Union Pac Ry Co v. Botsford

CourtUnited States Supreme Court
Writing for the CourtGRAY
Citation35 L.Ed. 734,11 S.Ct. 1000,141 U.S. 250
PartiesUNION PAC. RY. CO. v. BOTSFORD
Decision Date25 May 1891

141 U.S. 250
11 S.Ct. 1000
35 L.Ed. 734
UNION PAC. RY. CO.
v.
BOTSFORD.
May 25, 1891.

In error to the circuit court of the United States for the district of Indiana.

The original action was by Clara L. Botsford against the Union Pacific Railway Company for negligence in the construction and care of an upper berth in a sleeping-car in which she was a passenger, by reason of which the berth fell upon her head, bruising and wounding her, rupturing the membranes of the brain and spinal cord, and causing a concussion of the same, resulting in great suffering and pain to her in body and mind, and in permanent and increasing injuries. Answer, a general denial. Three days before the trial (as appeared by the defendant's bill of exceptions) 'the defendant moved the court for an order against the plaintiff, requiring her to submit to a surgical examination in the presence of her own surgeon and attorneys, if she desired their presence; it being proposed by the defendant that such examination should be made in manner not to expose the person of the plaintiff in any indelicate manner, the defendant at the time informing the court that such examination was necessary to enable a correct diagnosis of the case, and that without such examination the defendant would be with out any witnesses as to her condition. The court overruled said motion, and refused to make said order, upon the sole ground that this court had no legal right or power to make and enforce such order.' To this ruling and action of the court the defendant duly excepted, and after a trial, at which the plaintiff and other witnesses testified in her behalf, and which resulted in a verdict and judgment for her in the sum of $10,000, sued out this writ of error.

Page 251

John F. Dillon, for plaintiff in error.

A. C. Harris, for defendant in error.

Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court.

The single question presented by this record is whether in a civil action for an injury to the person, the court, on application of the defendant, and in advance of the trial may order the plaintiff without his or her consent, to submit to a surgical examination as to the extent of the injury sued for. We concur with the circuit court in holding that it had no legal right or power to make and enforce such an order. 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. As well said by Judge Cooley: 'The right to one's person may be said to be a right of complete immunity; to be let alone.' Cooley, Torts, 29. For instance, not only wearing apparel, but a watch or a jewel, worn on the person, is, for the time being, privileged from being taken under distress for rent, or attachment on mesne process or execution for debt, or writ of replevin. 3 Bl. Comm. 8; Sunbolf v. Alford, 3 Mees, & W. 248, 253, 254;

Page 252

Mack v. Parks, 8 Gray, 517; Maxham v. Day, 16 Gray, 213. 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 it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass; and no order of process, commanding such an exposure or submission, was ever known to the common law in the administration of justice between individuals, ecep t 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 a ware, introduced into this country. In former times, the English courts of common law might, if they saw fit, try by inspection or examination, without the aid of a jury, the question of the infancy or of the identity of a party; or, on an appeal of mayhem, the issue of mayhem or no mayhem; and, in an action of trespass for mayhem, or for an atrocious battery, might after a verdict for the plaintiff, and on his motion, and upon their own inspection of the wound, super visum vulneris, increase the damages at their discretion. In each of those exceptional cases, as Blackstone tells us, 'it is not thought necessary to summon a jury to decide it,' because 'the fact, from its nature, must be evident to the court, either from ocular demonstration or other irrefragable proof;' and therefore, 'the law departs from its usual resort, the verdict of twelve men and relies on the judgment of the court alone.' The inspection was not had for the purpose of submitting the result to the jury, but the question was thought too easy of decision to need submission to a jury at all. 3 Bl. Comm. 331-333. The authority of courts of divorce, in determining a question of impotence as affecting the validity of a marriage, to order an inspection by surgeons of the person of either party, rests upon the interest which the public, as well as the parties, have in the question of upholding or dissolving the marriage state, and upon the necessity of such evidence to enable the court to

Page 253

exercise its jurisdiction, and is derived from the civil and canon law, as administered in spiritual and ecclesiastical courts, not proceeding in any respect according to the course of the common law. Briggs v. Morgan 2 Hagg. Coust. 324, 3 Phillim. Ecc. 325; Devanbagh v. Devanbagh, 5 Paige, 554; Le Barron v. Le Barron 35 Vt. 365. The writ de ventre inspiciendo, to ascertain whether a woman convicted of a capital crime was quick with child, was allowed by the common law, in order to guard against the taking of the life of an unborn child for the crime of the mother.

The only purpose, we believe, for which the like writ was allowed by the common law, in a matter of civil right, was to protect the rightful succession to the property of a deceased person against fraudulent claims of bastards, when a widow was suspected to feign herself with child in order to produce a supposititious heir to the estate, in which case the heir or devisee might have this writ to examine whether she was with child or not, and, if she was, to keep her under proper restraint till delivered. 1 Bl. Comm. 456; Bac. Abr. 'Bastard, A.' In cases of that class, the writ has been issued in England in quite recent times. In re Blakemore, 14 Law J. Ch. 336. But the learning and research of the counsel for the plaintiff in error have failed to produce an instance of its ever having been considered, in any part of the United States, as suited to the habits and condition of the people. So far as the books within our reach show, no order to inspect the body of a party in a...

