May v. Northern P. Ry. Co.
| Decision Date | 03 July 1905 |
| Parties | MAY v. NORTHERN PAC. RY. CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Ravalli County; F. C. Webster, Judge.
Action by Mary May against the Northern Pacific Railway Company. From a judgment for plaintiff, and an order denying its motion for a new trial, defendant appeals. Affirmed.
Wm Wallace, Jr., and Charles Donnelly, for appellant.
Henry L. Meyers and R. A. O'Hara, for respondent.
In September, 1903, Mary May commenced this action against the Northern Pacific Railway Company to recover damages for personal injuries alleged to have been occasioned by the negligence of the agents and employes of the defendant company. The answer of defendant denied all the material allegations of the complaint. Prior to the date set for the trial of the cause the defendant company attempted unsuccessfully, to induce the plaintiff to submit the physical examination by surgeons selected by the company presumably. Immediately prior to the trial the defendant made application to the courts for an order compelling the plaintiff to submit to a physical examination by physicians and surgeons appointed by the courts. This application was denied. The cause having been brought on for trial, and the plaintiff having testified as to the caused of her injuries and their nature and extent, and having produced Drs. Breth our and Buchen, her attending physicians, as witnesses in her behalf, upon cross-examination admitted that one Dr. McGrath had also attended her in the early stages of her illness as her physical. The defendant in its behalf called Dr. McGrath and asked him to state in what condition be found the plaintiff when he called upon her. This was objected to on the ground that it called for testimony from a physician concerning matters discovered by him while acting as physician for the plaintiff, and the giving of such testimony by Dr. Dr. McGrath would violate the confidential relation of Physician and patient, contrary to the provisions of section 3163 of the Code of Civil Procedure. This objection was sustained, and exception taken. The jury returned a verdict in factor of the plaintiff, and from the judgment entered thereon, and from an order denying defendant's motion for a new trial, it appealed.
Only two errors are assigned: (1) The order of the courts denying defendant's application for an order compelling the plaintiff to submit to a physical examination, and (2) the order of the courts sustaining an objection to the question asked Dr. McGrath. These will be considered in the order presented in the briefs.
1. Compulsory Physical Examination. May a district courts in this state, in an action for personal injuries, compel the plaintiff to submit to a physical examination by the physicians and surgeons appointed by the courts? Upon this question the authorities are in hopeless conflict, and any attempts to reconcile them would be barren of results.
The first reported case in which the power of the courts to compel such examination is asserted is Walsh v. Sayre, 52 How. Prac. 334, decided by the New York Superior Court in 1868. This was an action for damages for malpractice, and upon the analogy to cases of may them, divorce on the ground of impotency, and cases of controversies between a widow, claiming to be pregnant by the decedent, and other heirs of the estate, where in such examinations had been ordered, it was held that a courts of law could compel the plaintiff to submit to a physical examination. A leading case on the subject is Schemer v. Ry. Co., 47 Iowa, 375, decided in 1877. Mention is not made of the New York case cited above. The opinion states that there were no precedents at the time of its rendition. The power of the trial courts to compel the plaintiff to submit to such an examination is asserted. In 1881 the same question came before the Supreme Court of Ohio, in Turnpike Co. v. Baily, 37 Ohio St. 104, and, upon the authority of the Schemer Case, the power of the trial courts to make and enforce such an order is against asserted. The next case is Railroad Co. v. Thul. 29 Kan. 466, 44 Am. Rep. 659, decided in 1883, upon the authority of the Schemer Case above, the courts preferring to follow the Iowa courts, rather that the Supreme Court of Missouri in Loyd's Case, 53. no. 509. In November, 1884, in White v. Ry. Co., 61 Wis. 536, 21. N.W. 524, 50 Am. Rep. 154, the Supreme Court of Wisconsin decided the same question in the same way upon the authority of Walsh v. Sayre and the Schroeder Case. In Hatfield v. Ry. Co., 33 Minn. 130, 22 N.W. 176, 53 Am. Rep. 14, decided in 1885, the power is asserted, but by way of dicutum. Railroad Co. v. Childress, 82 Ga. 719, 9 S.E. 602, 3 L. R. A. 808, 14 Am. St. Rep. 189, decided in 1889, is another case frequently referred to by courts holding this view. In the opening paragraph of the opinion in