Schlagenhauf v. Holder, No. 14103.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtKILEY and SWYGERT, Circuit , and GRANT
Citation321 F.2d 43
Decision Date23 July 1963
Docket NumberNo. 14103.
PartiesRobert L. SCHLAGENHAUF, Petitioner, v. Cale J. HOLDER, United States District Judge for the Southern District of Indiana, Respondent.

321 F.2d 43 (1963)

Robert L. SCHLAGENHAUF, Petitioner,
v.
Cale J. HOLDER, United States District Judge for the Southern District of Indiana, Respondent.

No. 14103.

United States Court of Appeals Seventh Circuit.

July 23, 1963.


321 F.2d 44
COPYRIGHT MATERIAL OMITTED
321 F.2d 45
Richard W. Yarling, Indianapolis, Ind., for petitioner

Erle A. Kightlinger, Indianapolis, Ind., for respondent.

Before KILEY and SWYGERT, Circuit Judges, and GRANT, District Judge.

SWYGERT, Circuit Judge.

Robert L. Schlagenhauf petitions for a writ of mandamus (28 U.S.C. § 1651(a), the All Writs Act) directed to the Honorable Cale J. Holder, district judge. The petition raises an important question respecting the scope of Rule 35, Fed.R. Civ.P.,1 viz., whether a federal district court has the power to order a mental or physical examination of a person who is a defendant in a tort action. We know of no prior decision directly in point.2

Because the question is fundamental, going to the court's power to require a medical examination of a defendant in a civil action, we directed the district judge to show cause why the writ should not issue. After a response to our order had been filed on behalf of the district

321 F.2d 46
judge and after briefs had been submitted by the parties to the litigation, oral argument was heard

A diagrammatic description of the history of the litigation is presented in order to show how the question arises.

| Diversity action seeking | damages for the personal Jennie Markiewicz, John Anthony | injuries suffered by Markiewicz, Edward Markiewicz | Jennie and John Anthony (husband and father, respectively, | Markiewicz, passengers of Jennie and John Anthony), | on the Greyhound bus v. | and for loss of their services | sustained by John The Greyhound Corporation, Robert | Markiewicz, all resulting L. Schlagenhauf, (the driver of > from bus collision with the Greyhound bus), Contract | the trailer being pulled Carriers, Inc., Joseph L. McCorkhill, | by Contract Carriers (the driver of Contract Carriers' | The accident occurred truck-tractor), National | July 13, 1962, on U. S. Lead Company (the owner of the | Highway 40 in Hendricks trailer being pulled by Contract | County, Indiana. Complaint Carriers). | was filed July 17, | 1962, as amended November | 8, 1962. The Greyhound Corporation, | v. | Contract Carriers, Joseph L. McCorkhill, | Cross-claim for damages to National Lead Company, > Greyhound's bus. v. | General Motors Corporation | (third party defendant). | National Lead Company, | v. | Cross-claim for damages to > National's trailer. Greyhound Corporation, Robert L. | Schlagenhauf. |

After the original complaint had been amended, Greyhound answered and filed its cross-claim. Contract Carriers and McCorkhill also answered the amended complaint.

Contract Carriers and McCorkhill filed a letter, pursuant to the district court's order, setting forth the specific allegations relied on in defense of Greyhound's cross-claim. Among these allegations is:

"4. The defendant, The Greyhound Corporation, carelessly and negligently employed and caused its driver, Robert L. Schlagenhauf, to operate said bus upon a public highway, although said Robert L. Schlagenhauf was not mentally or physically capable of operating said bus upon a public highway at the time and place when said accident occurred, which fact was known or should have been known to The Greyhound Corporation."

National Lead also filed its answer to the amended complaint together with an answer to Greyhound's cross-claim. One of the defenses asserted to Greyhound's

321 F.2d 47
cross-claim was that the negligence of the driver of the bus, Schlagenhauf, proximately caused the damages to the bus owned by Greyhound.

