This was an action brought in the Circuit Court of the United
States for the District of New Jersey against a railway company for
an alleged injury to the plaintiff caused by the neglect of the
railway company while the plaintiff was a passenger on one of its
cars.
Held that that court had the legal right or power,
under the statute of New Jersey and the United States Revised
Statutes, to order a surgical examination of the plaintiff.
This case comes here upon a certificate from the Circuit Court
of Appeals for the Third Circuit, under the act of 1891, chapter
517, § 6, 26 Stat. 826. The action was brought in the Circuit Court
of the United States for the District of New Jersey by the
plaintiff against the railway company to recover damages for an
alleged injury to his person caused by the neglect of the defendant
while the plaintiff was a passenger on one of defendant's cars. At
the time that he brought suit, plaintiff was a citizen of the State
of Pennsylvania, the railway company being a corporation of the
State of New Jersey. The alleged neglect and injury occurred on the
13th day of July, 1896, in the City of Camden, in the State of New
Jersey, and at that time the plaintiff was a citizen of that
state.
On the 12th of May, 1896, the Legislature of New Jersey passed
and the governor approved an act which reads as follows:
"1. On or before the trial of any action brought to recover
damages for injury to the person, the court before whom such action
is pending may, from time to time, on application of any party
therein, order and direct an examination of the person injured, as
to the injury complained of, by a competent physician or
physicians, surgeon or surgeons, in order to qualify the person or
persons making such examination, to testify in the said cause
Page 177 U. S. 173
as to the nature, extent, and probable duration of the injury
complained of, and the court may in such order direct and determine
the time and place of such examination; provided, this act shall
not be construed to prevent any other person or physician from
being called and examined as a witness as heretofore."
When the case was called for trial on March 31, 1898, and after
a jury had been impaneled, but before the case was opened to the
jury, the defendant's counsel asked in open court that the
plaintiff should submit himself to examination by a competent
surgeon. The plaintiff would not consent, and the court held that
it had no power to order the plaintiff to subject himself to
examination by physicians against his will, and it therefore
refused to make the order asked for by counsel for the defendant,
who was thereupon allowed an exception to the ruling. The trial
proceeded and resulted in a verdict and judgment for the plaintiff.
The defendant brought the case by writ of error before the circuit
court of appeals, and that court, desiring the instruction of this
Court upon the matter, made the foregoing statement and ordered the
following questions to be certified here:
"1. Is the above-recited statute of the State of New Jersey, the
Act of May 12, 1896, applicable to an action to recover damages for
injury to the person brought and tried in the Circuit Court of the
United States for the District of New Jersey?"
"2. Is said statute applicable to an action to recover damages
for injury to the person brought and tried in the Circuit Court of
the United States for the District of New Jersey, where the injury
occurred in the State of New Jersey, and both the plaintiff and the
defendant at the time of the injury were citizens of that
state?"
"3. Had the circuit court the legal right or power to order a
surgical examination of the plaintiff? "
Page 177 U. S. 174
MR. JUSTICE PECKHAM, after stating the facts, delivered the
opinion of the Court.
An answer to the third question, "Had the circuit court the
legal right or power to order a surgical examination of the
plaintiff?" -- will be all that is necessary for the action of the
court below.
It is settled in this Court that no power to make such an order
exists at common law -- in other words, the court has no inherent
power to make it.
Union Pacific Railway v. Botsford,
141 U. S. 250. In
that case, there was no statute of the state in which the United
States court was held which authorized the order. There is no
intimation in the opinion that a statute of a state directly
authorizing such examination would be a violation of the federal
Constitution, or invalid for any other reason.
In this case, we have such a statute, and by section 721 of the
Revised Statutes of the United States it is provided that
"the laws of the several states, except where the Constitution,
treaties, or statutes of the United States otherwise require or
provide, shall be regarded as rules of decision in trials at common
law in courts of the United States, in cases in which they
apply."
Does not this statute of the state apply in trials at common law
in the United States courts sitting in the state where the statute
exists?
The case before us is a common law action; it is one to recover
damages for a tort, which is an action of that nature. It was being
tried in the state which enacted the statute, and the court was
asked to apply such statute to the trial of an action at common
law.
