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chargeable with a design to effect that object, although their leading motive may have been their own gain. A man must be deemed to design the necessary consequence of his acts. If, therefore, he does a wrongful act, knowing that his neighbor will be thereby injured, he is liable." The case of Van Pelt v. McGraw, is cited in Wilson v. Maltby,2 and on its authority the court asserts that the spoliation must be made with knowledge of the lien, and with intent to injure the lienholder with respect to his security. The action was upheld in favor of an assignee in insolvency proceedings, the injury having been committed after the assignment. In Jones v. Costigan, 28 the court says "that Van Pelt v. McGraw establishes the true rule, and that where an injury is committed by the mortgagor, or others acting under his direction, knowing his insolvency and the existence of the security, and knowing that the act complained of will impair it, the action should be sustained.29 In Jackson v. Turrell,30 it is held clearly contrary to the great weight of authority, that a second mortgagee may maintain an action against the mortgagor or his assigns for waste resulting in an injury to the security, and constructive notice by the registration of the mortgage is sufficient notice thereof. Actual notice of the mortgage, it is held, need not be proved, nor need the plaintiff prove that the defendant acted fraudulently or with intent to injure him. Nor is the insolvency of the mortgagor a material fact. The right of lienholders, other than those already noticed, to maintain an action for a spoliation of the real property upon which the lien rests, whereby the security of the lien is injured and impaired, must clearly rest upon and be governed by the same principles. There is greater reason why the holder of a mechanic's or material-man's lien should be entitled to maintain an action at law for an injury to the property covered by his lien, whereby his security is impaired, than exists to uphold

27 59 N. Y. 126.

28 12 Wis. 677.

29 See also State v. Weston, 17 Wis. 107; Knoll v. N. Y. C. & St. L. R. Co., 1 L. R. A. 366, note; Berthold v. Fox, 13 Minn. 501; Scott v. Webster, 50 Wis. 53, 14 N. W. Rep. 280, p. 287; Atkinson v. Hewett, 51 Wis. 275, 23 N. W. Rep. 889; Tomlinson v. Thompson, 27 Kan. 70; Webber v. Pomeroy, 100 Mich. 58, 58 N. W. Rep. 625; Schalk v. Kingsley, 42 N. J. L. 32.

30 39 N. J. L. 329.

such action in favor of a judgment creditor. The lien of a judgment is general, and affects all the judgment debtor's real property, while the mechanic's lien is special, and affects only the particular property on which the work is done, or for the improvement of which the material is furnished.31 A mechanic's or material-man's lien, in such respect, is like the lien of a mortgage. No adjudication of the exact point is found. However, it rests upon the same reasons as the cases cited, and it has been decided that the owner's free enjoyment of the property will be interfered with by injunction when his use of it tends to its injury to such an extent as to impair its value as a security.32 And even subcontractors, it has been held, are entitled to an injunction to prevent the removal of a building which would render their security insufficient. 33 And in Royal Ins. Co. v. Stinson, the Supreme Court of the United States holds that one who has a mechanic's lien on property by virtue of a contract with the owner, has an insurable interest, limited only by the value of the property and the amount of his claim. The subject does not seem to require further consideration of the acts of waste entitling the holder of a lien to a recovery. In Jackson v. Turrell, it is held that in case of a recovery by a lienholder, other than the first, the defendant may pay the amount of the judgment into court, and the court will exercise its equitable powers, in the distribution of the money, to the end that no injustice may be done should the first lienholder seek to recover for the same spoliation. From the foregoing collation and review of the decisions upon the question under consideration, the conclusion clearly must be: (1) That the holder of a lien, either conventional or statutory, upon real property, has a remedy at law for waste, i. e., acts of spoliation, committed upon the property covered by his lien, whereby his security is impaired; (2) that the question of possession or right to possession does not affect his remedy, and, therefore, each is, as a fact, immaterial; (3) that in case the lien

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31 Freeman v. Cram, 3 N. Y. 305; Lanning v. Car penter, 48 N. Y. 408.

