A court of the United States cannot order a plaintiff in an
action for an injury to the person, to submit to a surgical
examination in advance of the trial.
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
"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
Page 141 U. S. 251
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 on 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.Com. 8; Sunbolf
3 M. & W. 248, 253-254;
Page 141 U. S. 252
Mack v. Parks,
8 Gray 517; Maxham v. Day,
The inviolability of the person is as much invaded by a
compulsory stripping and exposure as by a blow. To compel anyone,
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, 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
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
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.Com. 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 141 U. S. 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.Con. 324, 3 Phillimore 325;
Devanbagh v. Devanbagh,
5 Paige 554; Le Barron v. Le
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.Com. 456;
Bac.Ab. "Bastard, A." In cases of that class, the writ has been
issued in England in quite recent times. In re Blakemore,
14 Law Journal (N.S.) 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
So far as the books within our reach show, no order to inspect
the body of a party in a personal action 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 most analogous cases in England that have come under our
notice are two in the common bench, in each of which an order for
the inspection of a building was asked for in an action for work
and labor done thereon, and was refused for want of power in the
court to make or enforce it.
In one of them, decided in 1838, counsel moved for an order that
the plaintiff and his witnesses have a view of the building, and an
inspection of the work done thereon, and stated that
Page 141 U. S. 254
the object of the motion was to prevent great expense, to
obviate the necessity of calling a host of surveyors, and to avoid
being considered trespassers. Thereupon one of the judges said,
"Then you are asking the court to make an order for you to commit a
trespass," and Chief Justice Tindal said:
"Suppose the defendants keep the door shut; you will come to us
to grant an attachment. Could we grant it in such a case? You had
better see if you can find any authority to support you, and
mention it to the court again."
On a subsequent day, the counsel stated that he had not been
able to find any case in point, and therefore took nothing by his
motion. Newham v. Tate,
1 Arnold 244, 6 Scott 574.
In the other case, in 1840, the court discharged a similar
"The order, if valid, might, upon disobedience to it, be
enforced by attachment. Then it is evidently one which a judge has
no power to make. If the party should refuse so reasonable a thing
as an inspection, it may be a matter of argument before the jury,
but the court has no power to enforce it."
Turquand v. Strand Union,
8 Dowl. 201, 4 Jurist 74.
In the English Common Law Procedure Act of 1854, enlarging the
powers which the courts had before and authorizing them, on the
application of either party, to make an order
"for the inspection by the jury, or by himself, or by his
witnesses, of any real or personal property, the inspection of
which may be material to the proper determination of the question
the omission to mention inspection of the person is significant
evidence that no such inspection, without consent, was allowed by
the law of England. Taylor on Ev. (6th ed.) §§ 502-504.
Even orders for the inspection of documents could not be made by
a court of common law until expressly authorized by statute, except
when the document was counted or pleaded on or might be considered
as held in trust for the moving party. Taylor on Ev. §§ 1588-1595;
1 Greenleaf on Ev. § 559.
In the case at bar, it was argued that the plaintiff in an
action for personal injury may be permitted by the court, as
Page 141 U. S. 255
in Mulhado v. Brooklyn Railroad,
30 N.Y. 370, to
exhibit his wounds to the jury in order to show their nature and
extent, and to enable a surgeon to testify on that subject, and
therefore may be required by the court to do the same thing, for
the same purpose, upon the motion of the defendant. But the answer
to this is that anyone may expose his body, if he chooses, with a
due regard to decency and with the permission of the court, but
that he cannot be compelled to do so in a civil action without his
consent. If he unreasonably refuses to show his injuries when asked
to do so, that fact may be considered by the jury as bearing on his
good faith, as in any other case of a party declining to produce
the best evidence in his power. Clifton v.
4 How. 242; Bryant v.
24 Penn.St. 314; Turquand v. Strand Union,
In this country, the earliest instance of an order for the
inspection of the body of the plaintiff in an action for a personal
injury appears to have been in 1868, by a judge of the Superior
Court of the City of New York in Walsh v. Sayre,
How.Pract. 334, since overruled by decisions in general term in the
same state. Roberts v. Ogdensburgh & Lake Champlain
29 Hun. 154; Neuman v. Third Avenue
18 Jones & Spencer 412; McSwyny v. Broadway
27 N.Y. State Reporter 363. And the power to make
such an order was peremptorily denied in 1873 by the Supreme Court
of Missouri, and in 1882 by the Supreme Court of Illinois. Loyd
v. Hannibal & St. Joseph Railroad,
53 Mo. 509; Parker
102 Ill. 272.
Within the last fifteen years, indeed, as appears by the cases
cited in the brief of the plaintiff in error, *
a practice to
Page 141 U. S. 256
such orders has prevailed in the courts of several of the
western and southern states, following the lead of the Supreme
Court of Iowa in a case decided in 1877. The consideration due to
the decisions of those courts has induced us fully to examine, as
we have done above, the precedents and analogies on which they
rely. Upon mature advisement, we retain our original opinion that
such an order has no warrant of law.
In the State of Indiana, the question appears not to be settled.
The opinions of its highest court are conflicting and indecisive.
Kern v. Bridwell,
119 Ind. 226, 229; Hess v.
122 Ind. 225, 233; Terre Haute & Indianapolis
Railroad v. Brunker,
26 N.E. 178. And the only statute which
could be supposed to bear upon the question simply authorizes the
court to order a view of real or personal property which is the
subject of litigation, or of the place in which any material fact
occurred. Indiana Rev.Stat. 1881, c. 2, § 538.
