321 F.2d 43 (7th Cir. 1963), 14103, Schlagenhauf v. Holder

Docket Nº:14103.
Citation:321 F.2d 43
Party Name:Robert L. SCHLAGENHAUF, Petitioner, v. Cale J. HOLDER, United States District Judge for the Southern District of Indiana, Respondent.
Case Date:July 23, 1963
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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321 F.2d 43 (7th Cir. 1963)

Robert L. SCHLAGENHAUF, Petitioner,


Cale J. HOLDER, United States District Judge for the Southern District of Indiana, Respondent.

No. 14103.

United States Court of Appeals, Seventh Circuit.

July 23, 1963

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[Copyrighted Material Omitted]

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Richard W. Yarling, Indianapolis, Ind., for petitioner.

Erle A. Kightlinger, Indianapolis, Ind., for respondent.

Before KILEY and SWYGERT, Circuit Judges, and GRANT, District Judge.

SWYGERT, Circuit Judge.

Robert L. Schlagenhauf petitions for a writ of mandamus (28 U.S.C. § 1651(a), the All Writs Act) directed to the Honorable Cale J. Holder, district judge. The petition raised an important question respecting the scope of Rule 35, Fed.R.Civ.P., 1 viz., whether a federal district court has the power to order a mental or physical examination of a person who is a defendant in a tort action. We know of no prior decision directly in point. 2

Because the question is fundamental, going to the court's power to require a medical examination of a defendant in a civil action, we directed the district judge to show cause why the writ should not issue. After a response to our order had been filed on behalf of the district

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judge and after briefs had been submitted by the parties to the litigation, oral argument was heard.

A diagrammatic description of the history of the litigation is presented in order to show how the question arises.

Diversity action seeking

damages for the personal

Jennie Markiewicz, John Anthony injuries suffered by

Markiewicz, Edward Markiewicz Jennie and John Anthony

(husband and father, respectively Markiewicz, passengers

of Jennie and John Anthony), on the Greyhound bus,

v. and for loss of their services

sustained by John

The Greyhound Corporation, Robert Markiewicz, all resulting

L. Schlagenhauf, (the driver of from bus collision with

the Greyhound bus), Contract the trailer being pulled

Carriers, Inc., Joseph L. McCorkhill, by Contract Carriers.

(the driver of Contract Carriers' The accident occurred

truck-tractor), National July 13, 1962, on U. S.

Lead Company (the owner of the Highway 40 in Hendricks

trailer being pulled by Contract County, Indiana. Complaint

Carriers). was filed July 17,

1962, as amended

November 8, 1962.

The Greyhound Corporation,


Contract Carriers, Joseph L. McCorkhill,

National Lead Company, Cross-claim for damages to

Greyhound's bus.


General Motors Corporation

(third party defendant).

National Lead Company,

v. Cross-claim for damages to

National's trailer.

Greyhound Corporation, Robert L.


After the original complaint had been amended, Greyhound answered and filed its cross-claim. Contract Carriers and McCorkhill also answered the amended complaint.

Contract Carriers and McCorkhill filed a letter, pursuant to the district court's order, setting forth the specific allegations relied on in defense of Greyhound's cross-claim. Among these allegations is:

'4. The defendant, The Greyhound Corporation, carelessly and negligently employed and caused its driver, Robert L. Schlagenhauf, to operate said bus upon a public highway, although said Robert L. Schlagenhauf was not mentally or physically capable of operating said bus upon a public highway at the time and place when said accident occurred, which fact was known or should have been known to The Greyhound Corporation.'

National Lead also filed its answer to the amended complaint together with an answer to Greyhound's cross-claim. One of the defenses asserted to Greyhound's

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cross-claim was that the negligence of the driver of the bus, Schlagenhauf, proximately caused the damages to the bus owned by Greyhound.

National Lead's cross-claim alleged 'that the defendant, The Greyhound Corporation acting by and through its said agent * * * and its said employee, (Schlagenhauf) * * * were guilty of carelessness and negligence in one or more of the following particulars:

'(8) By permitting said bus to be operated over and upon said public highway by said defendant, Robert L. Schlagenhauf, when both the said Greyhound Corporation and said Robert L. Schlagehauf knew that the eyes and vision of the said Robert L. Schlagenhauf was (sic) impaired and deficient.'

On February 5, 1963, Contract Carriers, MCCorkhill, and National Lead filed a joint petition for an order requiring Robert L. Schlagenhauf to submit to a series of mental and physical examinations. The petitions gave the following reasons for such request:

'(1) The defendant, Robert L. Schlagenhauf, was involved in a similar type accident near the town of Flatrock, Michigan, while driving a motorbus for the defendant, Greyhound Corporation. ' (2) The lights of the tractor trailer unit which was struck by the bus driven by the defendant Schlagenhauf, were visible from three-fourths to one-half mile to the rear of said vehicle. '(3) The defendant Schlagenhauf saw red lights ahead of him for period of ten to fifteen seconds prior to impact and yet did not reduce speed or alter his course.'

The petition further alleged that separate examinations are required by multiple experts because on one expert could examine Schlagenhauf respective to all the conditions which related to his driving ability. In all four examinations were requested.

The district court on February 21, 1963, granted the petition and ordered Schlagenhauf to submit to mental and physical examinations by two named internists, two named ophthalmologists, three named neurologists and two named psychiatrists, despite the fact that only four examinations had been requested.

On March 14, 1963, Contract Carriers, McCorkhill, and National Lead filed supplemental petitions for examinations of Schlagenhauf. These were supplementary to the original petition allegedly because the mental and physical condition of Schlagenhauf became additionally in issue by virtue of National Lead's cross-claim filed subsequent to the petition of February 5.

On March 15, 1963, the district court issued an order (which superseded its February order) granting the supplemental petitions and ordering Schlagenhauf to appear before the nine medical experts for psychiatric and physical examinations. This court stayed the orders pending our disposition of the instant petition for writ of mandamus.

We are mindful of the stringent restrictions that have been placed on the issuance...

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