Robert L. SCHLAGENHAUF, Petitioner, v. Cale J. HOLDER, United States District Judge for the Southern District of Indiana, Respondent.
No. 14103.
United States Court of Appeals Seventh Circuit.
July 23, 1963.
The complaint charges that defendants fraudulently caused Roach, Jr., and the corporation to breach the terms and conditions of the contract and caused written consents to sale of the stock and waivers of other conditions to be obtained from plaintiff by fraudulent means. This cause of action is a claim based on fraud and malicious interference with contract and belongs to plaintiff, not in any derivative way, but as a person directly injured. It did not accrue or belong to the corporation before reorganization, an essential element underlying the trustees’ right to maintain suit to recover any loss plaintiff may have suffered because of this conduct. Nor is it a suit against the bankrupt corporation for breach of contract that would have to be maintained in the reorganization court.
As the district court quite properly held, plaintiff may not maintain, in the court below, claims against the bankrupt corporation or claims that properly belong to the bankrupt. See Gochenour v. George & Francis Ball Foundation, 35 F.Supp. 508 (S.D.Ind.1940), aff‘d Gochenour v. George & Frances Ball Foundation, 117 F.2d 259 (7th Cir. 1941), cert denied, 313 U.S. 566, 61 S. Ct. 942, 85 L.Ed. 1526 (1941); Gochenour v. Cleveland Terminals Bldg. Co., 118 F.2d 89 (6th Cir. 1941). Any trial in the district court upon the complaint as now drafted should be limited to the cause of action personal to plaintiff as outlined above. Such clarification as may be necessary to accomplish this result is left to the discretion of the district court by appropriate pre-trial procedures.
Reversed and remanded.
SWAN, Circuit Judge (concurring in result).
I concur in the result because I believe the plaintiff should be given an opportunity to amend the complaint, even though no request to amend was made. Since federal jurisdiction exists only by reason of diversity of citizenship, the elements of fraud are to be determined by state law. 2 Moore Federal Practice, Par. 9.03. Reno v. Bull, 226 N.Y. 546, 124 N.E. 144, sets out five elements which must be alleged and proved. Merely conclusionary allegations of fraud will not suffice. I think amendment is necessary before the case goes to trial.
Richard W. Yarling, Indianapolis, Ind., for petitioner.
Erle A. Kightlinger, Indianapolis, Ind., for respondent.
Before KILEY and SWYGERT, Circuit Judges, and GRANT, District Judge.
SWYGERT, Circuit Judge.
Because the question is fundamental, going to the court‘s power to require a medical examination of a defendant in a civil action, we directed the district judge to show cause why the writ should not issue. After a response to our order had been filed on behalf of the district
A diagrammatic description of the history of the litigation is presented in order to show how the question arises.
Jennie Markiewicz, John Anthony Markiewicz, Edward Markiewicz (husband and father, respectively, of Jennie and John Anthony), v. The Greyhound Corporation, Robert L. Schlagenhauf, (the driver of the Greyhound bus), Contract Carriers, Inc., Joseph L. McCorkhill, (the driver of Contract Carriers’ truck-tractor), National Lead Company (the owner of the trailer being pulled by Contract Carriers). Diversity action seeking damages for the personal injuries suffered by Jennie and John Anthony Markiewicz, passengers on the Greyhound bus, and for loss of their services sustained by John Markiewicz, all resulting from bus collision with the trailer being pulled by Contract Carriers. The accident occurred July 13, 1962, on U. S. Highway 40 in Hendricks County, Indiana. Complaint was filed July 17, 1962, as amended November 8, 1962.
The Greyhound Corporation, v. Contract Carriers, Joseph. L. McCorkhill, National Lead Company, v. General Motors Corporation (third party defendant). Cross-claim for damages to Greyhound‘s bus.
National Lead Company, v. Greyhound Corporation, Robert L. Schlagenhauf. Cross-claim for damages to National‘s trailer.
After the original complaint had been amended, Greyhound answered and filed its cross-claim. Contract Carriers and McCorkhill also answered the amended complaint.
Contract Carriers and McCorkhill filed a letter, pursuant to the district court‘s order, setting forth the specific allegations relied on in defense of Greyhound‘s cross-claim. Among these allegations is:
“4. The defendant, The Greyhound Corporation, carelessly and negligently employed and caused its driver, Robert L. Schlagenhauf, to operate said bus upon a public highway, although said Robert L. Schlagenhauf was not mentally or physically capable of operating said bus upon a public highway at the time and place when said accident occurred, which fact was known or should have been known to The Greyhound Corporation.”