32 P. & G. & A. & G. R. R. v. Spratt, 12 Fla. 26.
33 Barber v. Reynolds, 33 Cal. 297.
34 13 Otto, 25.

35 L. Ed., Book 26, p. 473.
36 Supra.

holder is a mortgagee, the question of the maturity of his mortgage is not ordinarily material; (4) that when the personal responsibility of the lien debtor is pledged with the lien, his solvency is a material fact, and to entitle to a recovery, his insolvency must be pleaded and shown; (5) that it must be pleaded and shown that the defendant had knowledge of the lien, but constructive knowledge imputable from registration meets such requirement, if properly pleaded and proved; (6) that it is not, in all cases, necessary to plead and establish as a fact to the effect that the defendant intended to injure and cheat or defraud the plaintiff, but if the complaint is so drawn, the allegation is sufficiently supported, ordinarily, by the presumption that one is deemed to design the necessary consequences of his acts;37 (7) that an injury resulting from mere negligence will not support the action; (8) that the action may be maintained against the owner of the fee of the real property upon which the lien rests, or his assigns, or against a stranger; (9) that the injury complained of must amount to a spoliation-mere acts of occupation, cultivation, or ordinary use, will not suffice; and, (10) that the damages recovered arise out of and pertain to the estate, and must be applied in payment of the debt upon which the lien depends.

GEO. W. NEWTON.

37 Van Pelt v. McGraw, supra. A word of caution seems necessary here. One presumption cannot be based upon another. Hammond v. Smith, 17 Vt. 231. So the defendant's knowledge that the spoliation would impair the value of the plaintiff's security, and his intent to impair, etc., cannot both be presumed in the same case, as one seems dependent upon the other.

TRIAL PERSONAL INJURIES-EXAMINATION BY DEFENDANT'S SURGEON. CHICAGO, R. I. & T. RY. CO. v. LANGSTON. Civil Court of Appeals of Texas, November 26, 1898.

Where plaintiff, in an action for personal injuries, has exhibited her legs in the presence of the court, and physicians who have examined them have testified for her that she would not be able to wear artificial legs, defendant is entitled to have an examination by experts of its own selection, for the purpose of testifying on said point, though they are in its regular employment as surgeons.

STEPHENS, J.: In attempting to board one of appellant's passenger trains at Bridgeport, Tex., on the night of September 13, 1895, appellee fell

or was thrown under the car, and in consequence thereof both of her feet were crushed and had to be amputated. On account of this severe injury and great loss, she recovered a verdict and judgment for $25,000, from which this appeal is prosecuted.

On the question of appellant's liability. the evidence, both as to negligence and contributory negligence, was conflicting, and that issue was fairly submitted to the jury, both in the rulings on the evidence and in the charge, though possibly there was error in permitting a certain line of argument complained of. We proceed, therefore, to consider the exclusion of certain expert testimony affecting the measure of recovery.

Upon her examination in chief, she being the first witness, appellee, after fully describing her injuries, unwrapped her injured limbs, and exhibited them in the presence of the court and jury. Just before doing so she testified: "My right leg is still sore. The other one is healed up. They are both tender. I have some little tin things that I put on my legs when I move from one place to another, and my daughter and son with me. It takes two persons to lift me. I can not bear any weight on my right leg." Here the tin things, termed "cans" by some of the witnesses, were shown to the jury. attended with an explanation of how they were worn. Just before resting her case she offered Dr. Poindexter as an expert witness, who testified: "I examined her limbs, where the amputation was performed this morning. One is partially healed, and the other is not. It is in a very irritated condition, and my notion is will probably be that way always. I do not think it will ever heal. I do not think it would be a very good idea to amputate any more. I would consider it dangerous now to her life. She cannot use artificial limbs on those stumps. You can use only on healed stumps; hers are unhealed. You could not use artificial limbs on either one of them, One looks like it has been healed. The other one never has been healed; at least, it shows places there that there might be indications of pus. It is irritated, red, and inflamed." Upon further examination, cross and redirect, his testimony tended to prove that, in his opinion, the limbs would never heal, because of "a deposit of calcine matter," and that this condition resulted from the splitting of the bones at the time of the injury; and also that, in his opinion, no harm resulted from the use of the tin cans. Appellant offered as experts in its behalf Drs. Saunders and Reily, who qualified themselves as such. Dr. Saunders testified: "I haven't examined the plaintiff in this case. Taking the plaintiff injured as she is, I think I could tell by an eximination, with reasonable certainty, whether the stubs of her limbs would ever get well enough for her to wear artificial limbs." He then proceeded to explain how an examination would enable him to determine whether artificial limbs could be worn, and stated positively that such examination would enable him

