Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1910-10-13

dence and might have msed the jury misappy them and
omit apply them where they properly applicable and
that they ignore the doctrine of ast clear chance We do not
regard the duty of court to refer specifically to facts in
the to which its instructions intended to apply if not
requested do The instructions state the law correctly
The evidence did require further recognition of the last
clear chance than appears in the instructions shown in the
bill of exceptions The entire charge not brought here and
may have further referred to this
Exception la taken the granting of the defendants
motion for order requiring the plaintiff be examined
his physical condition. alleged in the complaint by such
physician and surgeon the may think proper such
time and place the appoint" The motion
based upon the affidavit of the defendants attorney of his in
formation and belief that the plaintiff twas suffering with
tuberculosis and that unless he would submit examination
of his physical condition the aan would be unable procure
expert testimony the extent of the tuberculosis condition.
its effect upon the plaintiffs earning capacity his life
pectancy because of it," and that the examination
ary order that the defendant might neignty defend the
action The motion presented and argued before the trial
and denied wthouf prejudice to its renewal at subsequent
time during the trial. The plaintiff having rested his case
after tefyng in his behalf and without offering any
pert testimony his physical condition. the order made
the plaintiff obiecng that it violation of his personal
liberty that James r. Judd, physician and surgeon duly
authorized to practice and practcng the Territory of Ia
wa and having interest in the suit herein he and he is
hereby appointed examine time suitable and convenient
the said Judd and said plaintiff herein, the said plaintiff
his physical condition. the result of said examination to
be established by the oral evidence of said James r. Judd
far the competent relevant and MATERIAL to be used
by either party heeo The doctor called by the defend
ant after stating part what he had observed in the
animation sad off had the stripped could show very
much better than could talk about it Just what his condition
is" Thereupon the plaintiffs attorney asked the defendants
attorney Iave you objection " the reply being 81 have
objection let's have it." The plaintiff then stripped to
the waist in the and examined by the doctor who
showed that the plaintiff had not been injured in the
the he had testified for himself The defendant
claims that this a waiver of the plaintiffs exception.
Undoubtedly the defendant did intend his ex
cepon to the order by offering himself examination but it
may be inferred that expected show to the Jury that the
he
and perhaps could convince the doctor of this afterwards
tried to do III crossexamnation If he rely his
exception could he consistently seek in this manner gain any
benefit for himself Instead of Directing the doctor testify
ing or afterwards moving that his testimony struck out
thereby giving the court opportunity reconsider the ORDER
the plaintiff proposed that his be examined pres
of the jury This inconsistent with relying upon his
exception 1t held in Union Pacific Rapay Co. " Bots
ford 141 T. s. 25O 251 253 like that before us that
the United States Circuit Court had properly denied
by the defendant three days before the trial that the plaintiff
be required to submit to surgical examination the ground
that No light is Held sacred is carefully guard
ed by the common law than the right of individual TO
the son and control of his person. free from all
srant or interference of Others unless by clear and unques
tonabe authority of law and that to inspect the
body OF party in personal action appears have been made
or even moved for in of the English of
law any period of their history In Camden Suburban
Ry Co. W SeOn. III U. S. 172, ia action in the IT, s.
District Court for New Jersey damages for injury
the person of the plaintiff caused bhe defendants negligence
similar motion denied the ground that the court had
power order the plaintiff subject himself to examna-
ton against his will although there New Jersey
authorizing it. The court held that the applied trials
at law in United States Sec 721 Revised
Statutes provided that he laws of the several States except
where the Constitution treaties statutes of the United States
otherwise require provide shall be regarded rules of de
con in trials law of the United States
in cases in which they apply saying "Thre claim made
that the statute violates the Federal Constitution and are
of opinion that such claim would have foundation if
made"
Assuming but only the purpose of this case that under
in tha ba
on this court of the opinion that does apply the
circumstances here shown If the plaintiff wronged by the
order was because of the justabe invasion of his person
which it authorized but its sole object obtain evidence
of his physical condition As the evidence be obtained
in the same proposed by the plaintiff he not in
fact harmed thereby That illegal method of obtaining evil
unuca unann 10 IL