Lyon v. Manhattan Ry. Co.

The complaint in this action alleges that in the month of October, 1892, the plaintiff, a young girl then under age, was a passenger upon one of the defendant’s trains, and that she was seriously injured by reason of a. collision, such injury affecting the spinal column and whole nervous system. These allegations were put in issue by the answer. The defendant obtained an order from one of the judges of the court in which the action was pending, directing the plaintiff to appear before a referee named in the order, at her residence, at a date designated, and then and there submit to a physical examination in respect to the nature and extent of the injuries claimed, to be conducted by two medical experts named, in their presence, and in the presence of such women as she might desire to* have present, but not in the immediate presence of the referee, unless the plaintiff should so elect.

The General Term has reversed this order, and this' appeal brings the questions here for review. The ground upon which the order was reversed is that the defendant was not entitled to an order for such an examination,,

On the argument before us in support of this reversal, the learned counsel for the plaintiff does not rest the case wholly upon the reasons given by the General Term, but attacks the statute as in conflict with the Federal and State Constitutions. He insists that such conflict arises from the fact that the plaintiff is required, as a condition of prosecuting her action in the courts, to expose her person against her will; that the statute in effect deprives her of the sacredness and privacy of her own person, and of her liberty and natural rights and the equal protection of the laws. The argument, though perhaps novel, is not without interest on account of the ideas advanced and the manner of their presentation. In the view we take of the questions involved in the appeal, it will not be necessary to follow the discussion. The statute enacts a rule of procedure, the purpose of which is the discovery of'the truth in respect of certain allegations which the plaintiff has presented for judicial investigation in the courts of justice. It prescribes a method of aiding the court and jury in the correct determination of an issue of fact raised hy the pleadings, and, as it seems to me, does not violate any of the express or implied restraints upon legislative power to be found in the fundamental law.

But, in regard to the meaning and construction of the statute, I think the court below was entirely correct. . The general purpose of the enactment was to change a rule of the common law which had recently been asserted by the highest court and by this court (Union Pacific Railway Co. v. Botsford, 141 U. S. 250 ; McQuigan v. Delaware, etc., Ry. Co., 127 N. Y. 50 ).

It is not necessary in this case to insist that the statute should be subjected to a strict construction, but certainly it ought to receive a construction that would make it fair

But the most serious objection to the defendant’s construction is, that under it, it would be utterly impossible to attain the end which the Legislature had in view, and it would, in fact, defeat every practical and useful object sought to be accomplished. The section, as amended,, provides that the examination shall be had before the judge or a referee, and a referee was actually appointed in. the order and the plaintiff directed to appear before him.. For what purpose ? If the defendant’s construction be-correct, he could not administer an oath to anyone, nor ask a single question, nor make any report of the proceeding. He could not even be present at the examination unless the plaintiff required it. The plaintiff might stand mute, and no one could compel her to answer a single question put by the medical experts, or anyone else. The experts are not required to reduce anything to writing, or make any report to the court, and no provision is-made for a record by anyone. All the defendant can get from the proceeding upon this construction is an opportunity to have two physicians inspect the plaintiff’s person as to any external marks or symptoms of injury or disease, for the purpose of enabling them to testify at the trial, it may be years afterwards. The defendant’s counsel cannot even know- in advance of the trial what testimony the experts can give, whether for or against him, unless, after an appointment by the court, they should volunteer to disclose to him the result of their observation, and this might not be regarded as entirely

Moreover, how is it possible for medical experts to make a physical examination in a case like this, or, indeed, in any case, by merely observing the external marks or indications of personal injury or disease? The term itself implies not only such observation, but an inquiry by means of questions and answers as to the cause, nature, character and extent of the disability. Mere external appearances are, in themselves, of no consequence unless-identified and connected with the accident as the cause, and hence, disclosures such as ordinarily occur between patient and physician must necessarily accompany the inspection of the injured parts. It is clear, I think, that such an examination as the statute contemplates can never be obtained under the defendant’s construction. It must be held that the Legislature intended to enact some useful and practical rule in the administration of justice, that would promote the discovery of truth and not to do a vain thing.

In order to reach this simple and just result,'all we need do is to read the amendment as a part only of the general scheme prescribed by the Code for the examination of parties before trial. In order to give even color to the other view it must be detached from the context and from all its surroundings, and read as if it stood alone, in disregard of settled rules of construction. Not only that, but we must reject provisions of the same section, of the plainest import, as wholly inapplicable to this particular examination. The statute has in terms provided that the physical examination shall be procured in the same way and as part of an.

The order appealed from should be affirmed, with costs.

All the judges concurred except Earl, Finch and Bartlett, JJ., dissenting.

Order affirmed.