Potter v. Village of Hammondsport

We all agree that the order appealed from should be modified. There is, however, a division among us respecting the ex

1. No good reason exists, so far as the record discloses, for interfering with the judgment and discretion of the county judge in that regard, and we might well rest our decision upon that ground.

2. It is, however, contended that the county judge made this change because he thought the plaintiff had a legal right to have the examination made by physicians of her own sex. Assuming that to be true, which seems quite probable, we are still of the opinion that the county judge was right. We think the provisions of section 873 of the Code of Civil Procedure, which provides for the physical examination of a plaintiff at the instance of the adverse party, entitles a female to have the examination by physicians of her own sex, and that the phrase, “before physicians or surgeons of her own sex,” means that the examination shall be made by them, and not merely in their presence. We cannot assent to the view that it was ever intended that a woman should be compelled to expose her person to a physical examination by physicians and surgeons not of her own sex or selection. We are not called upon to give a construction to this provision so literal as to permit this to be done. The information so acquired by the examining physician is not gained under the ban of secrecy, for she does not stand in the confidential relation of patient to the examining physician. Judge O’Brien, in the case of Lyon v. Manhattan R. Co., 142 N. Y. 298 , 37 N. E. 113 , 25 L. R. A. 402 , quotes from the opinion of Mr. Justice Gray delivered in the Supreme Court of the United States in the case of Union Pacific Ry. Co. v. Botsford, 141 U. S. 250 , 11 Sup. Ct. 1000 , 35 L. Ed. 734 , the following:

“The inviolability of the person is as much invaded 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 of Civil Procedure has changed this rule of the common law, this change should not be extended beyond a fair and reasonable interpretation of the statute which makes this innovation. Where a woman is compelled to submit to a physical examination under the provisions of this section, we think she has the right to require such examination to be made by physicians of her own sex. This view to us seems reasonable, and does no violence to the language of the statute.

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 the peculiar manner in which the injuries were re

All concur, except WILLIAMS and NASH, JJ., who dissent.

(dissenting). 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 W. B. Proctor, and inserting in place thereof the names of those in the order originally made, George C. McNett, 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 would not be examined before, or their evidence taken by, the referee. Apparently this provision was put in the order through inadvertence or a misapprehension of the provisions of section 873 of the Code of Civil Procedure.

2. As to the second amendment, the change of physicians and surgeons appointed to make the physical examination of the 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 by, physicians or surgeons of her own sex. In addition to appointing one 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 rights in this respect were fully protected, without changing the examining physicians and surgeons entirely, so that all should be women. No 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, he should have treated the defendant fairly, and not put it at a disadvantage. The plaintiff could have examinations made whenever she saw fit and by any physician or surgeon she might select. The 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

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 allegations in the complaint. The county judge had power to leave the scope of the examination unrestricted, but we 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 us should 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 defendant is not bound or foreclosed thereby; and so far as these things bear upon the extent of the injuries in the judgment of the physicians and surgeons the defendant should have the right thereto in connection with the physical examination. Our intention is not to permit an examination of the plaintiff, under oath, as to matters relating purely and only to the issues of negligence and contributory negligence. The !real, ultimate object is to acquire information as to such personal injuries as were caused by, and resulted from, the accident; and to this end the limitation is as specific as we could safely make it. Merely

We conclude, therefore, the order should be amended as suggested, and then affirmed.

NASH, J., concurs.