National Lead also filed its answer to the amended complaint together with an answer to Greyhound‘s cross-claim. One of the defenses asserted to Greyhound‘s
National Lead‘s cross-claim alleged “that the defendant, The Greyhound Corporation acting by and through its said agent * * * and its said employee, [Schlagenhauf] * * * were guilty of carelessness and negligence in one or more of the following particulars: * * * * * * “(8) By permitting said bus to be operated over and upon said public highway by said defendant, Robert L. Schlagenhauf, when both the said Greyhound Corporation and said Robert L. Schlagenhauf knew that the eyes and vision of the said Robert L. Schlagenhauf was (sic) impaired and deficient.”
On February 5, 1963, Contract Carriers, McCorkhill, and National Lead filed a joint petition for an order requiring Robert L. Schlagenhauf to submit to a series of mental and physical examinations. The petitions gave the following reasons for such request:
“(1) The defendant, Robert L. Schlagenhauf, was involved in a similar type accident near the town of Flatrock, Michigan, while driving a motorbus for the defendant, Greyhound Corporation.
(2) The lights of the tractor trailer unit which was struck by the bus driven by the defendant Schlagenhauf, were visible from three-fourths to one-half mile to the rear of said vehicle.
(3) The defendant Schlagenhauf saw red lights ahead of him for a period of ten to fifteen seconds prior to impact and yet did not reduce speed or alter his course.”
The petition further alleged that separate examinations are required by multiple experts because no one expert could examine Schlagenhauf respective to all the conditions which related to his driving ability. In all four examinations were requested.
The district court on February 21, 1963, granted the petition and ordered Schlagenhauf to submit to mental and physical examinations by two named internists, two named ophthalmologists, three named neurologists and two named psychiatrists, despite the fact that only four examinations had been requested.
On March 14, 1963, Contract Carriers, McCorkhill, and National Lead filed supplemental petitions for examinations of Schlagenhauf. These were supplementary to the original petition allegedly because the mental and physical condition of Schlagenhauf became additionally in issue by virtue of National Lead‘s cross-claim filed subsequent to the petition of February 5.
On March 15, 1963, the district court issued an order (which superseded its February order) granting the supplemental petitions and ordering Schlagenhauf to appear before the nine medical experts for psychiatric and physical examinations. This court stayed the orders pending our disposition of the instant petition for writ of mandamus.
We are mindful of the stringent restrictions that have been placed on the issuance of the writ of mandamus, and its limitation to “the exceptional case where there is clear abuse of discretion or ‘usurpation of judicial power’ * * *” Labuy v. Howes Leather, 352 U.S. 249, 257, 77 S.Ct. 309, 314, 1 L.Ed.2d 290 (1957).
In Labuy, the Supreme Court, on certiorari to the Seventh Circuit, in language that we deem pertinent to the instant petition said:
“As this Court pointed out in Los Angeles Brush Corp. v. James, 272 U.S. 701, 706 [47 S.Ct. 286, 71 L.Ed. 481] (1927): ‘* * * [W]here the subject concerns the enforcement of the * * * rules which by law it is the duty of this Court to formulate and put in force,’ mandamus should issue to prevent such action thereunder so palpably improper as to place it beyond the scope of the rule invoked. As was said there at
page 707, were the Court ‘* * * to find that the rules have been practically nullified by a district judge * * * it would not hesitate to restrain [him]. * * *‘” (352 U.S. at 256, 77 S.Ct. at 313).
Certainly the writ is not to be used as a substitute for appeal. Ex parte Fahey, 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947). It should not be availed of to correct mere error in the exercise of conceded judicial power, although it may possibly be used to prevent usurpation of power, if “the lower court is clearly without jurisdiction.” Ward Baking Co. v. Holtzoff, 164 F.2d 34, 36 (2nd Cir. 1947). The writ will not issue to permit this court to exercise the discretion entrusted by law to the district court. Fisher v. Delehant, 250 F.2d 265 (8th Cir. 1959); Goldberg v. Hoffman, 226 F.2d 681 (7th Cir. 1955).
Unless we are prepared to say that the district court was without power to enter the
The Supreme Court in Sibbach v. Wilson & Co., Inc., 312 U.S. 1, 61 S.Ct. 422, 89 L.Ed. 479 (1941), settled the question whether
Sibbach is important because the Court there held that
“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint 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.’ (141 U.S. at 251, 11 S.Ct. at 1001).
* * * * * *
“The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow. To compel any one, and 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; and no order or process, commanding such an exposure or submission, was ever known to the common law in the administration of justice between individuals, except in a very small number of cases, based upon special reasons, and upon ancient practice, coming down from ruder ages, now mostly obsolete in England, and never, so far as we are aware, introduced into this country.” (141 U.S. at 252, 11 S.Ct. at 1001).