National Lead's cross-claim alleged "that the defendant, The Greyhound Corporation acting by and through its said agent * * * and its said employee, Schlagenhauf * * * were guilty of carelessness and negligence in one or more of the following particulars:

* * * * * *
"(8) By permitting said bus to be operated over and upon said public highway by said defendant, Robert L. Schlagenhauf, when both the said Greyhound Corporation and said Robert L. Schlagenhauf knew that the eyes and vision of the said Robert L. Schlagenhauf was (sic) impaired and deficient."

On February 5, 1963, Contract Carriers, McCorkhill, and National Lead filed a joint petition for an order requiring Robert L. Schlagenhauf to submit to a series of mental and physical examinations. The petitions gave the following reasons for such request:

"(1) The defendant, Robert L. Schlagenhauf, was involved in a similar type accident near the town of Flatrock, Michigan, while driving a motorbus for the defendant, Greyhound Corporation.
"(2) The lights of the tractor trailer unit which was struck by the bus driven by the defendant Schlagenhauf, were visible from three-fourths to one-half mile to the rear of said vehicle.
"(3) The defendant Schlagenhauf saw red lights ahead of him for a period of ten to fifteen seconds prior to impact and yet did not reduce speed or alter his course."

The petition further alleged that separate examinations are required by multiple experts because no one expert could examine Schlagenhauf respective to all the conditions which related to his driving ability. In all four examinations were requested.

The district court on February 21, 1963, granted the petition and ordered Schlagenhauf to submit to mental and physical examinations by two named internists, two named ophthalmologists, three named neurologists and two named psychiatrists, despite the fact that only four examinations had been requested.

On March 14, 1963, Contract Carriers, McCorkhill, and National Lead filed supplemental petitions for examinations of Schlagenhauf. These were supplementary to the original petition allegedly because the mental and physical condition of Schlagenhauf became additionally in issue by virtue of National Lead's cross-claim filed subsequent to the petition of February 5.

On March 15, 1963, the district court issued an order (which superseded its February order) granting the supplemental petitions and ordering Schlagenhauf to appear before the nine medical experts for psychiatric and physical examinations. This court stayed the orders pending our disposition of the instant petition for writ of mandamus.

We are mindful of the stringent restrictions that have been placed on the issuance of the writ of mandamus, and its limitation to "the exceptional case where there is clear abuse of discretion or `usurpation of judicial power' * *." Labuy v. Howes Leather, 352 U.S. 249, 257, 77 S.Ct. 309, 314, 1 L.Ed.2d 290 (1957).

In Labuy, the Supreme Court, on certiorari to the Seventh Circuit, in language that we deem pertinent to the instant petition said:

"As this Court pointed out in Los Angeles Brush Corp. v. James, 272 U.S. 701, 706 47 S.Ct. 286, 71 L.Ed. 481 (1927): `* * * Where the subject concerns the enforcement of the * * * rules which by law it is the duty of this Court to formulate and put in force,\' mandamus should issue to prevent such action thereunder so palpably improper as to place it beyond the scope of the rule invoked. As was said there at
321 F.2d 48
page 707, were the Court `* * * to find that the rules have been practically nullified by a district judge * * * it would not hesitate to restrain him. * * *\'" (352 U.S. at 256, 77 S.Ct. at 313).

Certainly the writ is not to be used as a substitute for appeal. Ex parte Fahey, 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947). It should not be availed of to correct mere error in the exercise of conceded judicial power, although it may possibly be used to prevent usurpation of power, if "the lower court is clearly without jurisdiction." Ward Baking Co. v. Holtzoff, 164 F.2d 34, 36 (2nd Cir. 1947). The writ will not issue to permit this court to exercise the discretion entrusted by law to the district court. Fisher v. Delehant, 250 F.2d 265 (8th Cir. 1959); Goldberg v. Hoffman, 226 F.2d 681 (7th Cir. 1955).

