The sun. [volume] (New York [N.Y.]) 1833-1916, 1893-07-12

CLEVELAND described in his proclamation
OF June 80 as "unwise laws which must be
executed until repealed"
The Physical Examination of Litigants.
Tho Legislature Of this State at the last
session made very important change in
tho law Of evidence which has not attracted
much public attention. and does not seem
to be generally known. even among lawyers.
1t Is in the form Of an amendment to Sec
ton S73 OF the Code OF Civil Procedure, and
is in these words:
In every action to recover damages for personal
injuries tho Court Judge. in granting order for
the examination of tho plaintiff before trial. may II
the defendant apply therefor direct that the plaintiff
submit TO physical examination by one more ply
scians surgeons to be designated by tho Court
Judge: and such exam In alton shall be had and made
under such restrictions and directions as to the Court
Judge shall proper In any action brought to
recover damages for personal Injuries whore the do
PENDANT shall present the Court Judge satisfso
tory evidence that he 10 ignorant Of the nature and
extent Of the injuries complained Of. the Court or
Judge shall order that such physical examination DO
made"
Until this enactment no court in the State
OF New York possessed any power to COM
pei the plaintiff in suit to recover damages
on account Of personal injuries. to submit to
a physical examination In respect TO those
injuries. their character. or extent.
This was expressly decided by the Court
of Appeals In December. 1891. In case
which arose in the Supreme Court in tho
Fourth Judicial Department. where an ap-
plication for IN order directing the plaintiff
in O negligence suit to submit to a physical
examination by surgeons to be appointed
by the Court had been denied. The opinion
OF the Court OF Appeals. in which all tho
Judges concurred. was written by Judge An
DREws. the present Chief Judge. and declares
explicitly that our courts have no inherent
power to compel party to submit to an
examination OF his person. and that in the
absence OF Statute comforting that power.
they cannot. under the cover OF procedure
or to accomplish justice In a particular
case. invade recognized rights OF person or
property. And the language Of his opinion
shows clearly enough not only that the
Court Of Appeals thought the power did not
exist. but also that there was no need OF
establishing it by legislative enactment.
for Judge ANDREWS says:
"Ths exercise by the Court of the power now in.
voked as has been shown. 10 not sanctioned by any
usage In the courts OF England Of this State.
fa.,.es ndiI.nsaHs the due Of jusos
Its exercise depending tho discretion OF tho Judge
would be subject to great abuse. We think the
sumption by tho Court of this Jurisdiction In the
sence OF statute authority would be arbitrary
tension Of Its powers 1t 10 just inference that
alleged power which has lain dormant during the
whole period of English Jurisprudence. and never at
tempted to be exercised in America until within avery
recent period. never in fact, had any existence"
A Ito vii 90 liz 80 ~ To-
eral courts to compel a plaintiff to submit
to surgical examination in advance OF the
trial was taken by the Supreme Court Of
the United States in case decided In the
same year. 1891. The opinion there was
written by Mr.. Justice GRAY OF Massachu-
sets. who quotes with approval the forcl-
BILE statement Of Judge COOLEY, that " the
right to ones person may be said to be
right Of complete immunity: to be let
alone" Mr.. Justice GRAY declares that so
far as is shown by the books within the
reach OF the Supreme Court. no order to
inspect the body OF a party In per-
sonal action appears to have been made
or even moved for In any of the English
courts OF common law at any period OF
their history. 1t was argued that mas
much as the plaintiff might be permitted by
the trial court to exhibit his wounds to the
jury. to show their nature and severity, he
might also be required by judicial order
upon the application OF the defendant to do
the same thing. The answer which Judge
GRAY made to this was that any one with
the permission Of the Court. II he chose to
do so. might BIO allowed to expose
his body in a proper manner. but
that he could not be compelled to take
this course in a civil action. without his con-
sent. Wherever party unreasonably re-
fuses to exhibit his injuries when asked to
do 80 in behalf OF the opposing litigant.
that refusal may always be considered by
the jury as bearing on the question OF his
good faith, Just as may any action on the
part OF a litigant which indicates that he Is
to lay before the jury the best
evidence within his reach
1t should be stated that two members of
the Supreme Court OF the United States,
Mr.. Justice BREWER and Mr.. Justice BROWN.
dissented from this decision. and declared
that the silence OF the common law author
tiles upon the question proved but little
inasmuch as in early days the number OF
suits to recover damages was compare
lively limited.
The fact remains. however. that tine Legis-
lature of 1893 has conferred upon the courts
Of this State power which. in the opinion
OF the Court OF Appeals at Albany and the
Supreme Court at Washington. did not
exist at common law. and the exercise OF
which will constitute a decided novelty
In our Jurisprudence. Fortunately the
statute provides that the medical men
who are to make the examination shall
be appointed by the Court. instead OF
being. as was at one time proposed. Sc
lected by the defendant. 1t will be the dutv