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.
The Constitution, in the Seventh Amendment, declares that in all
suits at common law where the value in controversy shall exceed
twenty dollars, trial by jury shall be preserved. Congress has
"The mode of proof in the trial of actions at common law shall
be by oral testimony and examination of witnesses in open court,
except as hereinafter provided,"
and has then made special provision for taking depositions.
Rev.Stat. §§ 861, 863 et seq.
The only power of discovery
or inspection conferred by Congress is to
"require the parties to produce books or writings in their
possession or power which contain evidence pertinent to the issue
in cases and under circumstances where they might be compelled to
produce the same by the ordinary rules of proceeding in
and to nonsuit or default a party failing to comply with such an
order. Rev.Stat. § 724. And the provisions of § 914, by which the
practice, pleadings, and forms and modes of proceeding in the
courts of each state are to be followed in
Page 141 U. S. 257
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. Nudd
v. Burrows, 91 U. S. 426
91 U. S. 442
Indianapolis & St. Louis Railroad v. Horst,
93 U. S. 291
93 U. S. 300
Ex Parte Fisk, 113 U. S. 713
Chateaugay Iron Co., Petitioner, 128 U.
, 128 U. S.
In Ex Parte Fisk,
just cited, the question was whether
a statute of New York permitting a party to an action at law to be
examined by his adversary as a witness in advance of the trial was
applicable after an action begun in a court of the state had been
removed into the circuit court of the United States. It was argued
that the object of § 861 of the Revised Statutes of the United
States was to provide a mode of proof on the trial, and not to
affect this proceeding in the nature of discovery, conducted in
accordance with the practice prevailing in New York. 113 U.S. 717
[argument of counsel -- omitted]. But this Court, speaking by Mr.
Justice Miller, held that this was a matter of evidence, and
governed by that section, saying:
"Its purpose is clear to provide a mode of proof in trials at
law, to the exclusion of all other modes of proof. . . . It is not
according to common usage to call a party in advance of the trial
at law and subject him to all the skill of opposing counsel to
extract something which he may use or not as it suits his purpose.
. . . Every action at law in a court of the United States must be
governed by the rule or by the exceptions which the statute
provides. There is no place for exceptions made by state statutes.
The court is not at liberty to adopt them, or to require a party to
conform to them. It has no power to subject a party to such an
examination as this."
113 U.S. 113 U. S.
So we say here. 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. The circuit
court, to adopt the words of Mr. Justice Miller, "has no power to
subject a party to such an examination as this."
Page 141 U. S. 258
* Schroeder v. Chicago &c. Railway,
47 Ia. 375;
Miami &c. Turnpike Co. v. Baily,
37 Ohio St. 104;
Atchison, Topeka & Santa Fe Railroad v. Thul,
466; White v. Milwaukee Railway,
61 Wis. 536; Hatfield
v. St. Paul & Duluth Railroad,
33 Minn. 130; Stuart v.
17 Neb. 211; Owens v. Kansas City &c.
95 Mo. 169; Sibley v. Smith,
46 Ark. 275;
Missouri Pacific Railroad v. Johnson,
72 Tex. 95;
Richmond & Danville Railroad v. Childress,
82 Ga. 719;
Alabama &c. Railroad v. Hill,
90 Ala. 71.
MR. JUSTICE BREWER, with whom concurred MR. JUSTICE BROWN,
MR. JUSTICE BROWN and myself dissent from the foregoing opinion.
The silence of common law authorities upon the question in cases of
this kind proves little or nothing. The number of actions to
recover damages, in early days, was, compared with later times,
limited, and very few of those difficult questions as to the nature
and extent of the injuries which now form an important part of such
litigations were then presented to the courts. If an examination
was asked, doubtless it was conceded without objection as one of
those matters the right to which was beyond dispute. Certainly the
power of the courts and of the common law courts to compel a
personal examination was, in many cases, often exercised and
unchallenged. Indeed, wherever the interests of justice seemed to
require such an examination, it was ordered. The instances of this
are familiar, and in those instances the proceedings were, as a
rule, adverse to the party whose examination was ordered. It would
be strange that if the power to order such an examination was
conceded in proceedings adverse to the party ordered to submit
thereto, it should be denied where the suit is by the party whose
examination is sought. 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. There is here no inquiry as to the extent to
which such an examination may be required, or the conditions under
which it may be held, or the proper provisions against oppression
or rudeness, nor any inquiry as to what the court may do for the
purpose of enforcing its order. As the question is presented, it is
only whether the court can make such an order.
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
Page 141 U. S. 259
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. It seems strange that a plaintiff may, in the
presence of a jury, be permitted to roll up his sleeve and disclose
on his arm a wound of which he testifies, but when he testifies as
to the existence of such a wound, the court, though persuaded that
he is perjuring himself, cannot require him to roll up his sleeve,
and thus make manifest the truth, nor require him, in the like
interest of truth, to step into an adjoining room and lay bare his
arm to the inspection of surgeons. It is said that there is a
sanctity of the person which may not be outraged. We believe that
truth and justice are more sacred than any personal consideration,
and if in other cases, in the interests of justice or from
considerations of mercy, the courts may, as they often do, require
such personal examination, why should they not exercise the same
power in cases like this, to prevent wrong and injustice?
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
imprisons 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.
For these reasons we dissent.