Chicago & N.W. Ry. Co. v. Kendall

• Decision Date: 09 February 1909
• Docket Number: 2,750.
• Citation: 167 F. 62
• Parties: CHICAGO & N.W. RY. CO. v. KENDALL.
• Court: U.S. Court of Appeals — Eighth Circuit

167 F. 62

CHICAGO & N.W. RY. CO. v. KENDALL.

No. 2,750.

United States Court of Appeals, Eighth Circuit.

February 9, 1909

James C. Davis (Grimm, Trewin & Robbins and A. A. McLaughlin, on the brief), for plaintiff in error.

William Smyth (J. W. Jamison and C. J. Lynch, on the brief), for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and AMIDON, District Judge.

AMIDON District Judge.

This is an action to recover damages for personal injury. In his complaint plaintiff alleges that while he was stepping from a passenger train of the defendant, after it had stopped at the station for which he held passage, and the brakeman had called out the name of the station, the train was suddenly and violently backed, and he was thereby thrown down and his knee seriously and permanently injured. On the trial he took the witness stand in his own behalf, and while undergoing cross-examination was asked to expose his knee to the jury for inspection. Objection was at first made, but after some colloquy his counsel directed him to comply with the request. A question was then raised as to whether the injured knee was different from the other knee, and a juryman suggested that that matter could be better determined by an examination of the other knee, and thereupon plaintiff exposed that knee also. Counsel for defendant then addressed to plaintiff while on the witness stand, the following question:

'Q. I have in the courthouse two reputable physicians Dr. D. S Fairchild, of Clinton, and Dr. J. S. Ristine, of Cedar Rapids. I ask you now, with your knees exposed, whether you will permit these two physicians, in the presence of the jury, to examine you?'

This question was objected to by counsel for plaintiff, but the court overruled the objection, and required an answer. Thereupon the plaintiff answered, 'Not at this place,' and immediately afterwards refused to permit any examination by the physicians.

Counsel for defendant then presented a motion in writing that plaintiff be required to submit his knee to the examination of physicians selected by the defendant, either in open court, or at some other place, before the conclusion of the trial. On the following morning, counsel for plaintiff filed written objections to the granting of the motion, and the court announced its ruling as follows:

'As I understand, in this matter the court has no power to require a party to submit to a physical examination, except in those states where the local statute authorizes it, and there is no such statute in Iowa. The application will be denied.'

To this ruling an exception was duly reserved, and the same now presents the only error urged in this court for the reversal of a judgment in favor of plaintiff.

The Supreme Court of Iowa, in Schroeder v. Chicago, Rock Island & Pac. R.R. Co., 47 Iowa, 378, decided that at common law, and independent of statute, the court had power, in an action for personal injuries, to compel the plaintiff to submit his body to the examination of physicians selected by the court or by the defendant, for the purpose of ascertaining the nature and permanency of the injuries. In Union Pac. R.R. Co. v. Botsford, 141 U.S. 250, 11 Sup.Ct. 1000, 35 L.Ed. 734, the Supreme Court decided that federal courts do not possess such power. Defendant now contends (1) that the Botsford Case is overruled by Camden Railway Co. v. Stetson, 177 U.S. 172, 20 Sup.Ct. 617, 44 L.Ed. 721; (2) that the question involved relates to a matter of evidence, and that as to such matters the decisions of the highest court of the state in which the action is tried constitute 'laws' within the meaning of section 721 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 581), and are therefore binding upon the federal courts. Considering now the first contention, the opinion in the Botsford Case is based upon three grounds: (1) That at common law a court has no power to compel plaintiff in an action for personal injuries to submit his body to examination. (2) That such a practice would be a violation of the seventh amendment of the Constitution, which declares that in all suits at common law, where the value in controversy shall exceed $20, trial by jury shall be preserved. (3) That such a practice would be a violation of Section 861 of the Revised Statutes (U.S. Comp. St. 1901, p. 661) and other sections defining the manner of taking depositions. Since the case of Camden Railway Co. v. Stetson, 177 U.S. 172, 20 Sup.Ct. 617, 44 L.Ed. 721, the last two of these grounds can no longer be regarded as tenable. In that case a statute of New Jersey authorizing such a practice was held to be binding upon the federal courts sitting in that state, and it was expressly ruled that such a statute did not violate either the federal Constitution or any federal statute. The other ground of decision, viz., the want of power, is not overruled, but, on the contrary, is expressly reaffirmed. The court says on that subject: 'It is settled in this court that no power to make such an order exists at common law; in other words, the court has no inherent power to make it'--citing the Botsford Case.