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to tell whether the existing trouble was due to a diseased bone. His testimony was at variance with that of Dr. Poindexter as to the advisability and effect of wearing the tin cans. Dr. Reily had amputated the limbs soon after the accident, more than two years before the trial, and testified: "If I should examine her now, I think I could tell whether she is now able, or would at any time hereafter be able, with proper care and treatment, to wear or use artificial limbs. I advised her, while treating her, that she would be able to wear artificial limbs. I told her that she would be able to wear them in four months. * She moved away before the time was out." Appellant was denied the opportunity on the trial of having these witnesses examine the injured limbs, and testify in relation thereto, as will more fully appear from the following bill of exceptions: "Be it remembered that on the trial of the above-entitled cause the defendant requested of plaintiff's counsel permission for Dr. Bacon Saunders and Dr. H. Reily, surgeons of defendant, and in defendant's regular employment, to examine the condition of plaintiff with reference to her injuries, which permission was refused by plaintiff's counsel, on the ground that said Saunders and Reily were in the employment of the defendant, and plaintiff's counsel offered to have plaintiff examined by any number of physicians the court might see proper to appoint, on defendant's application, who were not in any way connected with plaintiff or defendant; that defendant's counsel thereupon made application to the court, and requested the appointment of said Saunders and Reily to examine the plaintiff; that thereupon plaintiff's counsel made the same objection they had made to defendant's counsel, and renewed their said offer; that defendant's counsel thereupon said they would not insist upon the appointment of Dr. Reily, but would be willing for the court to appoint a commission of three physicans and surgeons to examine plaintiff, provided one of them was the said Dr. Bacon Saunders; that the reason that the defendant insisted on the appointment said Dr. Saunders was because of his known reputation as a surgeon, and because defendant's counsel did not believe that his equal was accessible to the court; that plaintiff's counsel objected to the appointment of Dr. Saunders, on the ground that he was in the employment of defendant, and had been brought here by defendant from Ft. Worth for the express purpose of testifying in its behalf, and on the ground that he might be a partisan, but stated that any three doctors or any number of doctors whom the court would regard as competent and impartial, and who were not connected, by employment or otherwise, with the plaintiff or defendant, would be acceptable to plaintiff, and plaintiff had no objection to such commission being appointed by the court to make such examination; that the court asked plaintiff's counsel if Drs. Sanders, Reily, and Stinson would be satisfactory, where.

upon they objected to Drs. Saunders and Reily for the reasons stated above; that they did not know Dr. Stinson, but, if the court thought that he was competent and impartial, they did not object to him, or any number of doctors of that description; that thereupon defendant's counsel objected to the appointment of any commission unless the said Dr. Saunders was also appointed, because of his said reputation as above stated; that the court then said that he would appoint Dr. Stinson, if he was satisfactory to the parties, and he could act or not, as they saw proper; that thereupon the defendant introduced Drs. Saunders and Reily, and asked each of said witnesses if he could tell, by an examination of plaintiff's injuries, whether or not she, the plaintiff, would ever be able to use artificial limbs, which question both of said witnesses answered in the affirmative; that thereupon defendant's counsel propounded the following interrogatory to each of said witnesses separately, 'Doctor, will you please here and now examine the plaintiff and her injuries?' that plaintiff's counsel objected on the ground that said witnesses were in the employment of the railway company, and were partial, and not impartial, and that they had not been appointed by the court to make such examination, and defendant had no right to have such examination made without the consent of plaintiff, and that plaintiff was ready to submit to an examination by doctors con sidered by the court to be impartial and competent, and who were not in any way connected, by employment or otherwise, to plaintiff or defendant; which objection was sustained by the court, and the defendant excepted, and here tenders this its bill of exceptions, the same being No. 16. Defendant could have proved by said witnesses that plaintiff could at 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 conversations between the court and counsel relative to the appointment of a commission, above referred to, was not in the hearing of the jury.”

