McQuigan v. Delaware, L.&W.R. Co.

Decision Date01 December 1891
Citation29 N.E. 235,129 N.Y. 50
PartiesMcQUIGAN v. DELAWARE, L. & W. R. CO.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, fourth department.

Action by Michael McQuigan against the Delaware, Lackawanna & Western Railroad Company. Defendant appeals from an order refusing to compel plaintiff to submit to a physical examination. Affirmed.

Louis Marshall, for appellant.

Andrew Hamilton, for respondent.

ANDREWS, J.

The sole question presented by this record is whether the supreme court has power, in advance of the trial of an action for a personal and physical injury, to compel the plaintiff, on an application made in behalf of the defendant, to submit to a surgical examination of his person by surgeons appointed by the court, with a view of enabling them to testify on the trial as to the existence and extent of the alleged injury. The question is not new in the courts, although, so far as we know, it was first presented in 1868, before a judge of the New York superior court at special term, in the case of Walsh v. Sayre, 52 How. Pr. 334, who affirmed the existence of the power. The contrary was held by the general term of the third department in Roberts v. Railroad Co., 29 Hun, 154. In 1877 the supreme court of Iowa, in the case of Schroeder v. Railway Co., 47 Iowa, 375, sustained the doctrine that the court had an inherent jurisdiction to grant a compulsory order that the plaintiff submit to such examination, and this decision has been followed by the courts of several of the western and southern states, and in others the power has been denied. The same question was considered in the United States supreme court in the recent case of Railway Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct. Rep. 1000, decided in May, 1891, and the court (two judges dissenting) decided adversely to the claim that the court had power to compel such examination. The opinions of the several courts which have passed upon the question present very fully the considerations bearing upon it. We concur in the view taken by the supreme court of the state and the supreme court of the United States, and we can add very little to the full discussion to be found in the opinions of those courts. The powers of courts are either statutory or those which appertain to them by force of the common law, or they are partly statutory and partly derived from immemorial usage which latter constitutes their inherent jurisdiction. They are organized for the protection of public and private rights and the enforcement of remedies. Presumptively, therefore, whatever judicial procedure is essential to enable courts to exercise their function is authorized. The maxim that there is no right without a remedy justified the courts, in the earlier periods of the common law, in inventing writs and modes of procedure adapted to present for adjudication in proper form every question of judicial cognizance. The powers and jurisdiction of the courts of common law and chancery in England are to be found in the English statutes, and in the rules, precedents,decisions, and procedure of the courts. The power which the courts actually exercised, supplemented by statutory powers, consitutes in a general sense their jurisdiction. Upon the organization here of the federal and state governments, courts were constituted, and in this state they succeeded to the powers theretofore exercised by the courts of law and chancery in England, so far as they were applicable to our situation. It is a significant fact that not a trace can be found in the decisions of the common-law courts of England, either before or since the Revolution, of the exercise of a power to compel a party to a personal action to submit his person to examination at the instance of the other party. If the power existed, it is difficult to suppose that it would not have been frequently invoked. Actions for assault and battery, for injuries arising from negligence, and generally for personal torts, were among the most common known to the law, and yet, so far as we can discover, in no case was it supposed or claimed that the court was armed with this jurisdiction. The nonexercise of a power is not conclusive against its existence, but it is inconceivable that, if the power in question existed, it should have been unused for centuries, and never have been called into activity. In two cases cited by Justice GRAY in his opinion in Railway Co. v. Botsford, supra, the court of common bench in England refused an order for the inspection of a building, on the application of the plaintiff in an action for work and labor performed by him thereon, on the ground of want of power. Newham v. Tate, 1 Arn. 244; Turquand v. Strand Union, 8 Dow, 201. These cases tend to negative the existence of the power in the English courts, claimed for our courts in the case at bar. The only authority in the English common-law courts in any degree analogous is found in the power which the courts of England have occasionally, though rarely, exercised,-to issue, on the application of apparent heirs, the writ de ventre suspiciendo, to compel a widow claiming to be with child by her deceased husband to submit her person to examination. The practice in England is sui generis, and has never been adopted here. It may have originated in the peculiar favor shown to heirs by the law of England, but, whatever its origin, it seems repugnant to common right, and the fact that in this instance only have the courts of England exercised the power to compel the examination of the person in a civil proceeding tends to show that the power is not there regarded...

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52 cases
  • Collopy v. Newark Eye and Ear Infirmary
    • United States
    • New Jersey Supreme Court
    • April 28, 1958
    ...itself. The modification of common-law rules of liability comes within the legislative domain. McQuigan v. Delaware, L. & W.R. Co., 129 N.Y. 50, 29 N.E. 235, 14 L.R.A. 466 (Ct.App.1891). There, the question involved was the existence of judicial power to compel the plaintiff in a personal i......
  • Greenhow v. Whitehead's, Inc., 7317
    • United States
    • Idaho Supreme Court
    • December 30, 1946
    ... ... such an order, but now has an authorizing statute ... McQuigan v. Delaware, L. & W. R. Co., 129 N.Y. 50, ... 29 N.E. 235, 14 L.R.A. 466, 26 Am.St.Rep. 507 ... ...
  • Proskin v. County Court of Albany County
    • United States
    • New York Court of Appeals Court of Appeals
    • February 10, 1972
    ...the very subject of the suit (People ex rel. Lemon v. Supreme Ct., 245 N.Y. 24, 28, 156 N.E. 84, Supra, citing McQuigan v. Delaware, L. & W.R.R. Co., 129 N.Y. 50, 55, 29 N.E. 235). Over the years, and for the purpose of relieving obvious defects, the remedy of discovery and inspection was f......
  • Kaull v. Kaull
    • United States
    • United States Appellate Court of Illinois
    • December 22, 2014
    ...by this court. (The Union Pacific Ry. Co. v. Botsford, 141 U.S. 250 [11 S.Ct. 1000, 35 L.Ed. 734] ; McQuigan v. Delaware, Lackawanna & Western R.R. Co., 129 N.Y. 50 [29 N.E. 235 (1891) ].)” Id.¶ 61 The statute at issue in McGovern provided:“On or before the trial of any action brought to re......
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