76 A.D. 351 | N.Y. App. Div. | 1902
The complaint in this action, brought to recover damages for a personal injury alleged to have been sustained by the plaintiff while a passenger on one of the defendant’s electric cars in Richmond county, was served on the 17th day of August, 1899. On the 31st day of ■October in the same year an order of the. Special Term was made for the personal and physical examination of the plaintiff before trial, as provided by section 873 of the Code of Civil Procedure, Upon the service of this order plaintiff procured an order to show. cause why said order “ should not be modified so as to confine the examination of the plaintiff to an examination of her person by a female physician without the presence of any Other parties except the physician for the plaintiff.” Upon the return day of the last order, plaintiff’s attorney stipulated in open court that defendant might have a physical examination of the plaintiff by a female physician at her residence, and the order previously made was thereupon, by consent of the parties,, vacated. On the 18th day of November, 1899, pursuant to the said stipulation, Dr. Sarah A. Clock, defendant’s physician, in the presence of Dr. Pocock, plaintiff’s physician, examined plaintiff for a length of time necessary to make a complete and proper medical examination, and on the 4th of June, 1901, the case came to trial, Dr. Clock testifying as an expert witness fully to plaintiff’s condition at the time of her examination, and to the fact that she was allowed every facility for making such examination. At the same trial plaintiff was upon the stand as a witness and testified upon direct and cross-examination as to the nature and extent of her injuries. In a like' manner Dr. Pocock, plaintiff’s family physician, and Dr. Stearns, an expert, testified to the injuries and the symptoms of the plaintiff. The trial resulted in a verdict in favor of the plaintiff, which, upon appeal, was reversed Upon an error in the charge to the jury. The action was retried on the 6th day of December, 1901, resulting in á dismissal of plaintiff’s complaint. Dr. Clock again testified upon this trial, being examined without objection, and plaintiff was exam
We are clearly of opinion that the defendant, under the circumstances disclosed by the papers before us, is not entitled to this examination. The order which the plaintiff sought to have vacated, and which is the one that is practically involved in this appeal, appoints Dr. Mary Fleckels as the physician who is to examine the plaintiff, although it appears by the papers before; us that Dr. Clock, who examined the plaintiff under a stipulation, and who has twice testified as a witness in the case, is still living, and no suggestion is made that she is not available as a witness. It is true, of course, that the statute contemplates the appointment of a physician by the court, but where the defendant has waived this right, and a physician of its own nomination has been permitted to examine the plaintiff, and has testified without objection, it may not properly discard such testimony and ask the court to permit an entirely new examination. The provisions of the Code of Civil Procedure in reference to examinations before trial were intended as an extension of the privileges of defendants in actions for personal injuries, but the rule is well settled that a party may waive a rule of law, or a ■ statute, or even a constitutional provision enacted for his benefit or protection, where it is exclusively a matter of private right, and no considerations of public morals are involved, and having once done so he cannot subsequently invoke its protection. (Mayor, etc., of New York v. M. R. Co., 143 N. Y. 1, 26, and authorities there
• The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to set aside the order for the second examination should be granted, with costs.
All concurred.
Order reversed, with ten ■ dollars costs and disbursements, and motion to set aside the order for the second examination granted, with costs.