The

authority by counsel that seems to have much application thereto. courts have held in divorce cases, when the impotency of a party is in queзtion, an examination may be ordered of the person alleged to be impotent: See 2 Bishop on Marriage and Divorce, secs. 590 et seq., and notes. The foundation of this rule is the difficulty of reaching the truth in any other way than by an examination of the person. The authorities referred to may be regarde.l as giving some support to our conclusion. It is the practice of the courts of this state, sanctioned by more than one decision of this court, to permit plaintiffs who sue for personal injuries to exhibit to the jury their wounds or injured limbs in order to show the extent of their disability or suffering. If for this purpose the plaintiff may exhibit his injuries, we see no reason why he may not, in a proper case, and under proper circumstances, be required to do the same thing for a like purpose, upon the request of the other party. If he may be required to exhibit his body to the jury, he ought to be required to submit it to examination of competent professional men.'

The right of the defendant to have the plaintiff personally examined by medical witnesseз, with the view to ascertain the character and extent of his injuries, is not, however, an absolute right. The granting or refusing of an order for such an examination rests in the discretion of the court, and its discretion will not be interfered with unless it has been manifestly abused: Shepard v. Missouri Pacific R'y Co., 85 Mo. 629. In the case of Sioux City etc. R. R. Co. v. Finlayson, 16 Neb. 578, 49 Am. Rep. 724, it was decided not to be error for the court to refuse to order the plaintiff, in an action for personal injuries, to submit to an examination of his person by physicians who are witnesses for the defendant, in the absence of any showing whatever that justice would be promoted thereby, especially when the plaintiff submits to an examination by such witnesses in the presence of the jury. And in Hatfield v. St. Paul etc. R. R. Co., 33 Minn. 130, 53 Am. Rep. 14, it was held that, while the court has the power, in a proper case, and under proper circumstances, to require the plaintiff, in an action for personal injuries, to perform a physical act in the presence of the jury that will show the nature and extent of his injuries, the propriety of doing so in a given case rests largely in the discretion of the court; and when the uncontradicted testimony of a number of witnesses showed, in that case, that the plaintiff limped when she walked, it was not error for the court to refuse to require her to walk across the court-room in the presence of the jury. Mitchell, J., who delivered the opinion of the court in that case, said: "We conclude that a court has the power, in a proper case, and under proper circumstances, to direct the plaintiff to do a physical act in the presence of the jury that will illustrate or show the character of his injuries. And we are by no means prepared to say that there may not be circumstances where the defendant would have a right to such an order. But it is evident from the very nature of things that the propriety of such an order must usually rest largely in the discretion of the trial court; and it would only be in case of a plain abuse of such discretion that we would interfere. In the present case, we think the court very properly refused to direct the plaintiff to exhibit herself to the jury and by. standers by walking across the room. Such an act would have furnished the jury little or no aid in determining the extent or character of her injuries. The only fact it could by any possibility have determined was whether or not she was lame or 'limped,' as she testified, in walking. But there was already ample and uncontradicted evidence of this fact. Her own evidence was fully corroborated by that of three or four witnesses. her neighbors or members of her own family- who had seen her almost daily since the accident."

POWER OF COURT to Order PHYSICAL EXAMINATION OF PARTY DENIED. — But while the greater number of authorities hold that the court has power, in proper cases and under proper circumstances, to compel a plaintiff in an action for personal injuries to submit to an examination of his person, for the purpose of ascertaining the nature and extent of his alleged injuries, there are several cases in which such a power has been strenuously denied: Roberts v. Ogdensburgh etc. R. R. Co., 29 Hun, 154; Neuman v. Third Avenue R. R. Co., 50 N. Y. Super. Ct. 412; Parker v. Enslow, 102 Ill. 272; Loyd v. Hannibal etc. R. R. Co., 53 Mo. 509. Learned, P. J., in delivering the opinion of the court in Roberts v. Ogdensburgh etc. R. R. Co., 29 Hun, 157, said: "We know of no right which this court has to compel a party to submit to any bodily examination. . . . . If a party is entitled to the compulsory exhibition of the body of his opponent, it would seem to follow that he might have such exhibition made before the jury. And the court might require the plaintiff, on the trial, and before the jury, to submit to the same examination as is required by this order. It is undoubtedly true that not infrequently plaintiffs suing for bodily injuries do exhibit in court the injured part. Nor do we know of any reason why they should not do this, notwithstanding the exhibition may excite sympathy. And, on the other hand, all unreasonable concealment of an injured part (not justified by any dictate of modesty or otherwise) may excite a doubt in the minds of the jury as to the genuineness or extent of the alleged injury. But we cannot admit the principle that, either in the presence of the jury, or in the presence of a referee, a party can compel his opponent to exhibit his body, in order to enable phy. sicians to examine and question, and testify." And Napton, J., delivering the opinion of the court in Loyd v. Hannibal etc. R. R. Co., 53 Mo. 515, said: "The proposal to the court to call in two surgeons, and have the plaintiff examined during the progress of the trial as to the extent of her injuries, is unknown to our practice and to the law. There was abundant evidence on this subject on both sides; any opinion of physicians or surgeons at that time would have only been cumulative evidence, at least, and the court had no power to enforce such an order."