Today, in a number of our states, statutes, rules of court, and in some states, decisions, provide procedural techniques for the discovery of the mental and physical condition of a party similar to that provided for in
The fact remains, however, that
It is well to point out that we do not believe Schlagenhauf became a “party” within the meaning of
It should also be pointed out that Schlagenhauf was not a “party” to Greyhound‘s cross-claim merely by reason of his being an agent of Greyhound. The Supreme Court declined to adopt a proposed amendment to
What confronts us then is the question of the power of the district court to order, on the application of National Lead, mental and physical examinations of petitioner who became a party defendant by virtue of National Lead‘s cross-claim. In this regard we must answer the rhetorical question posed in 3 Ohlingers Federal Practice (Rev.Ed.) 610-:
“Finally, in Sibbach v. Wilson & Co. (1941), 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479, by a five to four decision rendered on January 13, 1941, the Supreme Court declared that the rule is procedural in character and that it invades no ‘substantive’ right within the terms of the Enabling Act, as distinguished from a right which is merely ‘substantial’ or ‘important‘. To the suggestion that the rule offends the important right to freedom from invasion of the person the court replies that it ‘* * * ignores the fact that a litigant need not resort to the federal courts unless willing to comply with the rule. * * *’
“This does not, however, answer the point; what of the litigant who does not resort to a federal court, has no intention of resorting to it, and does not wish to resort to it — a litigant, for instance, whose case is removed from a state court to a federal court, or who is made a defendant in a federal court against his will — is he exempted from the operation of the rule? The fact remains that Congress has conferred on the federal courts no power to make an order requiring a party to submit to a physical examination.”
In the sense that
In order that a federal district court may properly exercise its power to require a mental or physical examination of a party,
The traditional respect for the inviolability of one‘s person that our society has consistently fostered — the concern for the individual‘s rights enunciated by the Supreme Court in the Botsford case, must be recognized. Mere lip service to the requirements of “in controversy” and “good cause” in
Here the district court had before it a situation involving a catastrophic mo-
We believe that the several allegations of negligence made in this case together with the additional matters brought to the attention of the district judge relating to the circumstances of the collision are so intertwined with the mental and physical condition of petitioner that that condition may be said to be in controversy in the action for damages asserted by National Lead in its cross-claim.
Although the “in controversy” requirement of
In summary, we conclude that a federal district court has the power under
The petition is denied.
KILEY, Circuit Judge (dissenting).
I respectfully dissent.
I agree with the majority opinion that petitioner is a “party” subject to
But my point of departure with the majority opinion is with respect to the “good cause” requirement of the rule.
In persuasive dictum in Guilford National Bank of Greensboro v. Southern Ry. Co., 297 F.2d 921, 924 (4th Cir. 1962), Judge Sobeloff said:
“There appear to be adequate policy reasons for imposing the good cause requirement in Rules 34 and 35. Under Rule 35, the invasion of the individual‘s privacy by a physical or mental examination is so serious that a strict standard of good cause, supervised by the district courts, is manifestly appropriate.”
The dictum expresses my view.
When the original order was entered, petitioner was not a party, and was made a party only by the later cross-complaint of National Lead Company. The second order issued upon motions merely stating that petitioner was involved in a similar accident while driving a Greyhound bus, that in the instant collision the lights of the tractor-trailer unit were visible from three-fourths to one-half mile, that petitioner saw the red lights of the truck for a period of ten to fifteen seconds prior to impact, and neither reduced his speed nor altered his course; and that unless the examinations were ordered,
No hearing was held to inquire into these statements so as to form a sound basis for subjecting petitioner to the examinations. A brief hearing might have indicated that there is an adequate alternate method of making proof of petitioner‘s physical and mental condition; and that the examinations sought now would not shed light on his condition at the time of the accident more than a year ago. On the other hand, the hearing might indicate substantial merit in the grounds urged for the examination order. In either event, the inquiry would establish an adequate basis for exercising the court‘s discretion as to whether or not the order ought to issue. The record here discloses no adequate basis for discretion.
This court will issue a writ of mandamus where it finds gross error amounting to an abuse of discretion, as in Chicago, Rock Island and Pacific Railroad Co. v. Igoe, 220 F.2d 299, 304 (7th Cir. 1955). In my view, on what the district court had before it, there was a gross error amounting to an abuse of discretion committed with respect to ordering the nine examinations, particularly the mental tests.
It is clear from reading Professor Wigmore that he is talking about personal injury cases in 8 Wigmore, Evidence § 2220(F) (McNaughton rev. 1961), and the need for preventing fraud through concealment of the true nature of one‘s injury. He quotes at length from Justice Schaefer‘s opinion in People ex rel. Noren v. Dempsey, 10 Ill.2d 288, 292-295, 139 N.E.2d 780 (1957), where the Justice is speaking about a plaintiff in a personal injury case. Justice Schaefer in that case says that a person claiming damages puts his physical condition in issue and it becomes a fact to be proved, like the fact of the impact in that case. Petitioner did not put his physical and mental condition in issue in the case at bar. These authorities do not compel denial of the writ.
It seems to me the constitutional right of personal privacy should not be transgressed in search for truth under