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suspicion was very slender, he requested suffering and pain to her in body and mind, that cautious and careful inquiry should be made to see whether possession of the property could be traced to S., and that, in view that S. might be quite innocent, the inquiry should be so conducted as not to injure him unless evidence of his guilt could be obtained.

The chief constable sent this letter to B., who, just before S. and his master were leaving Newcastle, told the master privately the contents of it. The master shortly after discharged S. on the ground that he could not have in his employ a person on whom any suspicion of dishonesty had fallen.

Wills, J., at the trial told the jury that the communication was not privileged, and the jury found a verdict for S.

LINDLEY, L.J., and KAY, L.J., held that it was the moral and social duty of B. to inform the master of the suspicion that had fallen upon S., and the occasion was privileged; and, there being no evidence of malice, judgment ought to be entered for the defendant.

LOPES, L.J., was of opinion that B. was not justified, having regard to the very cautious character of the information that he had received, in acting as he had done; that the occasion was not privileged, and the verdict and judgment ought to stand.

UNITED STATES SUPREME COURT,
May 25, 1891.

UNION PACIFIC RY. Co. v. BOTSFORD.* Evidence-Physical Examination of Party. The courts of the United States have no power, in an action for personal injuries, to order before the trial an examination of the body of the injured person.

and in permanent and increasing injuries. Answer, a general denial. Three days before the trial (as appeared by the defendant's bill of exceptions)" the defendant moved the court for an order against the plaintiff, requiring her to submit to a surgical exainination, in the pres ence of her own surgeon and attorneys, if she desired their presence, it being proposed by the defendant that such examination should be made in manner not to expose the person of the plaintiff in any indelicate manner, the defendant at the time informing the court that such examination was necessary to enable a correct diagnosis of the case, and that without such examination the defendant would be without any witnesses as to her condition. The court overruled said motion, and refused to make said order, upon the sole ground that this court had no legal right or power to make and enforce such order." To this ruling and action of the court the defendant duly excepted, and after a trial, at which the plaintiff and other witnesses testified, in her behalf, and which resulted in a verdict and judgment for her in the sum of $10,000, sued out this writ of error.

GRAY, J. The single question presented by this record is whether, in a civil action for an injury to the person, the court, on appli cation of the defendant, and in advance of the trial, may order the plaintiff, without his or her consent, to submit to a surgical examination as to the extent of the injury sued for. We concur with the Circuit Court in holding that it had no legal right or power to make and enforce such an order. No right is held more sacred, or is more carefully guarded by the common law, than the right

In error to the Circuit Court of the United of every individual to the possession and States for the district of Indiana.

control of his own person, free from all reBots-straint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley: "The right to one's person may be said to be a right of complete immunity; to be let alone." Cooley, Torts, 29. For instance, not only wearing apparel, but a watch or a jewel, worn on the person, is for the time being privileged from being taken under distress for rent, or attachment on mesne process or execution for

The original action was by Clara L. ford against the Union Pacific Railway Company for negligence in the construction and care of an upper berth in a sleeping car in which she was a passenger, by reason of which the berth fell upon her head, bruising and wounding her, rupturing the membranes of the brain and spinal cord, and causing a concussion of the same, resulting in great 11 Sup. Ct. Rep. 1000.

debt, or writ of replevin. 3 Bl. Comm. 8; rived from the civil and canon law, as adSunbolf v. Alford, 3 Mees. & W. 248, 253, 254; | ministered in spiritual and ecclesiastical

