PHYSICAL EXAMINATION

The question as to whether, and under what circumstances, courts will permit the phy- sical examination of litigants and of per- sons accused of crime, and also of property in litigation, has been much mooted. A physical examination of a woman under the writ of de ventre inspiciendo was known to the common law under special circumstances. See JURY OF WOMEN. This early practice has been urged as a precedent for permitting a physical exami- nation in certain civil and criminal cases. In Union Pacific R. Co. v. Bottsford, 141 U. S. 250, the question was the right of a court of the United States to order a sur- gical examination of the plaintiff, in an action of tort. Mr. Justice Gray referred to the common-law writ of de ventre inspi- ciendo in capital cases, and also in civil cases involving the rightful succession to property of a decedent against fraudulent claims of bastards, and said that the learn- ing and research of counsel for the plain- tiff in error (John F. Dillon) had "failed to produce an instance of its even having been considered in any part of the United States as suited to the habits and condi- tions of the people." He added that "so far as the books within our reach show, no order to inspect the body in a personal ac- tion appears to have been made or even moved for, in any of the English courts of common law, at any period of their his- tory." The ruling of the court below, re- fusing such an examination, was sustained. See, also, 129 Ind. 401; 129 N. Y. 50; 80 Fed. Rep. 278; 25 C. C. A. 413; 102 III. 272. It appears however that such an order was moved for and made by a judge at chambers, not purporting to be by consent, though in fact unopposed, and of which Cockburn, C. J., said, "the order for such examination was clearly ultra vires;" 46 L. J. 696, "The right to one's person may be said to be a right of complete immunity, -to be let alone." Cooley, Torts 29. But while it has been held that the de- fendant has no absolute right to have a personal physical examination of the plain-

tiff made, in an action for personal in- juries, yet in the discretion of the court such examination may be made, if essen- tial for the ascertainment of truth or to subserve the ends of justice; 3 Am. St. Rep. 549; 95 Mo. 169; 49 Leg. Int. (Pa.) 434; 13 Med. Leg. Leg. J. 23; 72 Tex. 95; 90 Ala. 71; 2 Dist. R. (Pa.) 825; 34 L. R. A. 207; 96 Mich. 625; 39 W. Va. 86; 82 Ga. 719; 61 Wis. 536; 46 Ark. 275; 29 Kan. 466. In 1865, in New York, it was said that in an action for personal injuries the defend- ant could examine the actual physical con- dition of the plaintiff before trial, and if the plaintiff refused, the defendant might prove the refusal at the trial; 64 Barb. 299. In 1868, in an action in the same state against a physician for personal in- juries resulting from malpractice, it was said that no case involving the right to a physical examination was to be found on the books; but the court permitted the examination, citing as authority proceed- ings in divorce for impotency, mayhem, and the writ de ventre inspiciendo; 52 How. Pr. 334. The supreme court of that state, in an action against a carrier for in- jury to a passenger, overruled this view of the law, holding that in such divorce cases a physical examination was necessary to arrive at the truth, and that the other pro- ceedings were obsolete; 29 Hun 154; 129 N. Y. 50. In a note by the reporter in 52 How. Pr. 334, it is said that there were few cases decisive of the right of physical examination, and he cites: Andrew's Trials 41: 45 How. 216; 1 Brews. (Pa.) 561; 71 N. C. 85; 5 Jones (N. C.) 259. A plaintiff, in an action for personal in- juries alleged to have caused the secretion of albumen and sugar, may be required to produce in court, for analysis, specimens of his urine, accompanied by an affidavit that it was voided by him; the privacy of his person not being thereby invaded; 46 N. E. Rep. (Ind.) 678; 36 L. R. A. 681. It is within the discretion of the court to refuse to require the plaintiff to submit to a physical examination which necessitates the administration of anesthetics; 65 N. W. Rep. (Mich.) 616. In some courts plaintiffs are allowed to exhibit to the jury their injuries, and to perform physical acts showing the nature and extent of their injuries; 47 Ia. 375; 33 Minn. 130; but other courts hold this to be improper, because such evidence cannot be preserved in a bill of exceptions for use in an appellate court; 19 Cent. L. J. 144. In a trial of an action of trespass for as- sault and battery, it is not error to permit the jury to examine with their fingers scars on the plaintiff's head caused by a blow from defendant's pistol; 35 S. W. Rep. (Tex.) 538. A court of equity will not, in a patent case, even if it had the power, require the respondent, claiming under an alleged an- ticipating patent, to perform experiments in the presence of plaintiff's witnesses, ex- cept where so extraordinary a course is necessary; 83 Fed. Rep. 490. In an action for breach of warranty on a sale of a horse, the court has no power to order that the defendant have the privilege of sending a veterinary surgeon into the plaintiff's stable to examine the horse ; 63 N. W. Rep. (Mich.) 993; 95 Mich. 266. In a suit for divorce on the ground of impotence a court has power to compel the partiesto submit to a surgical examina- tion when facts essential to a correct de- cision may thereby be ascertained; 5 Paige 554; 89 Ala. 291; 33 L. J. Mat. 12; in di- vorce proceeding because of malformation of the wife the court made an order for her inspection, but did not require the husband to submit to inspection; 16 Week Rep. 943. The measurement in the presence of the jury of a woman's foot and her leg six inches above the ankle, in a suit for injuries to the foot and ankle, must be permitted by the court when there is a direct conflict as to such measurement by the medical men called by the respective parties, -at least if

