
    LYON v. MANHATTAN RY. CO.
    
      N. Y. Court of Appeals;
    
    
      May, 1894.
    1. Constitutmial law,\ It seems that section 873 of the Code of Civil-Procedure, as amended by L. 1893, c. 721, providing that in an action for personal injuries, the court or judge, in granting an order for the examination of plaintiff before trial, may, if defendant apply therefor, direct that plaintiff submit to a physical examination, enacts a rule of procedure, the purpose of which is the discovery of the truth in respect of certain allegations, which the plaintiff has presented for judicial investigation ; and does not violate any express or implied constitutional restraint upon legislative power.
    2. Depositions; •examination of parties before trial.] That statute does not authorize an order for a mere physical examination apart from and independent of an order for his examination as a witness or a party before trial.
    
    
      3. Statutes; interpretation.] To this statute the rule applies that an original statute with all its amendments must be read together and viewed as one act passed at the same time.
    4. Depositions ; examination of parties before trial.] It seems, that the referee, before whom the physical examination of plaintiff in an action for personal injuries is made, has the power to administer an oath, to take plaintiff’s testimony upon the issue, and to authenticate the proceedings to the court; and that plaintiff is bound to appear before him and answer all proper questions with respect to the nature and extent of the injuries, whether framed by the medical experts from their own examination, or by the counsel present.
    Appeal by the defendant from an order of the General Term of the N. Y. Court of Common Pleas, reversing an order of the Special Term of that- court, directing a physical examination of the plaintiff.
    The action was brought by Agnes S. Lyon, an infant, by her guardian ad litem, John D. Lyon, against the Manhattan Railway Company, to recover damages for personal injuries caused by the alleged negligence of defendant’s servants.,
    
      The Special Term, on defendant’s application, granted the following order : “ Ordered, that on February 28, 1894, at twelve o’clock M., the plaintiff, Agnes S. Lyon, .attend and be examined before Charles A. Deshon, Esq., who is hereby appointed referee for that purpose, at the plaintiff’s residence, No. 129 East 109th Street, in the city of New York, and that the said plaintiff then and there submit to a physical examination in respect to her physical condition, and as to the nature and extent of the injuries alleged in the complaint to have been caused by the negligence of the defendant, which examination shall be conducted by Dr. John A. Wyeth, and Dr. Landon C. Gray, in the presence of such physicians and such women as the plaintiff shall desire to have present, but not in the immediate presence of the referee, unless the plaintiff shall, at the time of such examination, so elect.”
    
      The General Term reversed the order on the ground' that it was not made in connection with, or as part of, an order for the oral examination of the plaintiff before trial..
    
      Julien T. Davies, for appellant.
    
      Nelson Smith, for respondent.
    I. Assuming the con stitutional validity of the statute, chap. 721 of the Laws of 1893, ‘amending §§ 872, 873, of the Code of Civil Procedure, the defendant is’ not entitled to the order for the physical examination of the plaintiff, apart from her examination as a witness, at the instance of the defendant.
    II. In the absence of a statute, it is well settled in this country and in this State, by the decisions of this court and the Supreme Court of the United States, that defendant is not entitled to a physical examination of the person of the plaintiff in an action to recover damages for personal injuries (Citing McQuigan v. Delaware, etc., R. R. Co., 129 N. Y. 50; Union Pac. Ry. Co. v. Botsford, 141 U. S. 250; Roberts v. Ogdensburg, etc., R. R. Co., 29, Hun, 154; Neuman v. Third Ave. R. R. Co., 50 Super. Ct. 412; Sioux City, etc., R. R. Co. v. Finlayson, 16 Neb. 578; Lloyd v. Hannibal, etc., Railroad Co., 53 Mo. 515).
    )III. The order that the plaintiff submit to a physical' examination, and the statute upon which it is - founded,, would violate the rights of the plaintiff, secured by the Federal Constitution, to sue. for injuries she has sustained, and have her case tried (Citing Corfield v. Coryell, 4 Wash. C. C. 380; Slaughter House Cases, 16 Wall. 75; In re Ah Fong, 3 Sawyer, 145; Ward v. Maryland, 12 Wall. 430; Paul v. Virginia, 8 Wall. 168, 180; Gould and Tucker's Notes on U. S. Revised Statutes, 118; Moaks Underhill on Torts, 207; Boyd v. U. S., 116 U. S. 616; 
      Cooley on the Constitution, 4th ed., 715, 716; Smith v. Turner, 7 How. U. S. 283).
    IV. The order directing the physical examination would violate the right of liberty, secured to the plaintiff by art. 14 of the Federal Constitution, and art. 1, § 6, of the State Constitution (Citing People v. Marx, 99 N. Y. 386; Bertholf v. O’Reilly, 74 Id. 515; In re Jacobs, 98 Id. 98).
    V. Assuming that a person may be deprived of the right to sue in the courts by due process of law, we submit that the order directing the physical examination is not due process of law, and is in its nature an extra judicial proceeding (Citing Taylor v. Porter, 4 Hill, 140; Hurtado v. California, no U. S. 521; White v. White, 3 Barb. 481; Roberts v. Ogdensburg R. R. Co., 29 Hun, 158).
    