Mack v. Parks, 8 Gray, 517; Maxham v. Day, courts, not proceeding in any respect accord16 id. 213. The inviolability of the person is ing to the course of the common law. Briggs as much invaded by a compulsory stripping v. Morgan, 2 Hagg. Const. 324; 3 Phillim. and exposure as by a blow. To compel any Ecc. 325; Devanbagh v. Devanbagh, 5 Paige,554; one, and especially a woman, to lay bare the Le Barron v. Le Barron, 35 Vt. 365. The body, or to submit it to the touch of a strang-writ de ventre inspiciendo, to ascertain whether er, without lawful authority, is an indignity, a woman convicted of a capital crime was an assault and a trespass; and no order of quick with child, was allowed by the comprocess commanding such an exposure or mon law, in order to guard against the submission was ever known to the common taking of the life of an unborn child for the law in the administration of justice between crime of the mother. individuals, except in a very small number The only purpose, we believe, for which of cases, based upon special reasons, and upon the like writ was allowed by the common ancient practice, coming down from ruder law, in a matter of civil right, was to protect ages, now mostly obsolete in England, and the rightful succession to the property of a never, so far as we are aware, introduced in- deceased person against fraudulent claims of to this country. In former times the English bastards, when a widow was suspected to courts of common law might, if they saw fit, feign herself with child in order to produce a try by inspection or examination, without suppositious heir to the estate, in which case the aid of a jury, the question of the infancy the heir or devisee might have this writ to or of the identity of a party; or, on an ap-examine whether she was with child or not, peal of mayhem, the issue of mayhem or no and if she was, to keep her under proper remayhem; and, in an action of trespass for straint till delivered. 1 Bl. Comm. 456; Bac. mayhem, or for an atrocious battery, might, Abr. "Bastard, A.” In cases of that class after a verdict for the plaintiff, and on his the writ has been issued in England in quite motion, and upon their own inspection of the recent times. In re Blakemore, 14 L. J. Ch. wound, super visum vulneris, increase the 336. But the learning and research of the damages at their discretion. In each of counsel for the plaintiff in error have failed those exceptional cases, as Blackstone tells to produce an instance of its ever having us, "it is not thought necessary to summon been considered, in any part of the United a jury to decide it," because, "the fact, from States, as suited to the habits and condition its nature, must be evident to the court, of the people. So far as the books within either from ocular demonstration or other our reach show, no order to inspect the body irrefragable proof;" and therefore "the law of a party in a personal action appears to departs from its usual resort, the verdict of have been made, or even moved for, in any twelve men, and relies on the judgment of of the English courts of common law, at any the court alone." The inspection was not period of their history. The most analogous had for the purpose of submitting the result cases in England that have come under our to the jury, but the question was thought too notice are two in the common bench, in each easy of decision to need submission to a jury of which an order for the inspection of a at all. 3 Bl. Comm. 331-333. The authority building was asked for in an action for work of courts of divorce in determining a question and labor done thereon, and was refused for of impotence as affecting the validity of a want of power in the court to make or enforce marriage, to order an inspection by surgeons it. In one of them, decided in 1838, counsel of the person of either party, rests upon the moved for an order that the plaintiff and his interest which the public, as well as the witnesses have a view of the building and an parties, have in the question of upholding or inspection of the work done thereon, and dissolving the marriage state, and upon the stated that the object of the motion was to necessity of such evidence to enable the prevent great expense, to obviate the necescourt to exercise its jurisdiction, and is de- sity of calling a host of surveyors, and to

avoid being considered trespassera. There- thing, for the same purpose, upon the motion upon one of the judges said, "Then you are of the defendant. But the answer to this is asking the court to make an order for you to that any one may expose his body if he commit a trespass;" and Chief Justice Tin- chooses, with a due regard to decency, and dal said: "Suppose the defendants keep the with the permission of the court, but that he door shut; you will come to us to grant an cannot be compelled to do so in a civil action attachment. Could we grant it in such a without his consent. If he unreasonably recase? You had better see if you can find fuses to show his injuries when asked to do any authority to support you, and mention it so, that fact may be considered by the jury to the court again." On a subsequent day as bearing on his good faith, as in any other the counsel stated that he had not been able case of a party declining to produce the best to find any case in point, and therefore took evidence in his power. Clifton v. U. S., 4 nothing by his motion. Newham v. Tate, 1 How. 242; Bryant v. Stilwell, 24 Penn. St. 314; Arn. 244; 6 Scott, 574. In the other case, in Turquand v. Strand Union, above cited. In 1840, the court discharged a similar order, this country the earliest instance of an order saying: "The order, if valid, might, upon for the inspection of the body of the plaintiff disobedience to it, be enforced by attach-in an action for a personal injury appears to ment. Then it is evidently one which a have been in 1868, by a judge of the Superior judge has no power to make. If the party Court of the city of New York in Walsh v. should refuse so reasonable a thing as an in- Sayre, 52 How. Pr. 334, since overruled by spection, it may be a matter of argument be- decisions in General Term in the same State. fore the jury, but the court has no power to Roberts v. Railroad, 29 Hun, 154; Neuman v. enforce it." Turquand v. Strand Union, 8 Railroad,, 50 N. Y. Super. Ct. 412; McSwyny Dowl. 201; 4 Jur. 74. In the English Com- v. Railroad Co., 7 N. Y. Supp. 456. And the mon Law Procedure Act of 1854, enlarging power to make such an order was peremp the powers which the courts had before, and torily denied in 1873 by the Supreme Court authorizing them, on the application of either of Missouri, and in 1882 by the Supreme party, to make an order "for the inspection Court of Illinois. Loyd v. Railroad Co., 53 by the jury, or by himself, or by his witnes- Mo. 509; Parker v. Enslow, 102 Ill. 272. ses of any real or personal property, the in- Within the last fifteen years, indeed, as apspection of which might be material to the pears by the cases cited in the brief of the proper determination of the question in dis- plaintiff in error (Schroeder v. Railway Co., 47 pute," the omission to mention inspection of Iowa, 375; Turnpike Co. v. Baily, 37 Ohio St. the person is significant evidence that no 104; Railroad Co. v. Thul, 29 Kans. 466; such inspection, without consent, was allow- White v. Railway Co., 61 Wis. 536; Hatfield v. ed by the law of England. Tayl. Ev. (6th Railroad Co., 33 Minn. 130; Stuart v. Havens, ed.), 8% 502-504. Even orders for the in- 17 Neb. 211; Owens v. Railroad Co., 95 Mo. spection of documents could not be made by 169; Sibley v. Smith, 46 Ark. 275; Railroad a court of common law, until expressly au- Co. v. Johnson, 72 Tex. 95; Railway Co. v. thorized by statute, except when the docu- Childress, 82 Ga. 719; Railroad Co. v. Hill, ment was counted or pleaded on, or might 90 Ala. 71), a practice to grant such orders be considered as held in trust for the moving has prevailed in the courts of several of the party. Tayl. Ev. 2 1588-1595; 1 Greenl. Western and Southern States, following the Ev., ? 559. lead of the Supreme Court of Iowa in a case decided in 1877. The consideration due to the decisions of those courts has induced us fully to examine, as we have done above, the precedents and analogies on which they rely. Upon mature advisement, we retain our original opinion that such an order has no warrant of law. In the State of Indiana the question appears not to be settled. The

