The measurement in the presence of the jury of a woman's foot and her leg six inch es above the ankle, in a suit for injuries to the foot and ankle, must be permitted by the court when there is a direct conflict as to such measurement by the medical men called by the respective parties,-at least if the witness herself does not object; Hall v. Manson, 99 Ia. 698, 68 N. W. 922, 34 L. R. A. 208.
The better practice seems to be to apply to the party to be examined, before trial, for permission to make the examination, and upon his refusal, to present a motion for leave, by affidavit, showing the refusal, and also the probability that the examination will result in some material disclogure. The party applying for the order for examination should also offer to pay the expense of such examination; Richmond & D. R. Co. v. Chil dress, 82 Ga. 719, 9 S. E. 602, 3 L. R. A. 808.
14 Am. St. Rep. 189. In practice, some courts order a private physical examination of a party to be made by a physician, who may then testify in regard thereto at the trial of the cause.
A physical examination, if made, must be made by physicians agreed upon by the parties or selected by the court, care being taken to prevent danger to life, pains of body, or any indignity to the person ; Schroed er v. R. Co., 47 Ia. 375 ; Miami & M. T. Co. v. Bally, 37 Ohio St. 104; McGovern v. Hope, 63 N. J. L. 76, 42 Atl. 830 ; Lane v. R. Co., 21 Wash. 119, 57 Pac. 367, 46 L. R. A. 153, 75 Am. St. Rep. 821.
Where an order for physical examination is made, the court will enforce it by refusing to try the cause until it is complied with ; Hess v. R. Co., 7 Pa. Co. Ct. Rep. 565 ; by dismissing the action, or refusing to allow the plaintiff to give evidence to establish his injury ; Miami & M. T. Co. v. Baily, 37 Ohio St. 104; or by striking out and with drawing from the consideration of the jury the allegations relative to his injury, or punishing him for contempt ; Schroeder v. R. Co., 47 Ia. 375; Hatfield v. R. Co., 33 Minn. 130, 22 N. W. 176, 53 Am. Rep. 14. A refusal to submit to a physical examination, if the court to prosecute his claim will be very strong evidence against the person refusing ; Kinney v. Springfield, 35 Mo. App. 97; and may be considered by the jury as reflecting on his good faith; Union P. R. Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct. 1000, 35 L. Ed. 734.
Upon an appeal of mayhem where the is sue joined is whether it is mayhem or no mayhem, it will be decided by the court up on inspection with the assistance of sur geons, if desired; 3 Bla. Com. 332.
In criminal proceedings there is no power to undress and medically examine the person of a prisoner, without his consent, although such examination might further the ends of justice ; 13 Cox, C. C. 625. It is error for a court to require a person on trial for mur der to exhibit his leg at the place where it was amputated, although a certain material fact may be established thereby ; State v. Garrett, 71 N. C. 85, 17 Am. Rep. 1. Where a prisoner refused to make a print of his foot in a pan of soft earth in order that the witnesses for the prosecution might testify as to similarity of such tracks with those found at the scene of the crime, the court said it was optional with the accused, who refused, and upon conviction a new trial was granted; Stokes v. State, 5 Baxt. (Tenn.) 619, 30 Am. Rep. 72; contra, Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595. A woman indicted for the murder of her illegitimate child refused to allow physicians selected by the coroner to examine whether she had re cently been delivered of a child, and upon being threatened, yielded. The court ruled out the testimony of the physicians upon the ground that no person shall, in any criminal case, be compelled to be a witness against himself; People v. McCoy, 45 How. Pr. Y.) 216.
On the other hand, it has been held not to be error to compel the defendant to ex hibit tattoo marks on his body, to the ex istence of which a witness had testified; State v. Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530 ; or to compel the accused to make his footprints in an ash heap, and to allow the prosecution to show that they corresponded with those found at the scene of the crime; Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595 ; or for an officer to compel the ac cused to put his foot in print found at the place where the crime was committed and at the trial testify to the result of the com parison ; State v. Graham, 74 N. C. 646, 21 Am. Rep. 493; Blackwell v. State, 67 Ga. 76, 44 Am. Rep. 717; and it is held that the state has power in a prosecution for rape to order an examination by a physician of the vagina of the prosecutrix; People v. Pres ton, 19 Cal. App. 675, 127 Pac. 660.
See INCRIMINATION; JURY of WOMEN; PRI VACY ; VIEW.