
    Rose Potter, Respondent, v. The Village of Hammondsport, Appellant.
    Fourth Department,
    March 28, 1906.
    Physical examination before trial — Code of Civil Procedure, section 873, strictly construed — woman has right to be examined by physicians of her own sex — discretion of county judge sustained.
    Section 873 of the Code of Civil Procedure, allowing a physical examination before trial, is in abrogation" of the common law securing the inviolability of the person, and should be strictly construed. Hence, when a woman is compelled to submit to a physical examination under the provisions of said section she has a-right to require such examination to be made by physicians of her own sex.
    Moreover, the Appellate Division will sustain the discretion of the county judge in modifying such order by substituting female physicians in the place of male physicians first named.
    Williams and Hash, JJ., dissented, with opinion.^
    Appeal by the defendant," The Tillage of Hammondsport, from an order made by-the county judge of Steuben county, in aii action in the Supreme Court, and entered in the office of the clerk of the county of Steuben on the 14th day of March, 1905, modifying an order theretofore made for the examination of the plaintiff before trial.
    
      Walter S. Drew, for the appellant.
    
      Leverne Thomas and James O. Sebring, for the respondent.
   Kruse, J.:

We all agree that the order appealed from should be modified. There is, however, a division among us respecting the examining physicians and surgeons. The'county judge in his original order named three physicians, one of- whom was a woman., ' Subsequently he modified the order, by striking out these names and naming two Women physicians. It is now proposed that this court shall, strike out the names of these two physicians last appointed and restore the names of the three physicians originally appointed. We think this modification ought not to be made. 1. No good reason exists,.so far as the record discloses, for interfering with the judgment and discretion of the county judge in that regard, and we might well rest our decision ■upon' that ground. 2. It is, however, contended that the county judge made this change because he thought the plaintiff had a legal, right to have the examination made by physicians of her own sex, Assuming that to be true, which seems quite probable, we are still of the opinion that the county judge was right. We think the prm visions-of section 873 of the Code of Civil Procedure, which provides for the physical .examination of a plaintiff at the, instance^of the . -adverse party, entitles a female to have the examination by physicians of her own sex, and "that the phrase “before physicians or surgeons of her own sex ” means that the examination shall be made by them and not merely in their presence. We cannot assent to the view that it was ever intended that a woman should be compelled to expose her person .to a physical examination by physicians and surgeons riot of her own .sex or selection. We are not called upon to give a construction to this provision so literal as to permit this to be done; The information so acquired by the examining physician is not gained' under the ban of secrecy for she does not stand in the confidential relation of patient to the examining physician.

Judge O’Brien, in the case of Lyon v. Manhattan R. Co. (142 N. Y. 298), quotes from the opinion of Mr. Justice Gray delivered in the Supreme Court of the United States in the case of Union Pacific Railway Co. v. Botsford (141 U. S. 250) the following: “ The inviolability of the person is as much inyaded by a compulsory stripping and exposure as, by a blow. To compel any one, 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.”

While section 873 of the Code has changed this rule of the common law, this change should not be extended beyond a -fair and reasonable interpretation of the statute which makes this innovation. Where a woman is compelled to submit to a physical examination under the provisions of this section, wé think she has the right to require such examination to be made by physicians of her own sex. This view, to us, seems reasonable, and does no violence to the language of the statute.

The order appealed from should be modified by (1) striking out the provision for the oral examination of the physicians and surgeons, and (2) by striking out the entire provision limiting the examination of the plaintiff under oath and inserting in place thereof the following: “ Ordered, that the examination of the plaintiff under oath be limited to inquiries as to the nature and extent of the injuries complained of and the place where and the peculiar manner in which the injuries were received, so far as necessary to enable the defendant to ascertain the nature and extent of Such injuries; ” and as so modified the order is affirmed, without costs of this appeal to either party.

All concurred, except Williams and Hash, JJ., who dissented in an opinion by Williams, J.

Williams, J. (dissenting):

The order appealed from should be modified by (1) striking out the provision for taking the examination of the physicians and surgeons ; (2) striking out the names of the examining physicians and surgeons, Emma Stevens Jamison and Mrs. W. B. Proctor, andinserting in place thereof the names of those in the order originally made, George C. McHett, Philo L. Alden and Jennie Lee Kellogg; (3) by striking out the 'whole provision limiting the examination of the plaintiff under oath, and inserting in place thereof the following : “ Ordered, That the examination of the plaintiff, under oath, be limited to inquiries as to the nature and extent of the injuries complained of, and the place where and the peculiar manner in which the injuries were received,” and as so modified the order should be affirmed, without costs.

1. As to the first amendment, there is apparently no controversy. The physicians and surgeons should not be examined before, or their evidence taken by, the referee. Apparently this provision was put, in the order through inadvertence or a misapprehension of the provisions of section 873 <of the Code of Civil. Procedure.