Neither the Constitution, treaties, nor statutes of the United
States otherwise require or provide. The statute concerns the
evidence which may be given on a trial in New Jersey, and it does
not conflict with any statute of the United States upon that
subject. It is not a question of a general nature, like the law
merchant, but simply one concerning evidence based upon a local
statute applicable to actions brought within the state to recover
damages for injury to the person. The statute comes
Page 177 U. S. 175
within the principle of the decisions of this Court holding a
law of the state of such a nature binding upon federal courts
sitting within the state.
Swift v. Tyson,
16 Pet. 1,
41 U. S. 18;
Nichols v.
Levy, 5 Wall. 433;
Watson v.
Tarpley, 18 How. 517,
59 U. S. 520;
Ex Parte Fisk, 113 U. S. 713.
It was held in
United States v.
Reid, 12 How. 361, that the provision of the law of
Congress did not extend to criminal offenses against the United
States, for that would be to give to the states the power of
prescribing the rules of evidence in trials for offenses against
the United States. It was said, however, that the section was
intended to confer upon the courts of the United States the
jurisdiction necessary to enable them to administer the laws of the
states.
We are not aware of any reason why this law of the state does
not apply to courts of the United States under the section of the
Revised Statutes above quoted. There is no claim made that the
statute violates the federal Constitution, and we are of opinion
that such a claim would have no foundation, if made.
Counsel for plaintiff refers in his argument to the opinion in
the
Botsford case, where it is stated (at page
141 U. S.
256), that the question is one which is not governed by
the law or practice of the state in which the trial is had, but
that it depends upon the power of the national courts under the
Constitution and laws of the United States, and he argues therefrom
that the state statute is immaterial, and can furnish no foundation
for the exercise of the power by the federal court. We do not
dispute that if there were no law of the United States which, in
connection with the state law, could be referred to as in effect
providing for the exercise of the power, the court could not grant
the order under the decision in the case of
Botsford. But
we say there is a law of the United States which does apply the
laws of the state where the United States court sits, and where the
state has a law which provides for the making of an order for the
examination of the person of a plaintiff in a case like this, the
law of the United States applies that law to cases of such a nature
on trial in federal courts sitting in that state. In the
Botsford case, there was no state law, and consequently no
foundation for the application of the law of the United States.
Page 177 U. S. 176
In
Ex Parte Fisk, 113 U. S. 713, the
statute of the State of New York, in relation to the examination of
parties before trial, was held to be in conflict with the act of
Congress providing for the examination of witnesses in courts of
the United States, and was therefore inapplicable in those courts,
but the statute in this case is not in conflict with any statute of
the United States. It does not conflict with section 861 of the
Revised Statutes, providing for the oral examination of witnesses
in open court. On the contrary, whatever information may be
obtained by the surgeon who examines the plaintiff under the
statute in question can be availed of only by the defendant's
producing the witness and examining him in open court, or by
deposition, if he come within the exception mentioned in section
863 and the following sections.
The validity of this statute has been affirmed by the Supreme
Court of New Jersey in
McGovern v. Hope, 42 A. 830, to
appear in 63 N.J.L. The opinion of the court was delivered by Mr.
Justice Depue, and the court held that the act was within the power
of the legislature, and was not an infringement upon the
constitutional rights of the party.
The validity of a statute of this nature has also been upheld in
Lyon v. Manhattan Railway Company, 142 N.Y. 298, although
the particular form of that statute would probably be regarded as
conflicting with the law of Congress in relation to the examination
of a party as a witness before trial, and hence might not be
enforced in courts of the United States sitting within the State of
New York, but the validity of a statute providing for the
examination of the person of a plaintiff in an action to recover
for injuries is upheld and declared not to be in violation of the
constitutional rights of the party.
The citizenship of the plaintiff at the time of the injury is
not material so long as the court below has jurisdiction of the
case and the parties at the time of the commencement of the
action.
In those states in which it has been held that the court has
inherent power to order the examination of a plaintiff in this
class of action without the aid of a statute, all has been said
that could be urged in favor of such power on grounds connected
with public policy and the due and proper administration of
Page 177 U. S. 177
justice by the courts. This Court has taken another view of the
subject in the decision of
Botsford's case, above cited.
But by reason of the statute of New Jersey, in which state this
action was brought, there being no law of Congress in conflict
therewith, we hold that the courts of the United States therein
sitting have the power, under the statute and by virtue of section
721 of the Revised Statutes of the United States, to order the
examination of the person of the plaintiff, and we therefore answer
the third question of the court below in the affirmative, and
It will be so certified.
MR. JUSTICE HARLAN dissented.