Dr. Stinson, being thus permitted to make an examination, did so, and was offered as a witness by appellee. After describing what his examination disclosed, he was asked: "Take that limb in its present condition, and allow it to go on without an operation, could she use an artificial limb?" to which he answered: "It is possible that a limb might be devised where the pressure would not fall on the end of the stump. It is possible to devise an artificial member where the stump would not be in contact with the limb, and it might be possible for her to wear it. If the stump should come in contact with the artificial member, she could not wear it." In the main, however, his testimony was favorable to appellee, and tender to show that artificial limbs could not be used, though not so much so as that of Dr. Poindexter. No other experts were introduced.

In this state of the record, was it material error for the court to refuse the request of appellant to have experts of its own selection examine the injured limbs so exhibited to the court and jury, and give their opinions as to whether appellee was capable of using artifical limbs? If error at all, it was clearly material. The amount of the verdict should, and doubtless would, have been materially less if the jury had believed that, instead of being a helpless cripple for life, appellee was capable of locomotion by means of artificial limbs. It is to be inferred from the record that the testimony of Drs. Saunders and Reily, if they had been permitted to make the necessary examination, would probably have been favorable to appellant. But, if not, the bill of exceptions above contains a positive statement to that effect, which we accept.

Every lawyer of experience in the trial of cases knows that experts differ widely in opinion on such matters, quite as much as experts themselves differ in reputation and skill. It is not, therefore, for the court to determine in advance what experts the jury shall believe. That is the peculiar province of the jury. The fact that Saunders and Reily were in the employment of appellant as surgeons went to the weight, and not the admissibility, or their testimony, for any relevant testimony they were capable of giving would not have been excluded upon this ground.

As this was the single specific ground of objection urged to their making an examination of the injured limbs, preparatory to giving an opinion, we come to the question, seeing that the ruling was probably prejudicial, whether the court erred in denying appellant's request for such preliminary examination. If appellee had not made profert of her injured limbs to the court and jury, the request to have experts appointed by the court to make an examination over her objection would present the question which has been repeatedly before the courts, and upon which the decisions are in hopeless conflict, so much so that judges of the same court, notably of the Supreme Court of the United States, are divided in opinion upon it. For the two opposing lines of argument, see the majority and minority opinions in Railway Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct. Rep. 1000. This court, and presumptively our supreme court, stands committed to the views expressed by the majority of the court in the Botsford case. Railway Co. v. Pendery (Tex. Civ. App.), 36 S. W. Rep. 793, in which writ of error was refused.

But, inasmuch as appellee invited an inspection and examination of her wounded limbs by making profert of them on the trial, we bave finally concluded that the case presents a different question from that so often considered, and that its solution should not be influenced by our cherished Anglo-Saxon principle of personal security. In our opinion, itwould bea perversion of that principle to apply it in a case like this, where the plaintiff, unfortunate and pitiable

though she be, voluntarily lays bare before the court and jury her afflicted members for the inspection and examination of the judge, jury, and advocate. For all the purposes of the trial, she thus waived her right to object, upon the ground of an invasion of her right of personal security, to a reasonable and proper examination, under the direction of the court, of the wounded parts. She thus, by her own voluntary act, conferred upon the court jurisdiction to compel what otherwise she might have refused to submit to. Having conferred the jurisdiction, she could not take it away at pleasure, without trifling with the court. It lasted as long as the trial lasted. In our bill of rights it is provided that the accused in a criminal prosecution "shall not be compelled to give evidence against himself," and yet it is held that, if he voluntarily takes the witness stand, he must submit to cross-examination.

It was not pretended that either of the experts offered was personally offensive to appellee, or that the proposed examination would be attended with danger, delay, or inconvenience even. Personal security in any form was not so much as mentioned, eo nomine at least, as a ground of objection. Dr. Reily, it will be remembered, amputated her limbs in the first instance. The only specific objection urged was that the proposed experts were in the employment of appellant, and might be biased. This objection, as before seen, went to the weight, and not to the admissibility, of the evidence. It is to be inferred from the record that, if this objection had been overruled by the court, the examination would readily have been submitted to then and there. We cannot, therefore, escape the conclusion that the real objection to the proposed examination was other than personal security, and hence that the numerous cases cited as authority, both in and out of this State, are not in point.