2. As to the second amendment, the change of physicians and surgeons appointed to make the physical examination of tlie plaintiff was: evidently made Upon the ground that the plaintiff was entitled to have the examination made solely by physicians or surgeons of her own-sex. Two of .the persons originally.appointed were men, and one a woman. The county judge erroneously construed the section in this respect. 'She was entitled merely to have the examination ~before, not hy, physicians or surgeons of- her own sex. In addition to appointing ong woman as' an examiner, the original order provided- that the plaintiff might have such women present as .she chose, and in the order-appealed from it was -further provided that the plaintiff might have two physicians and surgeons present of her .own selection. The plaintiff’s lights in this respect were fully protected without changing, the examining physicians and surgeons entirely so that all should be Women. Tio personal objection was made to the three named in the- original order, . except as to their-sex- That order was made ex parte, and we assume the persons named were suggested by the defendant-as such physicians and surgeons as it desired to use as witnesses on the- trial, and to better qualify.them as such witnesses. While the county judge had a discretion as to the persons to be appointed, lie should have treated the defendant fairly and not put it at a disadvantage. The plaintiff could have examination's made whenever she saw fit, and by any ^physician or surgeon she might select. Th‘e order appealed from provides-that she may have two physicians or surgeons of her-own selection present at the examination. It seems to us the defendant should be permitted to have its own physicians or surgeons, the persons it would rely upon, to aid it in the trial, make the examination, providing they are reputable and not personally objectionable to the plaintiff.' A defendant in a negligence action should be -enabled, within reasonable limits, to protect- itself against . any unfounded claim as to.the extent of the injuries received in an - accident. It may turn out that’the claim as to such injuries is well founded, and if so the defendant will be entirely satisfied-, but if it is ’discovered through the medium of the examination and the assistance of the physicians and surgeons of the defendant, that the claim as to injuries is unfounded or greatly exaggerated, then justice will result from the exercise of the power afforded by the provision of the Code in question. The physicians and surgeons, if selected by the judge at the suggestion of the plaintiff, might, from sympathy or otherwise, refuse to disclose to the defendant minutely the results of their examination and elect to make such full disclosure only when called as witnesses on the trial, and thus put the defendant at great disadvantage in preparing its.case for trial and taking the advice of its own physicians and surgeons. We see no reason why the examining physicians and surgeons should have been changed by the order appealed from. It seems to us this change should not have been made. .In this respect the order should be restored to its original condition. If, for any reason, the physicians and surgeons named there cannot serve, others should be substituted who are satisfactory to the defendant, providing always there are no objections to their personal character and standing, in the profession.

3. As to the third amendment, there can be no doubt that the provisions inserted in the order should .be stricken out. They are all wrong.in form and substance. "The original order was unlimited as to the matters about which the plaintiff might be examined "under oath within the issues raised by the pleadings or the allega-' tions in the complaint. The county judge had power to leave the > scope of the examination unrestricted, but wé are inclined in this particular case to think there should be some limitation, and that the examination should not extend to the issues of negligence and contributory negligence, but should only relate to the question" of the extent of the injuries received by the plaintiff in the accident. The language used by ns would accomplish this purpose, and, in order that no technical objection may be raised before the referee, we have said the plaintiff might be inquired of as to the place where the accident occurred and the peculiar manner in which the injuries were received. The place should be reasonably identified and the inquiry made as to what caused the fall, how plaintiff came to fall, the peculiar manner of it. It is said that the claim and the plaintiff’s complaint cover these details, and, therefore, her evidence in connection with her proposed examination is not necessary. While she may be bound, perhaps, by her claim and complaint, the defendant is not bound or foreclosed thereby; and, so far as these things bear-upon the extent of the injuries, in the judgment of the physicians and surgeons .the defendant should have the right thereto in connection With the physical examination.- Our intention is not to permit an. examination of the'plaintiff, under oath,'.as to matters relating purely and only to the issues of negligence and contributory negligence. The real, ultimate object is to acquire information, as to such, personal injuries as were caused by and resulted from the. accident; and to this end the limitation-is as specific as- We could safely make it. ' Merely, permitting the physician's and surgeons'to make a physical .examination of the plaintiff long after the accident would be inadequate as a protection to the defendant. Even if this were supplemented by an examination tinder oath as to her sympr .toms and feelings since the accident, it would be unsatisfactory. It is necessary that it shall appear what the nature of the accident' Was — whether a fall, and if so what kind of a fall, how produced, how it came about. The physicians and surgeons would be likely to desire .information as to this subject, and such information should be under oath, taken by the referee and preserved for future use in the case and on the trial. '

"We conclude^ therefore, the order should be amended as suggested 'and .then affirmed.

Nash, J., concurred.

Order modified- by (1) striking out the provision for the oral examination of the physicians and surgeons, and (2) by striking out the entire provision limiting the examination of the plaintiff under oath, and inserting, in place thereof’ the following :• Ordered, that the examination of the plaintiff under oath -be limited .to 'inquiries -as to the nature and extent of the injuries complained of and the place where and the peculiar manner in which the injuries were received, so far as necessary to enable the defendant to ascertain the nature and extent of such injuries, and as so modified the order -is affirmed, without costs of this appeal to either party.  