The opinion
WILLIAMS, J.
(concurring). I concur in the conclusion reached that the cause should be reversed, and a new trial awarded, on the ground that competent evidence was excluded, which constituted a substantial violation of a constitutional or statutory right (section 6, article 2 [Bill of Rights], of the Constitution of this state; section 14, Williams’ Ann. Const. Okla.) in that competent evidence upon a material issue, where there was a sharp conflict in the proof, was excluded. Such being the case, it cannot be said that a fair trial was had. Under the mandatory self-executing provision of said section 6, all parties are guaranteed a fair trial. Neither the court nor the Legislature have the power to suspend this provision of the Constitution, and I am confirmed in this view in that the states of Arizona, California, and Oregon have recognized the necessity of granting such power to appellate courts by means of a constitutional provision, if such courts are to exercise such authority.
Section 22 of article 6 of the Constitution of Arizona is as follows:
“The pleadings and proceedings in criminal causes in the courts shall be as provided by law. No cause shall be reversed for technical error in pleading or proceedings when upon the whole case it shall appear that substantial justice has been done.”
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By virtue of this grant of. power the Supreme Court of Arizona has exercised its discretion to determine whether or not a cause should be reversed when, competent evidence upon a material issue is excluded. See
Albert Steinfield & Co. v. Wing Wong,
128 Pac. 354 ;
Aris. E. R. Co. v. Globe Hardware Co.,
129 Pac. 1104 ;
Erickson v. State,
127 Pac. 754 .
Section 3, article 7, of the Constitution of Oregon, as recently amended, provides as follows:
“In actions at law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict. Until otherwise provided by law, upon appeal of any case to the Supreme Court, either party may have attached to the bill of exceptions the whole testimony, the instructions of the court to the jury, and any other matter material to the 'decision of the appeal. If the Supreme Court shall be of the opinion, after consideration of all the matters thus submitted that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial; or if, in any respect, the judgment appealed from should be changed and the Supreme Court shall be of the opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on,appeal to the Supreme Court; provided that nothing in this section shall be construed to authorize the Supreme Court to find the defendant in a criminal case guilty of an offense for which a greater penalty is provided than that of which the accused was convicted in the lower court.”
Section 4% of article 7 of the Constitution of California provides :
“No judgment shall be set aside, or new trial granted in any criminal case on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter of pleadings or procedure, unless, after an examination of the entire case including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”
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Section 19, article 2 (Bill of Rights), of the Constitution of this state (section 27, Williams’ Ann. Ed.) provides:
“The right of trial by jury shall he and remain inviolate. # ;jc
In view of section 6 of our Bill of Rights, which guarantees to every litigant, both plaintiff and defendant, a fair trial, and section 19 of the Bill of Rights, which guarantees that the right of trial by jury shall remain inviolate, I feel that this court would be guilty of an act of usurpation, if it were to affirm a judgment in a case where competent evidence upon a material issue had been excluded from the jury’s consideration, for the party who had been denied the benefit of this evidence would not have had a trial before a jury. Whenever the people of this state, through the agencies provided for the amendment of the Constitution, adopt an amendment or provision, as has been done in Arizona, California, and Oregon, which grants the power to this court to scan the record, examine the evidence, weigh the same, and try the issue, just as the jury are permitted to try and hear it, then we will have such right to affirm a case, though competent evidence on a material issue has been, excluded from the jury’s consideration. Courts are bound by the law. The people have made the Constitution of this state, which is supreme, except as to federal matters. The Constitution flowing from the sovereign people, when the courts obey the Constitution they are the servants of the people. When through legislative enactment or by judicial construction they depart from the mandates of the Constitution, they have ceased to be the servants of sovereignty, but have set up themselves in defiance of such expressed will, though it be to meet a popular clamor.
In
Austin & Northwestern R. Co. et al. v. Cluck,
97 Tex. 372 , 77 S. W. 403 , 64 L. R. A. 494, 104 Am. St. Rep. 863 , 1 Ann. Cas. 261, in an opinion by Chief Justice Brown, it was held:
“The refusal of a party to submit to a physical examination is a fact which the opposing party is entitled to have go to the jury to be considered by them in weighing the evidence in the case.”
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On the -trial of the cause the following question was propounded to the defendant in error on cross-examination, he having testified in chief in his own‘behalf:
“I will ask you .whether or not a proposition has been made to you to have the court, without, the suggestion of counsel for defendants, appoint a committee or board of skilled physicians to examine you physically with a view of ascertaining the nature 'and extent of the ailments of which you complain and their cause ?”
The opinion of the court continues:.
“To this question counsel • for plaintiff obj ected on the ground ‘that the same was incompetent, irrelevant, and immaterial, and that the purpose of it was to prejudice the plaintiff’s case before the jury; that the matter had already been ruled upon by the court, and could not again be inquired into; and that the right to decline to submit himself’ to a physical examination by physicians to be appointed by the court was a legal right.’ The objections were sustained by the court. In this ruling the court erred. The, reason for refusing á physical examination of the plaintiff is. not that the defendant is not entitled to have the benefit of the evidence, but because the court has- no power to force the plaintiff to submit to such an examination. ■ He has the right to submit or refuse; but in case he should refuse the defendant is entitled to have that fact go^ to the jury to be considered by them in determining upon the credibility and sufficiency of the testimony upon which he seeks to recover.
Union Pac. R. Co. v. Botsford,
141 U. S.
255.
If the jury should believe that the refusal showed a purpose to conceal the truth, they might take the 'fact in account in weighing the evidence. If a satisfactory reason should be given for a refusal, and other evidence were sufficient, the refusal would not defeat a recovery. The suggestion that the court might enforce its order by refusing to submit the case to a jury is not sound, for in this state a party is entitled to a trial by jury whenever he produces evidence which shows
prima facie
a right to recover. In case of' unreasonable refusal to allow examination, the court could and should set aside the verdict, unless the evidence satisfactorily established the right. It is claimed by the defendant in error that these matters 'occurred in the presence of the jury, who were fully informed as to the plaintiff’s refusal. That is true, but the action of the court had the effect to. take it from the jury, which would neutralize any effect that the occurrence, in the presence of the jury, might have had upon their minds. It was equivalent to.telling the jury.that it was not to be 'considered by them. The defendant in error
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would get no benefit from the fact that the question was asked and objected to in their presence by the plaintiff’s counsel.”
The devotion of the Supreme Court of Texas to the rights of the people, as well as being learned in the law, is well recognized.
It appears to me that the exclusion of the evidence complained of, especially when there was a sharp conflict as to whether or not the injury had been sustained, as contended, was prejudicial to the rights of the defendant and a substantial violation of a constitutional or statutory right guaranteeing a fair trial before a jury.
As to the other questions passed on by the Chief Justice, I incline to the view that the same should not now be decided, as upon another trial the evidence may be more specific and complete as to the injury alleged to have been sustained as to the kidneys and also as to the alleged paralysis being the proximate cause of the injury.
With these observations'! concur in the judgment reversing the case.