27 F.Supp. 210 (W.D.Mo. 1939), 2297, Wadlow v. Humberd

Docket Nº:2297.
Citation:27 F.Supp. 210
Party Name:WADLOW v. HUMBERD.
Case Date:February 25, 1939
Court:United States District Courts, 8th Circuit, Western District of Missouri
 
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Page 210

27 F.Supp. 210 (W.D.Mo. 1939)

WADLOW

v.

HUMBERD.

No. 2297.

United States District Court, W.D. Missouri

Feb. 25, 1939

Page 211

Perry Hiles and M. E. Newell (of Hiles & Newell), all of Alton, Ill., and Lewis F. Randolph and Nile L. Vermillion (of Randolph & Randolph), all of St. Joseph, Mo., for plaintiff.

H. Don Reynolds (of Loesch, Scofield, Loesch & Burke), all of Chicago, Ill., and Robert A. Brown, Jr. (of Brown, Douglas & Brown), all of St. Joseph, Mo., for defendant.

OTIS, District Judge.

Motion for physical and mental examination under Rule 35, Rules of Civil Procedure for District Courts, 28 U.S.C.A.following section 723c, in a suit for damages for alleged libel in which the defendant was charged with having made certain defamatory statements concerning plaintiff's physical and mental condition.

It is set up in the motion that the physical and mental condition of the plaintiff is in controversy and that it is desirable that he shall be examined by medical specialists before the trial. The prayer of the motion is that the court order a complete physical and mental examination. It does not appear upon the face of the motion that it is submitted under Rule 35 of the new rules, 28 U.S.C.A.following section 723c, but it was said by counsel in argument that it was so submitted. It was the established law in federal courts prior to the adoption of Rule 35 that such an examination as is asked here could not be ordered.

This is a suit for damages for alleged libel of plaintiff by defendant. It is charged in the petition of the plaintiff-- I do not have it now before me and I have not read it for some little time-- it is charged in substance in the petition that defendant in a written article-- in an article written by defendant and printed in the Journal of the American Medical Association-- that plaintiff was suffering from various physical and mental conditions, which were described, and which description, the plaintiff alleges, was calculated to bring him into disrepute, to make him an object of contempt.

I take it from what has been said in the argument that defendant in his answer sets up the truth of the article which he wrote and which was printed. The question presented then is this-- a question not argued by counsel-- the question presented is, does Rule 35 govern such a situation as is presented by this case.

The language of Rule 35 is this-- '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 by whom it is to be made.

During the short recess I declared at the conclusion of the argument I looked into

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the few authorities we have as yet which discuss these Rules. I searched especially for comment on and interpretation of Rule 35. I have here Edmunds on...

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