McGovern v. Hope

• Decision Date: 27 February 1899
• Citation: 63 N.J.L. 76,42 A. 830
• Parties: McGOVERN v. HOPE et al.
• Court: New Jersey Supreme Court

42 A. 830

63 N.J.L. 76

McGOVERN

v. HOPE et al.

Supreme Court of New Jersey.

Feb. 27, 1899.

Action by Elizabeth McGovern against Mary Ellen Hope and others to recover damages for personal injuries. On application by petition for the physical examination of plaintiff. Granted.

Argued February term, 1899, before DEPUE, VAN SYCKEL, and LIPPINCOTT. JJ.

Joseph Anderson, for plaintiff.

Randolph, Condict & Black, for defendants.

DEPUE, J. This action was brought by the plaintiff against the defendants, as owners and in possession of certain premises designated as "Nos. 74 and 76 Newark Avenue," In Jersey City. The gravamen of the plaintiff's action, as set out in her declaration, is that the defendants illegally, wrongfully, and unjustly maintained a pitfall in the sidewalk in front of the buildings on said premises, by means of which the plaintiff was, on the 8th of August, 1897, "severely and permanently injured, bruised, and cut about her person," in consequence of which injuries she seeks to recover damages from the defendants, claim- ing the sum of $10,000. The cause being put at issue, the defendants present to this court a petition for the physical examination of the plaintiff. The petition alleges that the defendants did not know or hear of said injuries to the plaintiff until the plaintiff's declaration was filed; that they have made a demand or request upon the plaintiff to permit them to have a physician or surgeon make a physical examination of the plaintiff, so as to enable him to testify at the trial as to the nature and extent of her alleged injuries; and that the plaintiff refused such request. This petition is presented pursuant to an act of the legislature approved May 12, 1896, entitled "A supplement to an act entitled 'An act concerning evidence.'" That act provides: "On or before the trial of any action brought to recover damages for injury to the person, the court before whom such action is pending may, from time to time, on application of any party therein, order and direct an examination of the person injured as to the injury complained of by a competent physician or physicians, surgeon or surgeons, in order to qualify the person or persons making such examination to testify in the said cause as to the nature, extent and probable duration of the injury complained of; and the court may in such order direct and determine the time and place of such examination: provided, this act shall not be construed to prevent any other person or physician from being called and examined as a witness as heretofore." P. L. 1896, p. 344.

The application is resisted by plaintiff's counsel on several grounds touching the constitutionality of the act. It is insisted, first, that the act is imperfect, in that the object of the act is not expressed in the fide. The act is entitled "A supplement to an act concerning evidence." As the object of this proceeding is to obtain evidence, this objection cannot be sustained.

In the act concerning evidence provisions are contained in relation to the inspection of property, and to the taking of depositions to be used as evidence in the case of witnesses. The proceeding authorized by the statute is a proceeding to obtain evidence analogous to proceedings that authorize an inspection of property and the taking of depositions, and a statutory enactment such as this properly comes under the title of an act concerning evidence. Such a title is quite as appropriate as would be a title relating to the practice of law.

Nor can this act be regarded as an infringement of the constitutional right of a party in a civil suit to be confronted by the witnesses. This objection, if valid, would set aside the statute that authorizes the taking of depositions. Nor will the consideration of any unfairness in resort to these proceedings be of any avail. If the subject is within the cognizance of the legislature, the legislative policy must prevail.

The question has been very much discussed as to whether the courts have not an inherent jurisdiction to compel a plaintiff to submit to such an examination independently of any statute expressly authorizing it. Schroeder v. Railroad Co., 47 Iowa, 375, is the leading case sustaining such a power on the part of the court. That decision has been followed in some of the courts of other states. This doctrine has been denied in the supreme court of the United States and in the New York courts. Railway Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct. 1000; McQuigan v. Railroad Co., 129 N. Y. 50, 29 N. E. 235. The decision in the former of these two cases was put upon the ground that the power of the federal courts is such as they have under the constitution and laws of the United States, and that by act of congress the mode of proof and of obtaining discovery and inspection did not comprehend the power to require a party to submit himself to an examination of his person. The decision of the New York court went upon the same ground, and Judge Andrews, delivering the opinion of the court, said: "The exercise by the court of the power now invoked, as has been shown, is not sanctioned by any usage in the courts of England or of this state. Its existence is not indispensable to the due administration of justice. Its exercise, depending on the discretion of the judge, Would be subject to great abuse. We think the assumption by the court of this jurisdiction, in the absence of statute authority, would be an arbitrary extension of its powers." The decision of the New York court was announced in December, 1891, and in 1893 the legislature of New York conferred power on the courts of the same nature with the power conferred by our act of 1896. That act provided that in every action to recover damages for personal injuries the court or judge in granting an order for the examination of the plaintiff before trial may, if the defendant apply therefor, direct that the plaintiff submit to a physical examination by one or more physicians or surgeons, to be designated by the court or judge; and such examination shall be had and made under such restrictions and directions as to the court may seem proper. In principle the New York act is identical with the statute now under consideration with respect to the constitutional objection made by the plaintiff. In 1894 the court of appeals of New York held that this act did not violate any of the express or implied restraints upon the legislative power found in the federal or state constitutions. Lyon v. Railway Co., 142 N. Y. 298, 37 N. E. 113. O'Brien, J., delivering the opinion of the court in the case just cited, said: "The statute enacts a rule of procedure, the purpose of which is the discovery of the truth in respect to certain allegations which the plaintiff has presented for judicial investigation in the courts of justice. It prescribes a method of aiding the court and jury in the determination of an issue of fact raised by the pleadings, and, it seems to me does not violate any of the express or implied restraints upon the legislative power to be found in the fundamental law." In the case just cited the order for an examination was set aside for the reason that it did not conform to the statute, which did not authorize a physical examination apart from and independent of an examination of the plaintiff as a witness before trial. In that respect our statute differs from that of New York. With respect to the power of the legislature to pass an act authorizing such an examination of a party before trial, we concur in the opinion of the court of appeals of New York. In Schroeder v. Railroad Co., supra, the plaintiff brought his action to recover damages for personal injuries caused by the defendant's negligence. The jury had been sworn when the defendant requested ...