226 F.2d 74 (9th Cir. 1955), 13610, Fong Sik Leung v. Dulles

Docket Nº:13610.
Citation:226 F.2d 74
Party Name:FONG SIK LEUNG, as Guardian Ad Litem for Fong Gar Hong, Appellant, v. John Foster DULLES, as Secretary of State, Appellee.
Case Date:July 28, 1955
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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226 F.2d 74 (9th Cir. 1955)

FONG SIK LEUNG, as Guardian Ad Litem for Fong Gar Hong, Appellant,


John Foster DULLES, as Secretary of State, Appellee.

No. 13610.

United States Court of Appeals, Ninth Circuit.

July 28, 1955

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Jackson & Hertogs, Joseph S. Hertogs, San Francisco, Cal., for appellant.

Lloyd H. Burke, U.S. Atty., Charles Elmer Collett, Asst. U.S. Atty., San Francisco, Cal., for appellee.

Before DENMAN, Chief Judge, POPE, Circuit Judge, and BOLDT, District judge.

DENMAN, Chief Judge.

Appellant, seeking to establish under 8 U.S.C. § 903, now 8 U.S.C.A. § 1503, that he is an American citizen born in China to an American citizen father, Fong Sik Leung, his guardian ad litem, appeals from a judgment of the district court dismissing his petition. The court relied upon F.R.C.P. 41(b). 1 Its ground of dismissal is the refusal of the guardian ad litem, who so happened to be appellant's alleged father, to submit to a blood test ordered before the case was set for trial, for both the appellant and the guardian under the purported authority of the provisions of F.R.C.P. 35.

The court's order reads:

'Upon motion made pursuant to Rule 35 of Federal Rules of Civil Procedure for Physical examination, including blood grouping tests, of plaintiff and his alleged father, the Court having on the 27th day of August, 1952, made and entered herein an order granting said motion.

'It is ordered that Fong Sik Leung and Fong Gar Hong report to Room No. 108, United States Public Health Hospital, 14th and Lake Streets, San Francisco, California, at 9:00 o'clock A.M., on the 3rd day of September, 1952, for said physical examination, including blood grouping tests.'

The order fails to name any physician or physicians by whom the tests are to be made as required by F.R.C.P. 35(a), a matter considered infra.

The appellant submitted to the tests. The guardian personally did not report to the hospital and, on advice of counsel, refused to comply with the order.

I. A suit brought by a minor party petitioner, suing through his guardian ad litem, is not a suit with two parties petitioning.

The petition below better would have been titled by naming first the petitioner and having it read Fong Gar Hong, petitioner, by his guardian ad litem, Fong Sik Leung.

Appellant contends that the court wrongfully dismissed his petition to establish his United States citizenship

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through the paternity of his citizen father, by construing F.R.C.P. 35(a) as making his guardian ad litem, who happened to be his father, a second party petitioning, and dismissing because the guardian refused to obey an order to submit to a blood test. That rule provides:

'Rule 35. Physical and Mental Examination of Persons

'(a) Order for Examination. In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may order him to submit to a physical or mental examination by a physician. The order may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons (physician) by whom it is to be made.' (Emphasis supplied.)

It seems clear that there were not two parties to this 903 proceeding. The child petitioner is the only person seeking relief. The Guardian ad litem seeks none for himself. He is no more than the court's agent to aid the petitioner in seeking that relief. That here he is the child's claimed father is a mere happenstance. The guardian as well might be Patrick Riley born in Cork, Ireland, and recently admitted to citizenship. The fact that a guardian is subject to certain controls of the court no more makes him a party subject to the blood test than it does a party litigant's attorney, whose blood condition may be a relevant fact in the case.

A patent absurdity of the district court's construction of the Act is that, if in the pending litigation the minor attained majority and the guardianship automatically ceased without any act of the guardian, the order for the latter's blood test then could not be made. Such an automatic result is utterly unlike the withdrawal of one of two parties from the action. Only by the legerdemain of the prestidigitator can one have such a 'now you see it and now you don't' result.