the witness herself does not object; 99 Ia. 698; s. c. 34 L. R. A. 208. The better practice seems to be to apply to the party to be examined, before trial, for permission to make the examination, and upon his refusal, to present a motion for leave, by affidavit, showing the refusal, and also the probability that the examin- ation will result in some material disclos- ure. The party applying for the order for examination should also offer to pay the expense of such examination; 82 Ga. 719. In practice, some courts order a private physical examination of a party to be made by a physician, who may then testify in regard thereto at the trial of the cause. A physical examination, if made, must be made by physicians agreed upon by the parties or selected by the court, care being taken to prevent danger to life, pains of body, or any indignity to the person; 47 Ia. 375; 33 Minn. 137; 37 Ohio St. 104. Where an order for physical examina- tion is made, the court will enforce it by refusing to try the cause until it is com- plied with; 7 Co. Ct. Rep. (Pa.) 565: by dismissing the action, or refusing to allow the plaintiff to give evidence to establish his injury; 87 Ohio St. 104; or by striking out and withdrawing from the considera- tion of the jury the allegations relative to his inquiry, or punishing him for contempt; 47 Ia. 375; 33 Minn. 130. A refusal to submit to a physical examination, if the court permit him to prosecute his claim will be very strong evidence against the person refusing; 35 Mo. App. 97; and may be considered by the jury as reflecting on his good faith; 141 U. S. 250. Upon an appeal of mayhem where the issue joined is whether it is mayhem or no mayhem, it will be decided by the court upon inspection with the assistance of surgeons, if desired: 3 Bla. Com. 332. The Stat. 31 & 32 Vict. c. 119, § 26, ex- pressly authorizes any judge of a court in which an action is pending to recover compensation for a railway accident or any person having power to fix such com- pensation, to order an examination of the person injured by a duly qualified medical practitioner named in the order, and not being a witness on either side. the costs to be at the discretion of the judge or court making the order. When an examination has been procured by a railway company under this statute the report is privileged and the plaintiff is not entitled to an order for its production; 43 L. J. Rep. Exch. 150. The act of 1894 in New York provides that, in all actions for personal injuries, the court may, before trial, order the plaintiff to submit to a physical examin- ation " by one or more physicians or sur- geons" under such restrictions as the order may impose; the order must require the person to appeal before the judge or a ref- eree, for the purpose of taking the examin- ation, at a time and place named therein. A woman is entitled to have the examin- ation made by "surgeons of her own sex." In criminal proceedings there is no power to undress and medically examine the person of a prisoner, without his consent, although such examination might further the ends of justice; 13 Cox, C. C. 625. It is error for a court to require a person on trial for murder to exhibit his leg at the place where it was amputated, although a certain material fact may be established thereby 3 Cr. Law Mag. (Ga.) 393; 71 N. C. 85. Where a prisoner refused to make a print of his foot in a pan of soft earth in order that the witnesses for the prosecu- tion might testify as to similarity of such tracks with those found at the scene of the crime, the court said it was optional with the accused, who refused, and upon con- viction a new trial was granted; 5 Baxt. 619; contra, 7 Tex. Civ. App. 245. A woman indicted for the murder of her ille- gitimate child refused to allow physicians selected by the coroner to examine whether she had recently been delivered of a child, and upon being threatened, yielded. The court ruled out the testimony of the physi- cians, saying that such proceedings vio- lated the spirit of the constitution which declares that no person shall, in any crim- inal case, be compelled to be a witness against himself; 45 How. Pr. 216. On the other hand, it has been held not to be error to compel the defendant to ex- hibit tattoo marks on his body, to the ex- istence of which a witness had testified; 14 Nev. 79; 33 Am. Rep. (S. C.) 530; or to compel the accused to make his footprints in an ash heap, and to allow the prosecution to show that they corresponded with those found at the scene of the crime; 7 Тех. Civ. App. 245; or for an officer to compel the accused to put his foot in print found at the place where the crime was commit- ted and at the trial testify to the result of the comparison; 74 N. C. 646; 67 Ga. 76; 26 N. E. (Ind.) 138. See JURY OF WOMEN; PRIVACY; VIEW.

The examination of the patient's body with the use of such methods as inspection, palpation, percussion and auscultation.