Brace v. Central R. Co. of New Jersey

• Decision Date: 19 September 1914
• Docket Number: 508.
• Parties: BRACE et al. v. CENTRAL R. CO. OF NEW JERSEY.
• Court: U.S. District Court — Middle District of Pennsylvania

216 F. 718

BRACE et al. v. CENTRAL R. CO. OF NEW JERSEY.

No. 508.

United States District Court, M.D. Pennsylvania.

September 19, 1914

Paul J Sherwood, of Wilkes-Barre, Pa., for plaintiff.

Warren Knapp, O'Malley & Hill, of Scranton, Pa., for defendant.

WITMER District Judge.

In this action the plaintiffs are endeavoring to recover damages for alleged injuries sustained by Bert W. Brace while a passenger on one of defendant's railway trains. The plaintiffs' statement sets forth that the said Brace suffered a fracture of the skull, resulting in permanent injuries to his brain and mind. Upon refusal to have the injured plaintiff examined by disinterested physicians to determine the state of his mind and the extent of the injury, the defendant obtained a rule to show cause why such examination should not be ordered under the direction of the court. The plaintiffs resist the order, and in support of their contention that the court is without authority in the matter call attention to Camden Sub. Ry. Co. v Stetson, 177 U.S. 172, 20 Sup.Ct. 617, 44 L.Ed. 721; Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 11 Sup.Ct. 1000, 35 L.Ed. 734; Chicago v. Kendall, 167 F. 62, 93 C.C.A. 422, 16 Ann.Cas. 560; Wilson v. N. Eng. Nov. Co. (D.C.) 197 F. 88; Denver City Tram. Co. v. Norton, 141 F. 599, 73 C.C.A. 1; In re Ward (D.C.) 161 F. 755.

This is a common-law action for the recovery of damages for a tort, and subject to the local law concerning matters of evidence. Section 721, Rev. St. (U.S. Comp. St. 1901, p. 581); Camden, etc., Railway Co. v. Stetson, supra. No power to make an order for the examination of the person of the plaintiff in a case like this is to be found at common law (Union Pacific Railway v. Botsford, supra); hence in the absence of a state law the power does not exist.

The question has been variously decided in the lower courts of Pennsylvania, but it nowhere appears that it has been considered by the State Supreme Court. Though the sound reasoning employed in the able opinion of Judge Gunnison in Hess v. Railroad Co., 7 Pa.Co.Ct.R. 565, and by Judge Biddle in Dimenstein v. Riechelson, 34 Wkly. Notes Cas. (Pa.) 295, appeals to me, yet it remains that their conclusion reached, in granting the order, was based on the proper exercise of the equitable powers inherent in courts, incident to their power to regulate practice necessary to the proper administration of justice, being satisfied that...