      
      See next case and note following it..
    
   O’Brien, J.

The complaint in this action alleges that in the month of October, 1892, the plaintiff, a young girl then under age, was a passenger upon one of the defendant’s trains, and that she was seriously injured by reason of a. collision, such injury affecting the spinal column and whole nervous system. These allegations were put in issue by the answer. The defendant obtained an order from one of the judges of the court in which the action was pending, directing the plaintiff to appear before a referee named in the order, at her residence, at a date designated, and then and there submit to a physical examination in respect to the nature and extent of the injuries claimed, to be conducted by two medical experts named, in their presence, and in the presence of such women as she might desire to* have present, but not in the immediate presence of the referee, unless the plaintiff should so elect.

The General Term has reversed this order, and this' appeal brings the questions here for review. The ground upon which the order was reversed is that the defendant was not entitled to an order for such an examination,, except at the time of granting an order for her examination as a witness or a party before the trial, and that a separate physical examination alone is not authorized.

On the argument before us in support of this reversal, the learned counsel for the plaintiff does not rest the case wholly upon the reasons given by the General Term, but attacks the statute as in conflict with the Federal and State Constitutions. He insists that such conflict arises from the fact that the plaintiff is required, as a condition of prosecuting her action in the courts, to expose her person against her will; that the statute in effect deprives her of the sacredness and privacy of her own person, and of her liberty and natural rights and the equal protection of the laws. The argument, though perhaps novel, is not without interest on account of the ideas advanced and the manner of their presentation. In the view we take of the questions involved in the appeal, it will not be necessary to follow the discussion. The statute enacts a rule of procedure, the purpose of which is the discovery of'the truth in respect of certain allegations which the plaintiff has presented for judicial investigation in the courts of justice. It prescribes a method of aiding the court and jury in the correct determination of an issue of fact raised hy the pleadings, and, as it seems to me, does not violate any of the express or implied restraints upon legislative power to be found in the fundamental law.

But, in regard to the meaning and construction of the statute, I think the court below was entirely correct. . The general purpose of the enactment was to change a rule of the common law which had recently been asserted by the highest court and by this court (Union Pacific Railway Co. v. Botsford, 141 U. S. 250; McQuigan v. Delaware, etc., Ry. Co., 127 N. Y. 50).

It is not necessary in this case to insist that the statute should be subjected to a strict construction, but certainly it ought to receive a construction that would make it fair and reasonable in its operation. By chapter 721 of the Laws of 1893, § 873 of the Code of .Civil Procedure was amended by inserting the following provision in the middle of that section :

“ In every action to recover damages for personal injuries, the court or judge, in granting an order for the examination of the plaintiff before trial, may, if the defendant apply therefor, direct that the plaintiff submit to a physical examination by one or more physicians or surgeons to be designated by the court or judge, and such examination shall be had and made under such restrictions and directions as to the court or judge shall seem proper.
“ In every action brought to recover damages for personal injuries, where the defendant' shall present to the court or judge satisfactory evidence that he is ignorant of the nature and extent of the injuries complained of, the court or judge shall order that such physical examination be made.”

The learned counsel for the plaintiff contends that ■under the section as now amended, the physical examination is not authorized apart from or independent of the-examination before trial; while the learned counsel for the ■defendant contends that the second clause of the' amendment provides for a mere physical examination, distinct and apart from the other words of the amendment, and from the preceding or subsequent sections of the Code. In other words, he separates this clause from the rest of the section, and from the other section relating to examinations of parties, and insists that it contains within itself everything necessary to its execution as an independent enactment. I take it to be a settled rule of statutory -construction that an original statute with all its amendments must be read together md viewed as one act passed at the same time (Goldman v. Kennedy, 49 Hun, 157). No part of the original or the amendment is to be held inoperative if they can all be made to stand and work: together. I assume that had § 873, as now amended, been-originally enacted in its present form, no one would claim' that it should then receive the construction now claimed in behalf of the defendant; and yet we should read it and1 the other sections on the same subject as if they had been passed in this present form at the same time.