The only case cited or found that is at all parallel is that of Haynes v. Town of Trenton, 27 S. W. Rep. 622, decided by the Supreme Court of Missouri. The point decided is thus correctly stated in the eight syllabus, which seems to have been prepared by the judge: "Per Macfarlane, J. (Black, C. J., and Brace, J., concurring): Where plaintiff exhibits his injured leg to the jury on a trial as to the cause of the injury, it is error to refuse permission to the adverse party to have the leg examined in open court by experts, with a view to introduce their testimony as to the character of the injury and its probable permanency." In the course of the opinion of Judge Macfarlane, in which two of the other three judges of that division of the court seem to have concurred, and from which the remaining judge does not seem to have dissented, this language is used: "Defendant had the undoubted right, in this case, at any time after the injuries had been shown to the jury, to have physicians examine the injured leg, and testify as experts to its character and probable permanency. The question was not as to the right of defendant to have an examination

of the injuries made, but as to the right to test the effect and reduce the weight of evidence introduced by plaintiff." So we hold in the case at bar, not that the court should have appointed physicians to make an examination in the first instance, for we have no statute prescribing such procedure, but that when appellant's counsel made the following proposition, as shown in the bill of exceptions, "Doctor, will you please here and now examine the plaintiff and her injuries?" the objection made by appellee's counsel should have been overruled, and the witnesses permitted then and there, or at such other reasonable time and place as the court might appoint, to make the proposed examination, and give the result of it to the jury. It seems to us that this would have been simple justice and consequently that it ought to have been done, thereby avoiding the appearance of an ex parte trial on this important issue. No harm could have resulted from such a course. Upon this ground, therefore, we feel constrained to order a reversal of the judgment.

The argument of appellee's counsel of which complaint is made was apparently of a very damaging character, in that it was calculated to arouse sympathy for appellee and prejudice against appellant. It purported, however, to be based upon facts in the record, though some of the inferences, at least, if not all. were wholly unwarranted by the facts proven, and were clothed in language calculated to substitute in the minds of the jury such inferences for facts. In view of the conclusion already reached, we need not determine whether the judgment should be reversed upon this ground, taken in connection with the large and alleged excessive amount of the verdict. Reversed and remanded.

NOTE. It will be observed that the court, in the principal case, place their decision upon the ground that at the trial the defendant, being on the stand, made profert of her injured limbs to the court and jury, and thereby invited inspection and examination of them, and for that reason is not now entitled to claim exemption from examination as a personal privilege. Whether or not this view is correct in view of the facts and circumstances of this case, it may be said that though the authorities upon the main proposition, viz., the right to compel inspection of the body in personal injuries cases, are somewhat diverse, the courts of this country, as a general rule, in the absence of statute, are opposed to it. One of the members of the Texas court, who dissents from its conclusion, calls attention to the leading cases on the subject. In Railway Co. v. Rice, 144 Ill. 227, 33 N. E. Kep. 953, the Supreme Court of Illinois say: "The extent to which courts have gone, sustaining the power to compel such examinations, is that such orders may be made in the sound legal discretion of the trial court, when it appears that such an examination is reasonably necessary to the attainment of justice. But the ruling in this case was placed upon the broad ground that the court had no power to grant the motion, and this court is committed to that doctrine." Parker v. Enslow, 102 Ill. 272; Loyd v. Railway Co., 53 Mo. 515. In Railway Co. v. Mich. aels, 57 Kan. 474, 46 Pac. Rep. 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, furthermore, because no necessity was shown to exist requiring such an order. In Stuart v. Havens, 17 Neb. 211, 22 N. W. Rep. 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 condition, 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. Discussing this assignment, the court further said: "Where, in a case like this, experts are called by a party, and permitted to make a personal exami nation 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 exami nation, if desired, should be made before the trial begins, although the court may permit it to be made during the progress of the trial." The Supreme Court of the United States, in the case of Railway Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct. Rep. 1000, denied the existence 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 anyone, and expecially 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 process, commanding such an exposure or submission, was ever known to the common law in the administration of justice between individuals, 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, 80 far as we are aware, introduced into this country." In Railway Co. v. Griffin, 25 C. C. A. 417, 80 Fed. Rep. 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 reasoning of that case forbids a compulsory examination during the trial equally with one in advance of the trial." In Lyon v. Railway Co., 142 N. Y. 298, 37 N. E. Rep. 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 cit ing 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. Rep. 235; Roberts

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