Rison v. Postal Telegraph-Cable Co.

• Decision Date: 27 October 1928
• Docket Number: No. 18239K.,18239K.
• Parties: RISON v. POSTAL TELEGRAPH-CABLE CO.
• Court: U.S. District Court — Northern District of California

28 F.2d 788 (1928)

RISON v. POSTAL TELEGRAPH-CABLE CO.

No. 18239K.

District Court, N. D. California, S. D.

October 27, 1928.

C. H. Fish, of San Francisco, Cal., for plaintiff.

Gaylord & Smith, of San Francisco, Cal., for defendant.

KERRIGAN, District Judge.

Defendant in this case has moved for an order requiring the plaintiff to submit to a physical examination prior to the trial by a physician to be designated by the court. Defendant relies upon the authority of Camden & Suburban Ry. Co. v. Stetson, 177 U. S. 172, 20 S. Ct. 617, 44 L. Ed. 721, which held that, although under the common law the federal courts might not order such examination (Union Pacific Ry. Co. v. Botsford, 141 U. S. 250, 11 S. Ct. 1000, 35 L. Ed. 734), it might do so where the federal court in which the action was brought was in a state permitting such examinations by statute.

There is no statute in California expressly authorizing such an order. The Supreme Court of the state of California has held, in Johnston v. Southern Pacific Co., 150 Cal. 535, 89 P. 348, 11 Ann. Cas. 841, that an order for physical examination is within the general powers of the courts (C. C. P. § 128, subd. 5), "to control in furtherance of justice the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter appertaining thereto."

The statute just quoted is but a codification of a general common-law rule. Johnston v. Southern Pacific Co., supra, is therefore virtually the California interpretation of the common law, and is decided with reference to such general principles. The Supreme Court of the United States, in Union Pacific Ry. Co. v. Botsford, supra, has reached a different conclusion as to the common law, and this court is controlled by that conclusion. Chicago & N. W. Ry. Co. v. Kendall (C. C. A. 8) 167 F. 62, 16 Ann. Cas. 560; Brace v. Central Ry. Co. of New Jersey (D. C.) 216 F. 718; 2 Cyclopedia of Federal Procedure, § 573, p. 832. See, also, Hanks Dental Association v. International Tooth Crown Co., 194 U. S. 303, 24 S. Ct. 700, 48 L. Ed. 989.

In Chicago & N. W. Ry. Co. v. Kendall, supra, the contention was made that the federal courts sitting in Iowa were controlled by the decisions of the Supreme Court of Iowa under which a physical examination might be ordered. The Circuit Court of Appeals for the Eighth Circuit says:

"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...