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541 practice notes
  • Stull v. School Board of Western Beaver Jr.-Sr. HS, No. 71-1674.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • April 13, 1972
    ...`The right to one\'s person may be said to be a right of complete immunity; to be let alone.\'" Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 However, the principal question raised by the courts which have refused to interfere with school regula......
  • Pope v. United States, No. 18272.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 14, 1967
    ...court possessed no power in a civil case to order a plaintiff to submit to a pre-trial physical examination. Union Pac. R. v. Botsford, 141 U.S. 250, 257, 11 S.Ct. 1000, 35 L.Ed. 734 (1891). The result was otherwise in a diversity case where an authorizing state statute existed. Camden & Su......
  • Ammend v. Bioport, Inc., No. 5:03-CV-031.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • March 31, 2004
    ...807, 812, 127 L.Ed.2d 114 (1994). The right to bodily integrity has long been recognized. See Page 871 Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891) (holding that "[n]o right is held more sacred, or is more carefully guarded by the common law, t......
  • Kallstrom v. City of Columbus, No. 96-3853
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 12, 1998
    ...free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pac. Ry. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891). Although threats to personal security usually arise in the context of government-imposed punishme......
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536 cases
  • Stull v. School Board of Western Beaver Jr.-Sr. HS, No. 71-1674.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • April 13, 1972
    ...right to one\'s person may be said to be a right of complete immunity; to be let alone.\'" Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 However, the principal question raised by the courts which have refused to interfere with school regula......
  • Pope v. United States, No. 18272.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 14, 1967
    ...court possessed no power in a civil case to order a plaintiff to submit to a pre-trial physical examination. Union Pac. R. v. Botsford, 141 U.S. 250, 257, 11 S.Ct. 1000, 35 L.Ed. 734 (1891). The result was otherwise in a diversity case where an authorizing state statute existed. Camden &......
  • Ammend v. Bioport, Inc., No. 5:03-CV-031.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • March 31, 2004
    ...807, 812, 127 L.Ed.2d 114 (1994). The right to bodily integrity has long been recognized. See Page 871 Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891) (holding that "[n]o right is held more sacred, or is more carefully guarded by the common l......
  • Kallstrom v. City of Columbus, No. 96-3853
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 12, 1998
    ...free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pac. Ry. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891). Although threats to personal security usually arise in the context of government-imposed pun......
  • Request a trial to view additional results
6 books & journal articles
  • Pregnancy’s Risks and the Health Exception in Abortion Jurisprudence
    • United States
    • Georgetown Journal of Gender and the Law Nbr. XXII-1, October 2020
    • October 1, 2020
    ...U.S. 165 (1952); Jacobson v. Massachusetts, 197 U.S. 11, 24–30 (1905)). 142. Casey, 505 U.S. at 926 (quoting Union Pac. R. Co. v. Botsford,141 U.S. 250, 251 (1891)). 143. Christyne L. Neff, Woman, Womb, and Bodily Integrity, 3 YALE J.L. & FEMINISM 327 (1991); see also Brief for Constitution......
  • Valuing the Vulnerable: A Proposed Approach to Cyclical Competency.
    • United States
    • Missouri Law Review Vol. 87 Nbr. 2, March 2022
    • March 22, 2022
    ...restrictions of his detention do not amount to punishment, or otherwise violate the Constitution."). (97) Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891) ("No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the posses......
  • REPRODUCTIVE INDETERMINACY AND RIGHTS DISCOURSE IN FROZEN EMBRYO DISPUTES.
    • United States
    • Columbia Journal of Gender and Law Vol. 42 Nbr. 1, December 2021
    • December 22, 2021
    ...Courtney Megan Cahill, Obergefell and the "New" Reproduction, 100 MINN. L. REV. HEADNOTES 1, 6 (2016). (274) Union Pac. Ry. v. Botsford, 141 U.S. 250 (275) Id. (276) Id. at 251. (277) Id. at 252. (278) Anita L. Allen, Undressing Difference: The Hijab in the West, 23 BERKELEY J. GENDER L. &a......
  • FOURTH AMENDMENT INFRINGEMENT IS AFOOT: REVITALIZING PARTICULARIZED REASONABLE SUSPICION FOR TERRY STOPS BASED ON VAGUE OR DISCREPANT SUSPECT DESCRIPTIONS.
    • United States
    • William and Mary Law Review Vol. 63 Nbr. 5, April 2022
    • April 1, 2022
    ...all restraint or interference of others, unless by clear and unquestionable authority of law." (quoting Union Pac. R.R. Co. v. Botsford, 141 U.S. 250, 251 (176.) Id. at 21. (177.) Id. at 27. (178.) See id. (179.) See, e.g., supra note 125 and accompanying text. (180.) For example, a discrep......
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