312 U.S. 1 (1941), 28, Sibbach v. Wilson & Co.

Docket Nº:No. 28.
Citation:312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479
Party Name:SIBBACH v. WILSON & CO., Inc.
Case Date:January 13, 1941
Court:United States Supreme Court

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312 U.S. 1 (1941)

61 S.Ct. 422, 85 L.Ed. 479



WILSON & CO., Inc.

No. 28.

United States Supreme Court.

Jan. 13, 1941

Argued Dec. 17, 1940.

As Amended on Denial of Rehearing Feb. 10, 1941.

Mr. Justice FRANKFURTER, Mr. Justice BLACK, Mr. Justice DOUGLAS, and Mr. Justice MURPHY, dissenting.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Seventh Circuit.

Action for injuries by Hertha J. Sibbach against Wilson & Co., Inc. A judgment finding plaintiff guilty of contempt and ordering that she be committed to jail until she complied with order requiring her to submit to physical examination by a physician appointed by court, or until she was otherwise legally discharged, was affirmed by the Circuit Court of Appeals, 108 F.2d 415, and plaintiff brings certiorari.

Reversed and remanded.


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[61 S.Ct. 423] Messrs. James A. Velde and Lambert Kaspers, both of Chicago, Ill., for petitioner.

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Mr. J. F. Dammann, of Chicago, Ill., for respondent.


Mr. Justice ROBERTS delivered the opinion of the Court.

This case calls for decision as to the validity of Rules 35 and 37 of the Rules of Civil Procedure for District Courts of the United States. 1

In an action brought by the petitioner in the District Court for Northern Illinois to recover damages for bodily injuries, inflicted in Indiana, respondent answered denying the allegations of the complaint, and moved for an order requiring the petitioner to submit to a physical examination by one or more physicians appointed by the court to determine the nature and extent of her injuries. The court ordered that the petitioner submit to such an examination by a physician so appointed.

Compliance having been refused, the respondent obtained an order to show cause why the petitioner should

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not be punished for contempt. In response the petitioner challenged the authority of the court to order her to submit to the examination, asserting that the order was void. It appeared that the courts of Indiana, the state where the cause of action arose, hold such an order proper,2 whereas the courts of Illinois, the state in which the trial court sat, hold that such an order cannot be made. 3 Neither state has any statute governing the matter.

The court adjudged the petitioner guilty of contempt, and directed that she be committed until she should obey the order for examination or otherwise should be legally discharged from custody. The petitioner appealed.

The Circuit Court of Appeals decided that Rule 35, which authorizes an order for a physical examination in such a case, is valid, and affirmed the judgment. 4 The writ of certiorari ws granted because of the importance of the question involved.

The Rules of Civil Procedure were promulgated under the authority of the Act of June 19, 1934,5 which is:

'Be it enacted * * * That the Supreme Court of the United States shall have the power to prescribe, by general rules, for the district courts of the United States and for the courts of the District of Columbia, the forms of process, writs, pleadings, and motions, and the practice and procedure in civil actions at law. Said rules shall neither abridge, enlarge, nor modify the substantive

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rights of any litigant. They shall take effect six months after their promulgation, and thereafter all laws in conflict therewith shall be of no further force or effect.

'Sec. 2. The court may at any time unite the general rules prescribed by it for cases in equity with those in actions at law so as to secure one form of civil action and procedure for both: Provided, however, That in such union of rules the right of trial by jury as at common law and declared by the seventh amendment [61 S.Ct. 424] to the Constitution shall be preserved to the parties inviolate. Such united rules shall not take effect until they shall have been reported to Congress by the Attorney General at the beginning of a regular session thereof and until after the close of such session.'

The text of the relevant portions of Rules 35 and 37 is:

'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 by whom it is to be made.'

'Rule 37. Refusal To Make Discovery: Consequences

'(a) Refusal to Answer. * * *

'(b) Failure to Comply With Order.

'(1) Contempt. If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court in the district in which the deposition is being taken, the refusal may be considered a contempt of that court.

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'(2) Other Consequences. If any party * * * refuses to obey * * * an order made under Rule 35 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following:

'(i) An order that * * * the physical or mental condition of the party * * * shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

'(ii) An order * * * prohibiting (the disobedient party) * * * from introducing evidence of physical or mental condition;

'(iii) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

'(iii) An order striking out pleadings or orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination.'

The contention of the petitioner, in final analysis, is that Rules 35 and 37 are not within the mandate of Congress to this court. This is the limit of permissible debate, since argument touching the broader questions of Congressional power and of the obligation of federal courts to apply the substantive law of a state is foreclosed.

Congress has undoubted power to regulate the practice and procedure of federal courts,6 and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes

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or Constitution of the United States;7 but it has never essayed to declare the substantive state law, or to abolish or nullify a right recognized by the substantive law of the state where the cause of action arose, save where a right or duty is imposed in a field committed to Congress by the Constitution. On the contrary it has enacted that the state law shall be the rule of decision in the federal courts. 8

Hence we conclude that the Act of June 19, 1934, was purposely restricted in its operation to matters of pleading and [61 S.Ct. 425] court practice and procedure. Its two provisos or caveats emphasize this restriction. The first is that the court shall not 'abridge, enlarge, nor modify the substantive rights', in the guise of regulating procedure. The second is that if the rules are to prescribe a single form of action for cases at law and suits in equity, the constitutional right to jury trial inherent in the former must be preserved. There are other limitations upon the authority to prescribe rules which might have been, but were not mentioned in the Act; for instance, the inability of a court, by rule, to extend or restrict the jurisdiction conferred by a statute. 9

Whatever may be said as to the effect of the Conformity Act 10 while it remained in force, the rules, if they are within the authority granted by Congress, repeal that statute, and the District Court was not bound to follow the Illinois practice respecting an order for physical examination. On the other hand if the right to be exempt from such an order is one of substantive law, the Rules

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of Decision Act 11 required the District Court, though sitting in Illinois, to apply the law of Indiana, the state where the cause of action arose, and to order the examination. To avoid this dilemma the petitioner admits, and, we think, correctly, that Rules 35 and 37 are rules of procedure. She insists, nevertheless, that by the prohibition against abridging substantive rights, Congress has banned the rules here challenged. In order to reach this result she translates 'substantive' into 'important' or 'substantial' rights. And she urges that if a rule affects such a right, albeit the rule is one of procedure merely, its prescription is not within the statutory grant of power embodied in the Act of June 19, 1934. She contends that our decisions and recognized principles require us so to hold.

The petitioner relies upon Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734, and Camden & Suburban R. Co. v. Stetson, 177 U.S. 172, 20 S.Ct. 617, 44 L.Ed. 721. But these cases in reality sustain the validity of the rules. In the Botsford case an action to recover for a personal injury suffered in the territory of Utah 12 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...

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