As to defendant's second contention, that the decision of the Supreme Court of Iowa upon a question of evidence is a 'law' within the meaning of section 721 of the Revised Statutes, we observe first that the question here raised is not of that character. It could not be contended that the testimony of a skilled physician based upon an inspection of the injured member would not be relevant evidence as to the nature and permanency of the injury. The question is not whether such testimony would be admissible in evidence, but whether the court has, at common law, the power to compel the plaintiff to submit to a surgical examination. We are therefore presented with a matter of practice rather than a rule of evidence. Neither court purports to deal with the question as a subject of local law. The Botsford decision is not based upon any statute or decision of the state in which the action arose. Nor does the Supreme Court of Iowa rely upon any consideration peculiar to that state. Both courts appeal to the general common law as the source of their decision. They are in direct conflict. Which authority should a federal court sitting in Iowa obey? When the point is thus presented, the answer is plain. One of the important functions of the Supreme Court is to declare the powers of inferior federal courts, and, when it has spoken on such a subject, its decision for those courts is final, anything in the decisions of state courts to the contrary notwithstanding.

Being a matter of practice relating to the power of courts, neither state statutes nor the decisions of state courts on the subject are binding on federal courts under section 721 of the Revised Statutes. This was early decided by the Supreme Court in Wayman v. Southard, 10 Wheat. 1, 6 L.Ed. 253. It was there held that section 34 of the judiciary act, being the same as section 721 of the Revised Statutes--

'does not apply to the process and practice of the federal courts; it is a mere legislative recognition of the principles of universal jurisprudence as to the operation of the lex loci.'

Previous to the conformity act of 1872, c. 255, 17 Stat. 196, the practice of federal courts in actions at law was wholly independent of current state statutes and state decisions. Combining the provisions of the temporary judiciary act of September, 1789, c. 20, 1 Stat. 92, and the process act of 1792, c. 36, 1 Stat. 275, it was provided that the practice at common law in the federal courts for the 13 original states should be that which obtained in the Supreme Courts of those states respectively in the month of September, 1789. As new states were admitted to the Union, other statutes were passed fixing the practice in the highest courts of those states at an arbitrary time as the practice in the federal courts when sitting in those states. Wayman v. Southard, 10 Wheat. 1, 6 L.Ed. 253; Conkling's Treatise (1870) page 323 et seq. So long as the common-law system was in vogue in all the states of the Union, little embarrassment was experienced in applying the practice thus established for the federal courts.

But in 1848 the reform procedure was introduced in New York by the Code of that year, and by 1860 similar codes had been adopted in most of the states of the Union. When a generation of lawyers had grown up under these codes knowing nothing of the common-law practice, the burden of acquiring that practice for the few cases which they had in the federal courts became intolerable. To meet that difficulty, section 914 of the Revised Statutes was passed in 1872 (U.S. Comp. St. 1901, p 684), requiring federal courts to observe the state practice in actions at common law, 'as near as may be.' Lamaster v. Keeler, 123 U.S. 376-387, 8 Sup.Ct. 197, 31 L.Ed. 238; Indianapolis & St. Louis Railroad Company v. Horst, 93 U.S. 291-299, 23 L.Ed. 898; Nudd v. Burrows, 91 U.S. 426-441, 23 L.Ed. 286. It is manifest, therefore, that, as to a matter of practice such as we are considering, the federal courts can derive no power under section 721 of the Revised Statutes from either the decisions or the statutes of the states. Such a rule, if obligatory on the federal courts, must come in under section 914, commonly known as the 'Conformity Act.' But under that section decisions of state courts, unless made in construing local statutes, have never been regarded as controlling in the national courts. Even local statutes on the subject of procedure have been rejected by those courts whenever in their judgment such statutes would unwisely incumber the administration of justice. Collin County National Bank v. Hughes, 155 F. 389, 83 C.C.A. 661. ...