
    RUTHERFORD v. ALBEN et al.
    District Court, S. D. West Virginia.
    May 24, 1940.
    
      John E. Jenkins, of Huntington, W. Va., and M. J. Ferguson, of Wayne, W. Va., for plaintiff.
    A. M. Foose, of Huntington, W. Va., for defendants.
   HARRY E. WATKINS, District Judge.

Motion has been made under Rule 35(b) (1), Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c, to require the defendants to furnish plaintiff with a copy of a written report of their physician who examined plaintiff.

It appears that on or about April 1, 1940, plaintiff voluntarily submitted to physical examination, including the taking of X-rays, by a physician selected by defendants. Plaintiff has also been examined by his own physician, and a copy of such physician’s report, together with X-rays taken, have been furnished to defendants.

In voluntarily submitting to physical examination, plaintiff waived his right to an order of the court requiring an examination under Rule 35(a). In doing so, he did not waive his further right to “a copy of a detailed written report of the examining physician setting out his findings' and conclusions” as provided in Rule 35 (b) (1). The motion to require the defendants to furnish such report is sustained.

Defendants have made a motion to require the plaintiff to submit to a second examination by a physician named by them. Such motion is denied. Plaintiff has already submitted to one physical examination, including X-rays, by a physician selected by the defendants, and in addition has furnished defendants with a report of his own physician, including X-rays taken. This should be sufficient to permit defendants to prepare for trial.  