98 N.Y.S. 186 | N.Y. App. Div. | 1906
Lead Opinion
We all agree that the order appealed from should be modified. There is, however, a division among us respecting the examining
Judge O’Brien, in the case of Lyon v. Manhattan R. Co. (142 N. Y. 298), quotes from the opinion of Mr. Justice Gray delivered in the Supreme Court of the United States in the case of Union Pacific Railway Co. v. Botsford (141 U. S. 250) the following: “ The inviolability of the person is as much inyaded by a compulsory stripping and exposure as, by a blow. To compel any one, especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault and a trespass.”
While section 873 of the Code has changed this rule of the common law, this change should not be extended beyond a -fair and
The order appealed from should be modified by (1) striking out the provision for the oral examination of the physicians and surgeons, and (2) by striking out the entire provision limiting the examination of the plaintiff under oath and inserting in place thereof the following: “ Ordered, that the examination of the plaintiff under oath be limited to inquiries as to the nature and extent of the injuries complained of and the place where and the peculiar manner in which the injuries were received, so far as necessary to enable the defendant to ascertain the nature and extent of Such injuries; ” and as so modified the order is affirmed, without costs of this appeal to either party.
All concurred, except Williams and Hash, JJ., who dissented in an opinion by Williams, J.
Dissenting Opinion
The order appealed from should be modified by (1) striking out the provision for taking the examination of the physicians and surgeons ; (2) striking out the names of the examining physicians and surgeons, Emma Stevens Jamison and Mrs. W. B. Proctor, andinserting in place thereof the names of those in the order originally made, George C. McHett, Philo L. Alden and Jennie Lee Kellogg; (3) by striking out the 'whole provision limiting the examination of the plaintiff under oath, and inserting in place thereof the following : “ Ordered, That the examination of the plaintiff, under oath, be limited to inquiries as to the nature and extent of the injuries complained of, and the place where and the peculiar manner in which the injuries were received,” and as so modified the order should be affirmed, without costs.
1. As to the first amendment, there is apparently no controversy. The physicians and surgeons should not be examined before, or their evidence taken by, the referee. Apparently this provision was p
2. As to the second amendment, the change of physicians and surgeons appointed to make the physical examination of tlie plaintiff was: evidently made Upon the ground that the plaintiff was entitled to have the examination made solely by physicians or surgeons of her own-sex. Two of .the persons originally.appointed were men, and one a woman. The county judge erroneously construed the section in this respect. 'She was entitled merely to have the examination ~before, not hy, physicians or surgeons of- her own sex. In addition to appointing ong woman as' an examiner, the original order provided- that the plaintiff might have such women present as .she chose, and in the order-appealed from it was -further provided that the plaintiff might have two physicians and surgeons present of her .own selection. The plaintiff’s lights in this respect were fully protected without changing, the examining physicians and surgeons entirely so that all should be Women. Tio personal objection was made to the three named in the- original order, . except as to their-sex- That order was made ex parte, and we assume the persons named were suggested by the defendant-as such physicians and surgeons as it desired to use as witnesses on the- trial, and to better qualify.them as such witnesses. While the county judge had a discretion as to the persons to be appointed, lie should have treated the defendant fairly and not put it at a disadvantage. The plaintiff could have examination's made whenever she saw fit, and by any ^physician or surgeon she might select. Th‘e order appealed from provides-that she may have two physicians or surgeons of her-own selection present at the examination. It seems to us the defendant should be permitted to have its own physicians or surgeons, the persons it would rely upon, to aid it in the trial, make the examination, providing they are reputable and not personally objectionable to the plaintiff.' A defendant in a negligence action should be -enabled, within reasonable limits, to protect- itself against . any unfounded claim as to.the extent of the injuries received in an - accident. It may turn out that’the claim as to such injuries is well founded, and if so the defendant will be entirely satisfied-, but if it is ’discovered through the medium of the examination and the assistance of the physicians and surgeons of the defendant, that the claim
3. As to the third amendment, there can be no doubt that the provisions inserted in the order should .be stricken out. They are all wrong.in form and substance. "The original order was unlimited as to the matters about which the plaintiff might be examined "under oath within the issues raised by the pleadings or the allega-' tions in the complaint. The county judge had power to leave the > scope of the examination unrestricted, but wé are inclined in this particular case to think there should be some limitation, and that the examination should not extend to the issues of negligence and contributory negligence, but should only relate to the question" of the extent of the injuries received by the plaintiff in the accident. The language used by ns would accomplish this purpose, and, in order that no technical objection may be raised before the referee, we have said the plaintiff might be inquired of as to the place where the accident occurred and the peculiar manner in which the injuries were received. The place should be reasonably identified and the inquiry made as to what caused the fall, how plaintiff came to fall, the peculiar manner of it. It is said that the claim and the plaintiff’s complaint cover these details, and, therefore, her evidence in connection with her proposed examination is not necessary. While she may be bound, perhaps, by her claim and complaint, the defend
"We conclude^ therefore, the order should be amended as suggested 'and .then affirmed.
Concurrence Opinion
Order modified- by (1) striking out the provision for the oral examination of the physicians and surgeons, and (2) by striking out the entire provision limiting the examination of the plaintiff under oath, and inserting, in place thereof’ the following :• Ordered, that the examination of the plaintiff under oath -be limited .to 'inquiries -as to the nature and extent of the injuries complained of and the place where and the peculiar manner in which the injuries were received, so far as necessary to enable the defendant to ascertain the nature and extent of such injuries, and as so modified the order -is affirmed, without costs of this appeal to either party.