The above interpretation is apparent on the fact of Rule 35(a). However, were it otherwise its necessary strict construction would require it.

II. Absent F.R.C.P. 35, a federal court, in purely federal litigation, has no power to compel any one to submit to the procedure ordering a blood test, whether a party or a prospective witness. The rule creating de novo the obligation to submit should be strictly construed.

That such power did not exist to the rule is held by the Supreme Court in Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734. That is a diversity suit for damages for negligence of the railroad causing bodily injury, commenced in the United States Circuit Court for the District of Indiana, a state having no settled law requiring such an examination. The Supreme Court, in holding the federal court had no power to compel Botsford to submit to surgical examination as to the extent of her injuries, stated at page 251, of 141 U.S. at page 1001 of 11 S.Ct., 'No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley, 'The right to one's person may be said to be a right of complete immunity; to be let alone, " and at page 252, of 141 U.S., at page 1001 of 11 S.Ct., 'The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow. To compel any one, and 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; and no order or process, commanding such an exposure or submission, was ever known to the common law in the administration of justice between individuals, except in a very small number of cases, based upon special reasons, and

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upon ancient practice, coming down from ruder ages, now mostly obsolete in England, and never, so far as we are aware, introduced into this country.' Since it is a 'sacred * * * right of every individual to (be) free from all restraint or interference of others, unless by clear and unquestionable authority of law' it is apparent that Rule 35 diminishing that sacred right should be strictly construed.

It is contended that the Botsford decision of 1891 is outmoded and is no longer the law controlling in such purely federal litigation. It cannot be that the widely stated constant increase in both adult and teenage murder and their crimes of rape and sadistic violence have so dulled the minds of the Justices that they no longer consider any such sacred right exists and that what was said of it in the Botsford case is to be forgotten as mere irrelevant twaddle. More recent decisions and the statement of the advisory committee respecting Rule 35 show the contrary.

The Supreme Court in 1900 in Camden, ect., Ry. Co. v. Stetson, 177 U.S. 172, 20 S.Ct. 617, 44 L.Ed. 721, holds the Botsford case is still the law for such federal litigation. There, in a diversity case, a state statute authorized a surgical examination and it was contended the statute did not apply in federal courts and hence the Botsford case made the examination unlawful. The Supreme Court, instead of holding the Botsford case no longer the law, holds that it is but does not apply in a diversity case where there is a state statute for such physical examination.

Again in 1941, the Supreme Court considered the Botsford case in Sibbach v. Wilson & Co., 312 U.S. 1, 11, 655, 61 S.Ct. 422, 85 L.Ed. 479. The question there was whether F.R.C.P. 35 was procedural in character and hence within the power of the Supreme Court to promulgate. If the Botsford case were then no longer the law and, in the absence of Rule 35, the district court had the power to order a physical examination of any one in any case, it is obvious the Court so would have stated. To the contrary, in holding that the rule is procedural, it states at page 11 of 312 U.S., at page 425 of 61 S.Ct., 'In the Botsford case an action to recover for a personal injury suffered in the territory of Utah was instituted in the United States Circuit Court for Indiana, which refused to order a physical examination. This court affirmed, on the ground that no authority for such an order was shown. There was no suggestion that the question was one of substantive law. The court first examines the practice at common law and finds that it never recognized such an order. Then, acknowledging that a statute of the United States authorizing an order of the sort would be valid, the opinion finds there is none. Thus the matter is treated as one of procedure, for Congress has not, if it could, declared by statute the substantive law of a state.'

Furthermore the Advisory Committee on Rules in 1934 recognized the continuing validity of the Botsford case, stating 'In Union Pacific Ry. Co. v. Botsford, 1891, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734, it was held that the court could not order the physical examination of a party in the absence of statutory authority * * *.' and 'Such authority is now found in the present rule (35) made operative by the Act of June 19, 1934, c. 651, U.S.C.A. Title 28, § 2072 * * *.'


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