PHYSICAL EXAMINATION IN SUITS FOR DIVORCE OR Annulment of MarRIAGE. In suits for divorce or for annulment of marriage on the ground of impotence, it is well settled in England, and generally in this country also, that the court may direct and compel a proper medical and surgical examination of the persons of the parties whenever it is necessary: 2 Bishop on Marriage and Divorce, secs. 590, 591; Pollard v. Wybourn, 1 Hagg. Ecc. 725; H. v. P., L. R. 3 Pro. & D. 126; Devanbagh v. Devanbagh, 5 Paige, 509; 28 Am. Dec. 442, note 450; Newell v. Newell, 9 Paige, 25; Shafto v. Shafto, 28 N. J. Eq. 34; Le Barron v. Le Barron, 35 Vt. 365. But in Anonymous, 35 Ala. 226, it was held to be in the discretion of the court to grant or refuse an order for such examination. And in Page v. Page, 51 Mich. 88, it was held that physicians cannot testify in a divorce suit to what they have found out by a compulsory examination of the persons of the parties; that such examinations are illegal and improper, and that a party should refuse to submit to them. Cooley, J., who delivered the opinion in that case, said: " There was also a most extrordinary compulsory examination of the defendant by physicians, who stripped him, and subjected him to oral inquisition, to compel him to give evidence which they could repeat before the commissioner for use against him. What means they could be supposed to have for compelling him to answer their questions in case he declined, as he ought to have done, we do not know; but we are certain they could not be means known to the law. We

strike from the record all the evidence obtained by this inquisition also. It should be understood that there are some rights which belong to man, as man, and to woman, as woman, which in civilized communities they can never forfeit by becoming parties to divorce or any other suits, and there are limits to the indignities to which parties to legal proceedings may be lawfully subjected."

PLAINTIFF IN ACTION FOR PERSONAL INJURIES MAY EXHIBIT HIS INJURIES to the jury. And there is no valid objection to his exhibiting his injuries to the examination of the surgeon who is called to describe the injury before the jury: Patterson on Railway Accident Law, 424; Mulhado v. Brooklyn City R. R. Co., 30 N. Y. 370.

APPLICATION FOR ORDER FOR PHYSICAL EXAMINATION should not be so made as to delay the trial, or to prejudice the plaintiff in proving his case. And if it is not made until the plaintiff's case is closed, and no reason is shown for the delay, the application may be denied on that ground: Turnpike Co. v. Baily, 37 Ohio St. 104.

IMPROPER CONDUCT OF COUNSEL AT TRIAL, EFFECT OF: See Baltimore & O. R. R. Co. v. Boyd, 1 Am. St. Rep. 362, note 368, where other cases in these series are collected.

OVERHOLT V. VIETHS.

[93 MISSOURI, 422.]

RULING OF TRIAL COURT REJECTING EVIDENCE WILL BE PRESUMED PROPER where nothing is preserved in the record to show the contrary.

IT IS NOT ERROR TO EXCLUDE EVIDENCE OF FINANCIAL CONDITION OF MOTHER in an action brought by her to recover damages for the drowning of her son, when she had already testified as to her circumstances and surroundings at the time the accident happened.

EVIDENCE OF IMPRACTICABILITY OF MAKING FENCE IS ADMISSIBLE as bearing upon the question of negligence, in an action for damages for the death of plaintiff's son, based upon the alleged negligence of the defendant in not fencing on a line of his lot which did not abut upon a street or highway, but on the private property of another, especially where it was shown that the defendant had owned the lot but a short length of time. OWNER OF LAND IS NOT UNDER OBLIGATION TO STRANGERS TO PUT GUARDS AROUND EXCAVATIONS made by him, unless such excavations are so near a public highway as to be dangerous, under ordinary circumstances, to persons passing upon the way, and using ordinary care to keep upon the proper path; in which case he must take reasonable precautions to prevent injuries happening therefrom to such persons.

