State ex rel. Parmenter v. Troup

• Decision Date: 01 May 1915
• Docket Number: 18930
• Citation: 152 N.W. 748,98 Neb. 333
• Parties: STATE, EX REL. MILDRED PARMENTER, RELATOR, v. A. C. TROUP, DISTRICT JUDGE, RESPONDENT
• Court: Nebraska Supreme Court

152 N.W. 748

98 Neb. 333

STATE, EX REL. MILDRED PARMENTER, RELATOR, v. A. C. TROUP, DISTRICT JUDGE, RESPONDENT

No. 18930

Supreme Court of Nebraska

May 1, 1915

Original proceeding in mandamus to compel respondent to reinstate a case. Writ denied.

WRIT DENIED.

John O Yeiser, for relator.

W. H Herdman, contra.

OPINION

SEDGWICK, J.

The relator began an action in the district court for Douglas county to recover damages for personal injuries caused, as she alleged, by the negligence of the defendant in that action. After issue was joined, the defendant therein asked for an order that the plaintiff be required to submit her person to an examination by physicians to be appointed for that purpose. The court made the order, and the plaintiff refused to comply with it, and the court therefore dismissed her case without prejudice to another action. The plaintiff then applied to this court for a writ of mandamus against the judge who made the order requiring him to reinstate her case.

The first objection is that mandamus is not the proper remedy in such case. The common law writ of prohibition is abolished in this state, but the duty is still imposed upon this court to prevent violation of law by inferior tribunals, and, when there is no adequate remedy by the ordinary course of the law, mandamus is the appropriate remedy. State v Graves, 66 Neb. 17, 92 N.W. 144. The plaintiff is entitled to a trial of her alleged cause of action upon its merits. She believes that the law is that she is entitled to such trial without submitting to the indignity to which she so strongly objects. If she is found to be wrong as to her rights in this regard, she may elect to submit to this requirement rather than to forego her claim entirely. An appeal from this order of dismissal, even if determined in her favor, might result in such delay as to practically defeat her action. Under such circumstances appeal is not an adequate remedy. This objection therefore must be overruled.

The relator contends that the trial court has no power under any circumstances to order a party to submit his or her person to expert examination. In her brief she says: "We waive all other questions, and counsel for the clients interested in sustaining such an order, who of such necessity represents defendant, waives all collateral questions excepting the assertion of such a power." It is seldom that this court is called upon to determine a question of more importance or upon which there is so clear and determined difference of opinion among the courts of last resort in the several states. Each side of the controversy is ably supported by cogent and exhaustive reasoning of the many courts which have considered it. The supreme court of the United States has been divided upon the question, and has convincingly presented both sides of the controversy in an opinion and a dissenting opinion. Union P. R. Co. v. Botsford, 141 U.S. 250, 35 L.Ed. 734, 11 S.Ct. 1000, which was decided in 1891. In general, the opinions of that court declaring principles of the common law are followed with confidence by this court. The majority opinion was prepared by Mr. Justice Gray, the dissenting opinion by Mr. Justice Brewer, and concurred in by Mr. Justice Brown. In the majority opinion it is said: "No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. * * * The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow. To compel any one, and especially a woman, to lay bare the body, or to submit to the touch of a stranger, without lawful authority, is an indignity, an assault and a trespass; and no order or process, commanding such an exposure or submission, was ever known to the common law in the administration of justice between individuals, except in a very small number of cases, based upon special reasons, and upon ancient practice, coming down from ruder ages, now mostly obsolete in England, and never, so far as we are aware, introduced into this country" [152 N.W. 749] --with further strong reasoning and copious citations of authorities. The opinion also contains this language: "But this is not a question which is governed by the law or practice of the state in which the trial is had. It depends upon the power of the national courts under the constitution and laws of the United States." Although the opinion concludes with the statement that "the order moved for, subjecting the plaintiff's person to examination by a surgeon, without her consent and in advance of the trial, was not according to the common law, to common usage, or to the statutes of the United States," still the statement that the federal courts are not given this power by the constitution or laws of the United States tends to relax the authority which this opinion otherwise would have as a precedent to be followed by the courts of the several states. It will also be observed that the proposition, strongly stated in this opinion, that the act of congress, which provides that "the practice, pleadings and forms and modes of proceeding in the courts of each state are to be followed in actions at law in the courts of the United States held within the same state, neither restricts nor enlarges the power of these courts to order the examination of parties out of court," has been overruled by later decisions of that court. Camden & S. R. Co. v. Stetson, 177 U.S. 172, 44 L.Ed. 721, 20 S.Ct. 617. This later decision is now followed by the inferior federal courts. Chicago & N. W. R. Co. v. Kendall, 167 F. 62.

Mr. Justice Brewer, in the dissenting opinion, says: "In this country the decisions of the highest courts of the various states are conflicting. This is the first time it has been presented to this court, and it is, therefore, an open question. * * * The end of litigation is justice. Knowledge of the truth is essential thereto. It is conceded, and it is a matter of frequent occurrence, that in the trial of suits of this nature the plaintiff may make in the courtroom, in the presence of the jury, any not indecent exposure of his person to show the extent of his injuries; and it is conceded, and also a matter of frequent occurrence, that in private he may call his personal friends and his own physicians into a room, and there permit them a full examination of his person, in order that they may testify as to what they see and find. In other words, he may thus disclose the actual facts to the jury if his interest require; but by this decision, if his interests are against such a disclosure, it cannot be compelled." This language is followed by further reasoning which is worthy of careful examination. Some of the further reasoning of Mr. Justice Brewer we desire to adopt, and therefore quote as follows: "It is not necessary, nor is it claimed, that the court has power to fine and imprison for disobedience of such an order. Disobedience to it is not a matter of contempt. It is an order like those requiring security for costs. The court never fines or imprison for disobedience thereof. It simply dismisses the case, or stays the trial until the security is given. So it seems to us that justice requires, and that the court has the power to order, that a party who voluntarily comes into court alleging personal injuries, and demanding damages therefor, should permit disinterested witnesses to see the nature and extent of those injuries in order that the jury may be informed thereof by other than the plaintiff and his friends, and that compliance with such an order may be enforced by staying the trial, or dismissing the case." While the courts of last resort of nearly a dozen of the states of the Union have refused to indorse this reasoning, and have given reasons of undoubted force and clearness for such refusal, the courts of at least 20 of the states have reached the conclusion of Mr. Justice Brewer. The reasoning of these several courts upon either side of this question is so comprehensive and complete as to make it unnecessary for us to enter upon an extensive discussion.

The supreme court of North Dakota said: "If a court is powerless, in a case like this, to require a...