Lyon v. Manhattan Railway 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 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 the 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 except at the time of granting one for her examination as a witness or a party before the trial, and that a separate physical examination alone is not authorized. 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 interferes with the sacredness and privacy of her own person, and deprives her of her liberty and natural rights and the equal protection of the laws. The argument, though perhaps novel, and subject to the objection that it seeks to push a principle to extremes, 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 by 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

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 and reasonable in its operation. By chapter 721 of the Laws of 1893, § 873 of the Code of Civil Procedure was amended by inserting the following provision in the middle of that section:

“ In every action to recover damages for personal injuries, the court or judge, in granting an order for the examination of the plaintiff before trial, may, if the defendant apply therefor, direct that the plaintiff submit to a physical examination by one or more physicians or surgeons to be designated by the court or judge, and such examination shall be had and made under such restrictions and directions as to the court or judge shall seem proper.

“ In every action brought to recover damages for personal injuries, where the defendant shall present to the court' or judge satisfactory evidence that he is ignorant of the nature and extent of the injuries complained of, the court or judge shall order that such physical examination be made.”

The learned counsel for the plaintiff contends that under the section as now amended, the physical examination is not authorized apart from or independent of the examination before trial, while the learned counsel for the defendant contends that the second clause of the amendment provides for a mere physical examination, distinct and apart from the other words of the amendment, and from the preceding or subsequent sections of the Code. In other words, he separates this clause from the rest of the section and from the other sections relating to examinations of parties, and insists that it contains within itself everything necessary to its execution as an independent enactment. I take it to be a settled rule of statutory construction that an original statute with all its amendments must be read together and viewed as one act passed at the time. Goldman v. Kennedy, 49 Hun, 157 ; 17 St. Rep. 433 . No part of the original or the amendment is to be held inoperative if they can all be made to stand and work together. I assume that had § 873 as now amended been originally enacted in its present form, no one would claim that it should then receive the construction now claimed in behalf of the defendant, and yet we must read it and the other sections on the same subject as if they had passed in the present form at the same time.

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 in this case 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 any one, or ask a single

Moreover, how is it possible for medical experts to make a physical examination in a case like this, or indeed in most cases, by merely observing the external marks or indications of personal injury or diseases? 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 to 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. We must reject provisions of the same section, and other sections on the same subject, 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 examination of the party before trial, and in that way only and by conforming to the general provisions of law on the subject can the object and purpose of the amendment ever be attained. This construction gives effect to every word of the section as amended,

The order appealed from should be affirmed, with costs.

All concur, except Earl, Eiítoh and Bártlett, JJ., dissenting.

Order affirmed.