In the case at bar it was argued that the plaintiff in an action for personal injury may be permitted by the court, as in Mulhado v. Railroad. 30 N. Y. 370, to exhibit his wounds to the jury in order to show their nature and extent, and to enable a surgeon to testify on that subject, and therefore may be required by the court to do the same

opinions of its highest court are conflicting and indecisive. Kern v. Bridwell, 119 Ind. 226, 229; Hess v. Lowrey, 122 id. 225, 233: Railroad v. Brunker (Ind.), 26 N. E. Rep. 178. And the only statute which could be supposed to bear upon the question simply authorizes the court to order a view of real or personal property which is the subject of litigation, or of the place in which any material fact occurred. Rev. Stat. Ind., 1881, chap. 2, 538.

court of the State had been removed into the
Circuit Court of the United States.
It was
argued that the object of section 861 of the
Revised Statutes of the United States was to
provide a mode of proof on the trial, and not
to affect this proceeding in the nature of dis-
covery, conducted in accordance with the
practice prevailing in New York. 113 U. S.
717. But this court, speaking by Mr. Justice
Miller, held that this was a matter of evi-
dence, and governed by that section, saying:
"Its purpose is clear to provide a mode of
proof in trials at law, to the exclusion of all
other modes of proof." "It is not according
to common usage to call a party in advance
of the trial at law, and subject him to all the
skill of opposing counsel, to extract some-
thing which he might use or not, as it suits
his purpose." "Every action at law in a
court of the United States must be governed
by the rule or by the exceptions which the
statute provides. There is no place for ex-
ceptions made by State statutes. The court
is not at liberty to adopt them or to require
a party to conform to them. It has no power
to subject a party to such an examination as
this." 113 U. S. 724. So we say here. The

person to examination by a surgeon, without her consent and in advance of the trial, was not according to the common law, to common usage or to the statutes of the United States. The Circuit Court, to adopt the words of Mr. Justice Miller, "has no power to subject a party to such an examination as this."

But this is not a question which is governed by the law or practice of the State in which the trial is had. It depends upon the power of the National courts, under the Constitution and laws of the United States. The Constitution, in the seventh amendment, declares that in all suits at common law, where the value in controversy shall exceed $20, trial by jury shall be preserved. Congress has enacted that "the mode of proof in the trial of actions at common law shall be by oral testimony and examination of witnesses in open court, except as hereinafter provided," and has then made special provision for taking depositions. Rev. Stat., 861, 863 et seq. The only power of discovery or inspection conferred by Congress is to "re-order moved for, subjecting the plaintiff's quire the parties to produce the books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery," and to nonsuit or defanlt a party failing to comply with such an order. Rev. Stat., 724. And the provisions of section 914, by which the practice, pleadings and forms and modes of proceeding in the courts of each State are to be followed in actions at law in the courts of the United States held within the same State, neither restricts nor enlarges the power of these courts to order the examination of parties out of court. Nudd v. Burrows, 91 U. S. 426, 442; Railroad Co. v. Horst, 93 id. 291, 300; Ex parte Fisk, 113 id. 713; Chateaugay Ore & Iron Co., 128 id. 544, 554. In Ex parte Fisk, just cited, the question was whether a statute of New York, permitting a party to an action at law to be examined by his adversary as a witness in advance of the trial, was applicable after an action begun in a

