PHYSICAL EXAMINATION. The ques tion as to whether, and under what circum stances, courts will permit the physical ex amination of litigants and of persons ac cused of crime, and also of property in liti gation, has been much mooted. A physical examination of a woman under the writ of de ventre inspieientfo was known to the com mon law under special circumstances. See JURY OF WOMEN. This early practice has been urged as a precedent for permitting a physical examination in certain civil and criminal cases.
In Union Pacific R. Co. v. Bottsford, 141 U. S. 250, 11 Sup. Ct. 1000, 35 L. Ed. 734, the question was the right of a federal court to order a surgical examination of the plaintiff, in an action of tort. Mr. Justice Gray re ferred to the common-law writ of de ventre inspieiendo in capital cases, and also in civil cases involving the rightful succession to property of a decedent against fraudulent claims of bastards, and said that the learn ing and research of counsel for the plain tiff In error (John F. Dillon) had "failed to produce an instance of its even having been considered in any part of the United States as suited to the habits and condi tions of the people." He added that "so far as the books within our reach show, no order to inspect the body in a personal ac tion appears to have been made or even moved for, in any of the English courts of common law, at any period of their history." The ruling of the court below, refusing such an examination, was sustained. See, also, Pennsylvania Co. v. Newmeyer, 129 Ind. 401, 28 N. E. 860; McQuigan v. R. Co., 129 N. Y. 50, 29 N. B. 285, 14 L. R. A. 466, 26 Am. St. Rep. 507; Illinois Cent. R. Co. v. Griffin, 80 Fed. 278, 25 C. C. A. 413; Parker v. Enslow, 102 III. 272, 40 Am. Rep. 588.
That the court has no inherent power to order a physical examination is held in Camden & S. R. Co. v. Stetson, 177 U. S. 172, 20 Sup. Ct. 617, 44 L. Ed. 721; Larson v. Salt Lake City, 34 Utah, 318, 97 Pac. 483, 23 L. R. A. (N. S.) 462; May v. R. Co., 32 Mont. 522, 81 Pac. 328, 70 L. It A. 111, 4
Anna Cas. 605. That trial courts have the inherent power to order a medical examina tion by experts of the person of a plaintiff seeking a recovery for personal injuries, if the examination is applied for and made be fore entering upon the trial, is held in West ern Glass Mfg. Co. v. Schoeninger, 42 Colo. 357, 94 Pac. 342, 15 L. R. A. (N. S.) 663, 126 Am. St. Rep. 165; Wanek v. Winona, 78 Minn. 98, 80 N. W. 851, 46 L. R. A. 448, • 79 Am. St. Rep. 354; Harvey v. Traction Co., 26 W. N. C. (Pa.) 231; South Bend v. Tur ner, 156 Ind. 418, 60 N. E. 271, 54 L. R. A. 396, 83 Am. St. Rep. 200; Brown v. R. Co., 12 N. D. 61, 95 N. W. 153, 102 Am. St. Rep. 564; see Larson v. Salt Lake City, 34 Utah, 318, 97 Pac. 483, 23 L. R. A. (N. S.) 462. After the right had been denied in New York, a statute was passed ; but it has been held that such an 'act will be strictly con strued; Goldenberg v. Zirinsky, 114 App. Div. 827, 100 N. Y. Supp. 251; Bowe v. Brunnbauer, 13 Misc. 631, 34 N. Y. Supp. 919 ; Potter v. Hammondsport, 112 App. Div. 91, 98 N. Y. Supp. 186. Where they so provide, they will not be extended to com pel answers to questions ; 16 P. R. (Ont.) 496. See also 14 id. 171.
The New Jersey act providing for such examination was held binding on a federal court; Camden & S. It. Co. v. Stetson, 177 U. S. 172, 20 Sup. Ct. 617, 44 L. Ed. 721.
The question whether a court has at com mon law the power to compel a plaintiff in an action for a personal injury to submit to a surgical examination, is a matter of prac tice and not of evidence, and as a matter of practice relating to the power of courts, neither state statutes nor the decisions of state courts on the subject are binding on federal courts under R. S. § 721, providing that, with certain exceptions, the laws of the several states shall be regarded as rules of decisions in trials at common law in such courts, which, as to such matters are govern ed by the decisions of the supreme court of the United States ; Chicago & N. W. Ry. Co.