side permanently, and that his horse, wagon and harness were greatly injured and damaged.
    The answer denied the allegations of the petition.
    The trial resulted in a verdict of $3,000 in favor of the plaintiff, on which judgment was rendered.
    A bill of exceptions was taken on the trial, embodying all the evidence. The principal question in controversy was as to the extent of the plaintiff’s injuries. The plaintiff examined physicians as experts, to show the effect and extent of the same. The defendant, likewise, produced expert testimony, and during the examination of one of the medical witnesses for the defense, the witness said he was ready and willing to make an examination of the plaintiff’s back. Counsel for defendant then asked the plaintiff to submit to an examination and inspection of his back, by the witness, either in private or in an adjoining room provided for the purpose, or before the jury, and the plaintiff then and there refused to allow the witness' to make the examination or inspection requested of him in behalf of the defendant, whereupon the defendant, then and there, by its counsel, in open court asked and moved the court to order said plaintiff to allow such examination and inspection to be made as aforesaid, and the court refused to make such order and overruled said motion, to which overruling and said refusal to make such order or orders as aforesaid by said court, the said defendant excepted. Similar testimony was given by another witness, and a like request and ruling made during its delivery.
    The evidence being closed and the jury charged, the defendant asked the court to give further, in charge to the jury, the following instructions:
    
      “ If the jury find from the evidence that the plaintiff claims to bear the plain perceptible physical mark or deformity of the injury, of which he complains, about the region of the small of his back, and willfully and without reasonable explanation justifying or excusing it, the plaintiff refused (being present in court) at any time after the close of the testimony on his behalf, to allow an inspection or examination of such mark or deformity, by any competent physician and surgeon, at the request of the defendant, either privately or before the jury, such refusal affords a presumption against the claim of the plaintiff as to the character and extent of such mark or deformity, and the jury have the right to consider such refusal in favor of the defendant.”
    And the court refused to give said instruction as so prepared and asked in charge to the jury, but changed and modified the same by drawing a pencil line through and striking out the following words, to wit: “ Such refusal affords a presumption .against the claim of the plaintiff as to the character and extent of such mark or deformity, and the jury have the right to consider such refusal in favor of the defendant,” and added thereafter and in lieu of the words so stricken out as aforesaid the following words, to wit:
    
      “ The jury have the right to consider such refusal in con- . nection with the proof as affecting the question of the char acter and extent of such mark or deformity.”
    To the refusal to charge as asked, and to the modification, the defendant excepted.
    
      A. Humphreys and David A. Houk, for plaintiff in error :
    On the question of the power of the court .to order an examination as requested we cite: 2 Best on Ev. 1 Am. ed. from 6th London ed., § 513, and the note “ K” thereto, p. 868 ; 1 Plowden, 125, and note A; Schrœder v. Chicago, Rock Island & Pacific R. R., 6 Cent. L. J. 47. As to the question raised by the refusal to give the special charge as requested, and in altering the same and giving it as altered, we maintain it presents a case, which, on principle, is analogous to the presumption arising upon the spoliation of papers, or concealment of evidence claimed to be against the party withholding it, and therefore comes within the rule of the maxim; “ Orrmia praesumwntur conto'a spoliatoreml 2 Best on Ev. same ed. § 413, and authorities cited therein ; 1 Phillips on Ev. 5 Am. ed. note 176, p. 498, m. p. 602; Starkie on Ev. 10 Am. ed. from 4th London, p. 74, m. p. 75 ; 1 Greenleaf on Ev. § 38; 3 Greenleaf on Ev. § 408.
    
      Conover & Craighead and Dennis Dwyer, for defendant in error.
   White,' J.

There are only two questions in the case that we deem it necessary to notice: 1. The question arising on the refusal of the court to require the plaintiff to submit his person to an examination ; 2. That relating to the refusal to charge as asked.

These questions are answered by the following propositions, which we lay down as governing the ease.

In an action to recover for personal injuries caused by the negligence of the defendant, the court has power to require the plaintiff to submit his person to an examination by physicians and surgeons, when necessary to ascertain the nature and extent of the injury.

On the refusal of the plaintiff to comply with such order, when properly made, the court may dismiss the action, or refuse to allow the plaintiff to give evidence to establish the injury.

The dismissal is authorized by section 5?14, Revised Statutes. Authority to exclude the evidence arises out of the inherent power of the court over the subject under investigation. Schrœder v. C. R., I. & P. R. Co., 47 Iowa, 375.

The refusal of the court to order such an examination of the plaintiff will not be presumed to have been based on the ground of a want of power in the court to make the order, but, in the absence of any showing to the contrary, on the ground that, under the circumstances, the order ought not to have been granted.

The application for such order ought to be so made as not unnecessarily to prolong the trial, or to prejudice the plaintiff in proving his case. Hence, where the application is not made until after the close of the plaintiff’s evidence in chief, and the commencement of the introduction of the defendant’s evidence, and no reason is shown for the delay in making the application, it may be refused on that ground.

It was not error for the court to refuse to charge the jury, that the refusal of the plaintiff, “at any time after the dose of the testimony on his lehalff to allow an examination of his person touching the injury, by any competent physician and surgeon, affords a presumption against the claim of the plaintiff as to the character and extent of the injury.

The request excluded from the consideration of the jury, as a justifying or an excusing circumstance, the fact that the application was not made until after the plaintiff had closed his testimony. This might of itself be sufficient ground for the refusal. The object of asking the examination was to obtain the assistance of the plaintiff in furnishing the defendant with additional expert testimony. Testimony thus furnished, the plaintiff had no reason to anticipate when he closed his evidence. If the defendant required an examination of the plaintiff for this purpose, he should have applied for it before the evidence iff the plaintiff was closed. It would have been unjust to the plaintiff to require him to furnish such evidence against himself after his case was closed, and to which evidence he could not have replied except by a successful appeal to the discretion of the court. Por additional evidence on the subject by the plaintiff would have been evidence in chief, and not rebutting evidence.

Judgment affirmed.  