McMullen v. Travelers Insurance Company

Decision Date09 May 1960
Docket NumberNo. 16544.,16544.
Citation278 F.2d 834
PartiesLeonard J. McMULLEN, Appellant, v. TRAVELERS INSURANCE COMPANY, a corporation, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Leonard J. McMullen, Los Angeles, Cal., for appellant.

Chase, Rotchford, Downen, & Drukker, Louis E. Abbott, Los Angeles, Cal., for appellee.

Before STEPHENS, CHAMBERS and MERRILL, Circuit Judges.


In this diversity action, summary judgment was entered against McMullen because he failed to submit himself to a physical examination pursuant to an order obtained by Travelers. He appeals.

McMullen's suit was on an insurance contract of Travelers in connection with his claim of total disability. Issues were joined on liability, the main one being: Is McMullen disabled?

Travelers' order for McMullen to submit to the examination was obtained under Rule 35(a), Federal Rules of Civil Procedure, 28 U.S.C.A. After persistent refusal by McMullen, an order was obtained under Rule 37(b) (2) (i), which found the facts (without any proof) in accordance with the claim or contentions of Travelers as to McMullen's physical condition. Such findings, if properly made, being dispositive of the whole action, the trial court entered summary judgment in favor of Travelers.

That there was a continued, persistent refusal is evident. The reasons for the refusal are not entirely clear. McMullen expresses fear of bodily harm. We doubt if any fear was justified. He did not object to the doctor designated as incompetent. Certainly no order for examination, though not limited as to scope, carries with it the broad authority to cut off appellant-plaintiff's leg, as he contends.

Then McMullen contends that such an order violates his "rights."

The determination of a fact issue is a search for the truth, and he who raises the issue just has to submit to a physical examination when it is relevant to ascertaining the truth of the issue.

While a more normal method of disposing of the case would be a dismissal with (or without) prejudice, or the rendering of judgment by default against the disobedient party, as provided in Rule 37(b) (2) (iii), still the exact procedure of finding the facts against him who refuses is provided by Rule 37(b) (2) (i), supra. Once achieved, the entry of summary judgment would appear to have been eminently proper.

We surmise that the customary use of Rule 37(b) (2) (i) would be found in the case where a court desired as a sanction to deprive a party of one issue,...

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4 cases
  • Wyle v. R.J. Reynolds Industries, Inc.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 30, 1983
    ...does not violate the right to a jury trial where a party fails to comply with court-ordered discovery. McMullen v. Travelers Insurance Co., 278 F.2d 834 (9th Cir.) (per curiam), cert. denied, 364 U.S. 867, 81 S.Ct. 110, 5 L.Ed.2d 89 When necessary, the district court may hold an evidentiary......
  • First Commercial Bank v. Cole, 89-1535
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • August 30, 1991 comply with discovery orders. Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 503-04 (4th Cir.1977). In McMullen v. Travelers Ins. Co., 278 F.2d 834 (9th Cir.), cert. denied, 364 U.S. 867 (1960), the court held that the district court did not abuse its discretion when it designated ......
  • Cromaglass Corporation v. Ferm
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • June 27, 1972
    ...designate facts as alleged by Defendants as being established for purposes of the litigation were issued in McMullen v. Travelers Insurance Company, 278 F.2d 834 (9th Cir., 1960); and Life Music, Inc. v. Broadcast Music, Inc., 41 F.R.D. 16 (S.D.N.Y., 1966); Kahn v. Secretary of Health, Educ......
  • Pinkston v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 25, 1960

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