Unless we are prepared to say that the district court was without power to enter the Rule 35 discovery order, or that the district court so clearly abused his discretion as to make the equities of this case truly extraordinary, precluding adequate relief by way of appeal, then the writ must and should be denied.

The Supreme Court in Sibbach v. Wilson & Co., Inc., 312 U.S. 1, 61 S.Ct. 422, 89 L.Ed. 479 (1941), settled the question whether Rule 35 abridges substantive rights of a litigant in contravention of the limitations against such abridgment specified in the Rules Enabling Act of June 19, 1934, 28 U.S.C. §...

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6 practice notes
  • American Express Warehousing, Ltd. v. Transamerica Ins. Co., No. 460
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 5 Julio 1967
    ...283 its discretion was not "so clearly abused * * * as to make the equities of this case truly extraordinary," the petition was denied. 321 F.2d 43, 48 (1963). In the Supreme Court, respondent argued that the court of appeals should be affirmed on the ground that mandamus was not an appropr......
  • Schlagenhauf v. Holder, No. 8
    • United States
    • United States Supreme Court
    • 23 Noviembre 1964
    ...to have set aside the order requiring his mental and physical examinations. The Court of Appeals denied mandamus, one judge dissenting, 321 F.2d 43. We granted certiorari to review undecided questions concerning the validity and construction of Rule 35. 375 U.S. 983, 84 S.Ct. 516, 11 L.Ed.2......
  • Stormo v. Strong, No. 17186
    • United States
    • Supreme Court of South Dakota
    • 24 Abril 1991
    ...need for accurate information, the number of examinations ordered by the trial court is to be held to a minimum. Schlagenhauf v. Holder, 321 F.2d 43, 51 (7th Cir.1963), vacated on other grounds, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). In evaluating defendants' need for a second m......
  • Spencer v. Hercules Offshore, Inc., CIVIL ACTION NO: 13-4706
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 28 Abril 2014
    ...8examinations." 8B C. Wright, A. Miller & R. Marcus, Federal Practice and Procedure § 2234 (3d ed. 2010); see Schlagenhauf v. Holder, 321 F.2d 43, 51 (7th Cir. 1963) ("The number of examinations ordered should be held to the minimum necessary considering the party's right to privacy and the......
  • Request a trial to view additional results
6 cases
  • American Express Warehousing, Ltd. v. Transamerica Ins. Co., No. 460
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 5 Julio 1967
    ...283 its discretion was not "so clearly abused * * * as to make the equities of this case truly extraordinary," the petition was denied. 321 F.2d 43, 48 (1963). In the Supreme Court, respondent argued that the court of appeals should be affirmed on the ground that mandamus was not an appropr......
  • Schlagenhauf v. Holder, No. 8
    • United States
    • United States Supreme Court
    • 23 Noviembre 1964
    ...to have set aside the order requiring his mental and physical examinations. The Court of Appeals denied mandamus, one judge dissenting, 321 F.2d 43. We granted certiorari to review undecided questions concerning the validity and construction of Rule 35. 375 U.S. 983, 84 S.Ct. 516, 11 L.Ed.2......
  • Stormo v. Strong, No. 17186
    • United States
    • Supreme Court of South Dakota
    • 24 Abril 1991
    ...need for accurate information, the number of examinations ordered by the trial court is to be held to a minimum. Schlagenhauf v. Holder, 321 F.2d 43, 51 (7th Cir.1963), vacated on other grounds, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). In evaluating defendants' need for a second m......
  • Spencer v. Hercules Offshore, Inc., CIVIL ACTION NO: 13-4706
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • 28 Abril 2014
    ...8examinations." 8B C. Wright, A. Miller & R. Marcus, Federal Practice and Procedure § 2234 (3d ed. 2010); see Schlagenhauf v. Holder, 321 F.2d 43, 51 (7th Cir. 1963) ("The number of examinations ordered should be held to the minimum necessary considering the party's right to privacy and the......
  • Request a trial to view additional results

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