BREWER, J. (dissenting). Mr. Justice Brown and myself dissent from the foregoing opinion. The silence of common-law authorities upon the question in cases of this kind proves little or nothing. The number of actions to recover damages in early days was, compared with later times, limited; and very few of those difficult questions, as to the nature and extent of the injuries, which now form an important part of such litigations, were then presented to the courts. If an examination was asked, doubtless it was conceded without objection, as one of those matters the right to which was beyond dispute. Certainly the power of the courts and of the common-law courts to compel a personal examination was, in many cases,

often exercised, and unchallenged. Indeed lay bare his arm to the inspection of surgeons. wherever the interests of justice seemed It is said that there is a sanctity of the per

son which may not be outraged. We believe that truth and justice are more sacred than any personal consideration; and if in other cases, in the interests of justice, or from considerations of mercy, the courts may, as they often do, require such personal examination, why should they not exercise the same power in cases like this, to prevent wrong and injustice?

to require such an examination, it was ordered. The instances of this are familiar, and in those instances the proceedings were, as a rule, adverse to the party whose examination was ordered. It would be strange, that if the power to order such an examination was conceded in proceedings adverse to the party ordered to submit thereto, it should be denied where the suit is by the party whose examination It is not necessary, nor is it claimed, that is sought. In this country the decisions of the court has power to fine and imprison for the highest courts of the various States are disobedience of such an order. Disobedience conflicting. This is the first time it has been to it is not a matter of contempt. It is an presented to this court, and it is therefore an order like those requiring security for costs. open question. There is here no inquiry as The court never fines or imprisons for disoto the extent to which such an examination bedience thereof. It simply dismisses the may be required, or the conditions under case or stays the trial until the security is which it may be held, or the proper provi- given. So it seems to us that justice requires, sions against oppression or rudeness, nor any and that the court has the power to order, inquiry as to what the court may do for the that a party who voluntarily comes into purpose of enforcing its order. As the ques-court alleging personal injuries, and demandtion is presented, it is only whether the courting damages therefor, should permit disintercan make such an order.

The end of litigation is justice. Knowledge of the truth is essential thereto. It is conceded, and it is a matter of frequent occurrence, that in the trial of suits of this nature the plaintiff may make in the court-room, in the presence of the jury, any not indecent exposure of his person to show the extent of his injuries; and it is conceded, and also a matter of frequent occurrence, that in private he may call his personal friends and his own physicians into a room, and there permit them a full examination of his person, in order that they may testify as to what they see and find. In other words, he may thus disclose the actual facts to the jury if his in terest require, but by this decision, if his interests are against such a disclosure, it cannot be compe led. It seems strange that a plaintiff may, in the presence of a jury, be permitted to roll up his sleeve and disclose on his arm a wound of which he testifies; but when he testifies to the existence of such a wound, the court, though persuaded that he is perjuring himself, cannot require him to roll up his sleeve, and thus make manifest the truth, nor require him, in the interest of truth, to step into an adjoining room, and

ested witnesses to see the nature and extent

of those injuries, in order that the jury may
be informed thereof by other than the plain-
tiff and his friends; and that compliance
with such an order may be enforced by stay-
ing the trial or dismissing the case.

these reasons we dissent.
Judgment affirmed.

For

INSOLVENT NOTICES, ETC.
Quebec Official Gazette, Dec. 19.
Judicial Abandonments.
Joseph Eugène Dion, trader, Robertson Station,
district of Arthabaska, Dec. 17.

Henri Victor Jarry, trader, parish of St. Germain de Grantham, Dec. 10.

Charles Edouard Johnson, trader, village of Warwick, Dec. 11.

Abraham Lilienthal, trader, Montreal, Nov. 30. Victor Portelance & Co., traders, doing business in Lachevrotière, Dec. 17.

Damase Turgeon and François Xavier Corriveau, traders, Beaumont, Dec. 17.

Joseph Lyon Vineberg, trader, Sherbrooke, Dec. 14.
Curators appointed.

Re Blais & Lefebvre.-G. H. Burroughs, Quebec, curator, Dec. 14.

Re Kenneth Campbell & Co., Montreal.-A. W. Stevenson, Montreal, curator, Dec. 17.

Re Geo. A. Crossley, contractor, heretofore doing business in Montreal.-D. Seath, Montreal, curator, Dec. 1.

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