this case, section 206 of the Georgia Code is quoted, as follows: "Every courts has power *** to control in furtherance of justice the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter pertaining thereto." No further reference is made to this statute, but the power is asserted upon the authority of the cases herein considered above. In November, 1885, in Sibley v. Smith, 46 Ark. 275, 55 Am. Rep. 584, the same question is decided upon the authority of Walsh v. Sayre, the Schemer Case, and the White Case; Shaw v. Van Rensselaer, 60 How. Prac. 143. Harrold v. R. R. Co., 21 Hun, 268, and Bryant v. Stilwell, 24 Pa. 317, are also cited. In Graves v. Battle Creek, 95 Mich. 266, 54 N.W. 757, 19 L. R. A. 641, 35 Am. St. Rep. 561, decided in 1893, the authorities for and against the assertion of the power are reviewed by the Supreme Court of Michigan, and a decision rendered in favor of the existence of the power in the trial court. In Belt E. L. Co. v. Allen, 102 Ky. 551, 44 S.W. 89, 80 Am. St. Rep. 374, decided in 1898, the same position is taken by the Supreme Courts of Kentucky. In 1899, in the Supreme Court of Washington, in Lane v. Railway Co., 21 Wash. 119. 57 P. 367, 46 L. R. A. 153, 75 Am. St. Rep. 821, a like decision was made. The last state to assert this view is North Dakota, in Brown v. R. R. Co., 12 N.D. 61, 95 N.W. 153, 102 Am. St. Rep. 564, decided in 1903. In 1873 the Supreme Court of Missouri, in Loyd v. Railroad Co., 53 Mo. 509, had before it a personal injury case in which in application had been made to the trial courts for an order to compel the plaintiff to submit to a physical examination. Respecting this application, the courts said: "The proposal to the courts to call in two surgeons and have the plaintiff examined during the progress of the trial as to the extent of her injuries is unknown to our practice and to the law." In 1882, in Parker v. Enslow, 102 Ill. 272, 40 Am. Rep. 588, the Supreme Courts of Illinois held that the trial courts could to make or enforce such an order. In 1889, in Kern v. Bridwell, 119 Ind. 226, 21 N.E. 664, 12 Am. St. Rep. 409, the same conclusion was reached by the Supreme Courts of Indiana. In 1891 the question came before the Supreme Court of the United States in Railroad Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734 and, after a careful consideration of the authorities, it was held by a divided courts-seven to two-that the power does not reside in the federal trial courts. This was followed by the Supreme Court of Oklahoma in City of Kingfisher v. Altizer, 74 P. 107, by the Court of Civil Appeals of Texas in Railway Co. v. Cluck (Tex. Civ. App.) 73 S.W. 569, and by the Supreme Courts of Massachusetts in Stack v. Ry. Co., 177 Mass. 155, 58 N.E. 686, 52 L. R. A. 328, 83 Am. St. Rep. 269.
The foregoing review shows the decisions of courts upon the first presentation of this question to them. The case of Walsh v Sayre was followed in Shaw v. Van Rensselaer, above; but in 1891 the question came before the Court of Appeals of New York in McQuigan v. Ry. Co., 129 N.Y. 50, 29 N.E. 235, 14 L. R. A. 466, 26 Am. St. Rep. 507, and Walsh v. Sayre and Shaw v. Van Rensselaer were overruled. The McQuigan Case was followed in Cole v. Fall Brook Coal Co., 159 N.Y. 59, 53 N.E. 670, decided in 1899. The Legislature of New York, however, circumvented the effect of these last decisions by enacting a statute directly conferring upon the trial courts the power to make and enforce such an order. In Shepard v. Ry. Co., 85 Mo. 629, 55. Am. Rep. 390. Decided in 1885, a view contrary to that expressed in Loyd's Case in intimated by the Supreme Courts of Missouri, and in Sidekum v. Ry. Co., 93 Mo. 400., 4 S.W. 701, 3 Am. St. Rep. 549, a decision was rendered which had the effect of Directly reversing the Loyd Case; and the Sidekum Case was followed in Owens v. Ry. Co., 95 Mo. 169, 8 S.W. 350, 6 Am. St. Rep. 39. The Schemer Case was following by the Supreme Courts of Iowa in Hall v. Manson, 99 Iowa, 698, 68 N.W. 922, 34 L. R. A. 207; and Railway Co. v. Thul was approved and followed in Ottawa v. Gilliland, 63 Kan. 165, 65 P. 252, and again in Railway Co. v. Palmore, 68 Kan. 545, 75 P. 509, 64 L. R. A. 90. White v. Milwaukee Ry. Co. was followed by the Supreme Courts of Wisconsin in O'Brien v. La. Crosse, 99 Wis. 421, 75 N.W. 81, 40 L. R. A. 831. Sibley v. Smith, above, was followed in Railway Co. v. Dobbins, 60 Ark. 481, 30 S.W. 887, 31 S.W. 147. The Supreme Courts of Indiana has been most uncertain in its treatment of the question. Kern v. Bridwell above was decided in May, 1889; but in November of the same year, in Hess v. Lowrey, 122 Ind. 225, 23 N.E. 156, 7 L. R. A. 90, 17 Am. St. Rep. 355, a contrary doctrine is announced. In 1891, in Railroad Co. v. Newmeyer, 129 Ind. 401, 28 N.E. 860, the announcement in Hess v. Lowrey is...
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