But the most serious objection to the defendant’s construction is, that under it, it would be utterly impossible to attain the end which the Legislature had in view, and it would, in fact, defeat every practical and useful object sought to be accomplished. The section, as amended,, provides that the examination shall be had before the judge or a referee, and a referee was actually appointed in. the order and the plaintiff directed to appear before him.. For what purpose ? If the defendant’s construction be-correct, he could not administer an oath to anyone, nor ask a single question, nor make any report of the proceeding. He could not even be present at the examination unless the plaintiff required it. The plaintiff might stand mute, and no one could compel her to answer a single question put by the medical experts, or anyone else. The experts are not required to reduce anything to writing, or make any report to the court, and no provision is-made for a record by anyone. All the defendant can get from the proceeding upon this construction is an opportunity to have two physicians inspect the plaintiff’s person as to any external marks or symptoms of injury or disease, for the purpose of enabling them to testify at the trial, it may be years afterwards. The defendant’s counsel cannot even know- in advance of the trial what testimony the experts can give, whether for or against him, unless, after an appointment by the court, they should volunteer to disclose to him the result of their observation, and this might not be regarded as entirely proper on their part, as they were in some sense officers of the court, or, at all events, impartial as between the parties, a character that they should preserve in order to give to their testimony much weight at the trial, so that when the proceedings are finished, practically nothing has been accomplished. The parties have not advanced much in the process of discovering where the truth is. They are, for all practical purposes, just where they started.

Moreover, how is it possible for medical experts to make a physical examination in a case like this, or, indeed, in any case, by merely observing the external marks or indications of personal injury or disease? The term itself implies not only such observation, but an inquiry by means of questions and answers as to the cause, nature, character and extent of the disability. Mere external appearances are, in themselves, of no consequence unless-identified and connected with the accident as the cause, and hence, disclosures such as ordinarily occur between patient and physician must necessarily accompany the inspection of the injured parts. It is clear, I think, that such an examination as the statute contemplates can never be obtained under the defendant’s construction. It must be held that the Legislature intended to enact some useful and practical rule in the administration of justice, that would promote the discovery of truth and not to do a vain thing.

In order to reach this simple and just result,'all we need do is to read the amendment as a part only of the general scheme prescribed by the Code for the examination of parties before trial. In order to give even color to the other view it must be detached from the context and from all its surroundings, and read as if it stood alone, in disregard of settled rules of construction. Not only that, but we must reject provisions of the same section, of the plainest import, as wholly inapplicable to this particular examination. The statute has in terms provided that the physical examination shall be procured in the same way and as part of an. examination of the party before trial, and in that way only can the object and purpose of the amendment ever be attained. This construction gives effect to every word of the section as amended, and is in harmony with the sections immediately preceding and following it. Then the referee becomes something more than a mere spectator at an idle ceremony. He may take the plaintiff’s testimony upon the issue and report to the court. He has, of course, power to administer an oath and to authenticate the proceedings, and the plaintiff is bound to appear before him and answer all proper questions with respect tb the nature and extent of the injuries, whether framed by the medical experts from their own examination, or by the counsel present. It becomes a fair struggle for truth, and both parties may participate. The record of the examination is placed on file, and both sides know what must be met if it is introduced in evidence, as it may be. The statute upon this construction might be a valuable accéssion to the rules for administering justice, and not an instrument to be used by one party to surprise his antagonist at the trial, or, in some cases, possibly himself. That this is the fair and reasonable, and, indeed, the necessary construction of the section as it now stands, I cannot doubt. Moreover, the other view would, in the end, be most unfortunate for the defendant and parties situated as the defendant is. We know that in actions of this character brought by women against corporations, considerations sometimes influence the jury, other than those growing out of the law and the facts applicable to the case. When facts are found upon conflicting evidence and damages assessed, the accuracy of the mental process upon which the jury acted cannot ordinarily be reviewed. It is not desirable to increase the chances of injustice by adding new elements that are liable to be used at the trial against corporations in this class of actions. Mr. Justice GRAY, in the Supreme Court of the United States, in the case of Union Pacific Railway Co. v. Botsford [supra), remarked that “ The in.violability 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.” This amendment has changed the law, but it is not so certain that it will ever change the general sentiment of mankind which was expressed in that remark. The power conferred by the amendment should never be used in such a way as to leave any doubt as to the fairness and good faith of the proceeding, otherwise it may prove to be a sword instead of a shield. It should be a fair and open inquiry after truth, in which both sides .are or may be participants. If it is used only for the purpose of enabling the defendant to prepare expert witnesses to give testimony at the trial, it will be hardly possible to keep the fact from the jury, and it is easy enough to see how such an element in the case might be used to excite sympathy, stimulate prejudices, and in some cases possibly to enhance damages.

The order appealed from should be affirmed, with costs.

All the judges concurred except Earl, Finch and Bartlett, JJ., dissenting.

Order affirmed. 
      
      In 1894 the following clause was added: “ And if the party to be examined shall be a female, she shall be entitled to have such «examination before physicians or surgeons of her own sex ”
     