p. 379was intended to be an investigation independent of the then proceeding taking of testimony, and did not, in its form or substance, indicate otherwise than that the physician would go to the witness on the stand, and make such an examination as a physician would judge to be right and sufficient, involving probably questions to the witness, that there was no error in the refusal.
Before Sedgwick, Oh. J., and Van Vorst, J.Decided December 7, 1885.Appeal by defendant from judgment entered upon verdict of jury and from an order denying motion for new trial made upon the minutes.
The action was for damages to plaintiff, for injuries to her received in falling from a car of defendant, and caused, as alleged, by the negligence of defendant’s servant. Further facts appear in the opinion.
D. M. Porter, attorney and of counsel for appellant, argued:
After the plaintiff had completed her testimonyin chief, and at the end of her cross-examination, but before the defendant’s counsel had relinquished his right to further cross-examination, the following took place : Counsel for the defendant asked permission to have Dr. Banney, a physician in attendance on the part of the defendant, examine the plaintiff’s arm. The court refused the permission, and defendant’s counsel excepted. The refusal was error. The plaintiff had testified that she was still suffering ; that her wrist was inflamed ; her conduct in respect to her alleged injury had been very suspicious ; she had this evidence in her possession — that is, whether her wrist was then inflamed; and there would be no immodesty in its production (any more than if she claimed her face had been injured, and covered it with her vail), and the court was bound to require its production, as much as if she had had a paper containing competent evidence bearing upon the merits, and refused to produce it while it was in her possession on the witness stand. There was no other objection taken, except that
p. 380it was too late, and this waived all others, if any other there can be which does not appear. The contest has not been whether a party can be compelled to exhibit an alleged injury at the trial, but whether it could be compelled before trial; nor is it necessary to decide whether an immodest exposure of the person could be ordered, because there is no such question presented on this appeal.The cases of Mulhado v. Brooklyn City R. Co., 30 N. Y. 370 ; Hiller v. Village of Sharon Springs, 28 Hun, 344 ; State v. Garrett, 71 N. C. 85 ; Commonwealth v. Twitchell, 1 Brews. Penn. 551, sustain the position that this ruling was error.Chauncey Shaffer, attorney, and of counsel for respondent, argued:
The court properly refused the permission asked for by defendant to have Dr. Banney, a physician in attendance on the part of the defendant, examine the plaintiff’s arm. 1. The court had no just right to grant a physical examination (Williams v. Phillips, N. Y. Com. Pleas, Law Bull. June '79, p. 62). 2. To say the least, it was a matter resting in the discretion of the presiding judge ; and he wisely exercised that discretion (Reeves v. Prospect Park & Coney Island R. R. Co. [October, 1879], 1 Lato Bull. 91).
The. plaintiff was a witness on her own behalf. At the end of her cross-examination, the counsel for defendant- asked permission to have Dr. Banney, a physician in attendance on the part of defendant, examine the plaintiff’s arm. The plaintiff’s counsel objected, on the ground that the application was too late. The court refused the permission or denied the application, because, if the defendant had a right to such an examination, the defendant should have applied for it before that time.
The court, from the nature of its decision, must have understood that the examination, for which permission was asked, was intended to be an investigation by the physician, to-be made by him independently of the then
p. 381proceeding talcing of testimony. This understanding agreed with the form of the request. The request did not in its form or substance indicate otherwise than that the physician would go to the witness when on the stand, and malee such an examination as a physician would judge to be right and sufficient, involving, probably, questions to the witness. It is unnecessary to give reasons for holding that such an examination is not a part of the trial of the issues before a jury, and that it is too late to apply for it after the trial has gone so far as it had in this instance— if, which is doubtful, the defendant would have a right to such an examination at any time.
The defendant might have asked the physician to take a position near the witness’ stand, and at which he could observe the arm of the witness if she should exhibit it in response to questions, and the counsel might have asked her to show her arm, and then put questions such as were proper, under the control of the court, for the information of a physician whose opinion was about to be obtained when called as a witness. This would have been more analogous to the case of Mulhado v. Brooklyn City R. Co. ( 30 N. Y. 370 ), than the present case. If such a proceeding were taken, the points would be whether the questions were admissible and whether the physician should be allowed to take or keep the position near the witness. Anything more than this would not be permissible before the jury. The physician would not be under oath, and if he should do or say anything that would bias the mind of the jury, the plaintiff’s rights would be infringed. It is not proper now to decide more than is necessary to determine the nature of the exception in this case. It does not call for a reversal of the judgment.
The other exceptions have been examined, as well as the claim that the damages are excessive: They must be held to be insufficient.
Judgment affirmed, with costs.
Van Vorst, J., concurred.