ACTION to recover damages for the death of plaintiff's child. The opinion states the case.

James P. Dawson and G. M. Stewart, for the appellants. Hitchcock, Madill, and Finkelnburg, and David Goldsmith, for the respondent.

By Court, NORTON, C. J. This suit is to recover damages for the death of plaintiff's eight-year-old son, who was

drowned, as alleged, in a pond of water which had been formed in consequence of rock having been quarried on a lot in the city of St. Louis, owned by the defendant. The jury returned a verdict for plaintiffs, and assessed the damages at ten dollars, and from the judgment rendered thereon they have appealed; and among other errors assigned is the action of the court in refusing to admit in evidence the following section of an ordinance of the city of St. Louis:

"SEC. 15. All holes, depressions, excavations, or other dangerous places within the city of St. Louis that are below the natural or artificial grades of the surrounding or adjacent streets shall be properly inclosed with fences or walls, or be filled up, so as to prevent persons and animals from falling into them."

This ordinance was objected to on the ground that it had not been pleaded, and on the further ground that the other sections of the ordinance showed that said section related to highways. Inasmuch as one of the grounds of objection is based upon the fact that other sections of the ordinance showed that the section in question related to public highways, and inasmuch as those other sections are not preserved in the record, we must indulge in the presumption that the ruling of the court was proper: Kansas City v. Clark, 68 Mo. 588.

During the examination of Mrs. Overholt, and after she had stated that she was the mother of the child, and a widow at the time of the accident; that she had one other child, a daughter, about fifteen years old; that she and her daughter did the housework; that she had no servant, and at the time of the accident, she was engaged in housework,-she was asked what her financial condition was; and this being objected to by defendant as being immaterial, the objection was sustained, and plaintiffs excepted. In view of what she had been allowed to state as to her condition in life, we are of the opinion that the objection was properly sustained. The court, in receiving her statements as to her circumstances and surroundings at the time the child was drowned, went as far as this court has gone in the case of Winters v. Railroad Co., 39 Mo. 468-475, and others to which we have been cited.

The court allowed a witness to state, over the objection of plaintiffs, that along the eastern line of defendant's lot a fence could not be built without drilling post-holes in the rock. It appears from the evidence that the excavation in the lot had been made by quarrying twelve or fifteen years before the ac

cident; that defendant had acquired the lot about four months only before it occurred; that the said excavation extended up to and across the eastern line between defendant's lot and a lot owned by one Hardy; that the eastern bank of the pond, which was precipitous and steep,-in some places fifteen or twenty feet high above the water, was wholly upon the lot of said Hardy, excepting the projection of an occasional rock, extending over the eastern line of defendant's lot. It also appears that the son of plaintiff approached and fell into the pond from the east side, and that he could not approach it from that side without passing over Hardy's lot.

It is clear from the petition that this is not an action to recover damages occasioned by the negligence of defendant in failing to fence his lot along a street or highway to guard against accidents to travelers thereon, but it is based on the alleged negligence of defendant in not fencing on a line of his lot which did not abut on a street or highway, but on the private property of another; and the statement of the witness as to the impracticability of making such fence (if any obligation whatever rested upon him to build a fence there) certainly had a bearing on the question of negligence, especially so in view of the short length of time he had owned the property.

It is next insisted that the amount of damages awarded by the jury is grossly inadequate, and that the trial court erred in not granting a new trial for that reason. The question of difficulty in this case is, whether the plaintiffs had, under the undisputed facts, any cause of action against defendant. It is neither claimed in the petition, nor is it shown by the evidence, that the son of plaintiff fell into this pond while passing along or over a street or highway, by reason of the failure of the defendant to put a fence along such street to guard against such accident; but the petition avers that plaintiff's son fell into this pond on the east side thereof, and the evidence shows that the east bank of the pond was wholly on the lot of one Hardy, with the exception of an occasional rock jutting from said bank, one of which extended about eighteen inches over the line onto defendant's lot, and that plaintiff's approach to the pond was on Hardy's lot. Whether he fell from the bank or jutting rock does not satisfactorily appear.

The rule of liability of an owner of property, under such circumstances, is stated in Shearman and Redfield on Negligence, page 598, section 505: "The occupant of land is under