
    WUNSCH v. WEBER.
    
      N. Y. Court of Common Pleas,
    
    
      before CLARENCE F. Birdseye, Esq., Referee;
    
    April, 1894.
    1. Depositions; examination of parties before iriali] Upon a reference for the physical examination of plaintiff, before trial, in an. action for personal injuries, the physician appointed to make the examination will be allowed to ask plaintiff such questions as may be necessary to enable him as a physician to ascertain and report fully upon the nature and extent of the injuries complained of.
    
    :2. The same; function of the expert^ The physician is to be regarded as serving the court and not either of the parties, and his examination should be full and complete as well as impartial.
    Physical examination of. plaintiff before trial in an •action for personal injuries.
    Action brought by Frederick Wunsch against Louis Weber and Edward Weber.
    
      R. Dulany Whiting, for plaintiff.
    
      Charles C. Nadal, for defendants.
    
      
      See preceding case, and note at the end of this case.
    
   Clarence F. Birdseye, Esq., Referee,

upon overruling plaintiff’s objection to the witness being asked any ■question by the doctor, referee or defendants’ attorney, as being irrelevant, immaterial, and not coming within the scope and purport of the order of reference, rendered the ■following opinion

The amendment to §§ 872 and 873 of the Code of Civil Procedure, under which this examination is taken, authorizes an entirely new procedure in actions to recover ■damages for personal injuries, and, so far as I can ascertain, the. practice upon such an examination has never been determined. As this objection goes to the foundation of the whole examination and the method of conducting it, it is proper to state the rules which, it seems to me, should •govern the taking of the testimony.

The examination is had under §§ 872 and 873 of the -Code of Civil Procedure, as amended by chapter 721 of the Laws of 1893. Section 872 is amended by inserting an subd. 4 thereof, which relates to the statements of the affidavit to be made in obtaining an order for the ■examination, the following words: “ And if the action is to recover damages for personal injuries, that the defendant is ignorant of the nature and extent of such personal injuries.” Section 873 is amended by adding after the second sentence thereof the following words: ■“ 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 any 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.”

These amendments seem to materially enlarge the •scope of an examination of an opposing party before trial if, indeed, they do not authorize an entirely new procedure in such cases.

As frequently happens where statutes have been amended so as to materially enlarge their scope or incorporate into them new subjects, the engrafting of this amendment upon the former provisions of the Code has not been very artistically done, and considerable is left for judicial construction as to the exact meaning of the .statute. In arriving at such construction, it is necessary to consider the law as it stood and the words of the .amendment itself.

In the first place this amendment becomes part of ■art. 1 of title 3 of chap. 9 of the Code of Civil Procedure. The chapter relates to evidence, and art. 3 to depositions taken and to be used within the State, and § 871 prescribes that the article as a whole is to apply to the depositions provided for, including those for the examination of parties before trial.

The amendment to § 873 seems to be in two parts. The first sentence provides that: “ In every action to recover damages for personal injuries, the court or judge 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.” This seems to be simply an additional point on which, and a new way in which, the plaintiff can-be examined in an ordinary examination before trial, and this sentence of the amendment appears to provide that on such an examination the plaintiff may be questioned as to any of the matters covered by the law as it formerly stood, and may also be physically examined by one or more physicians to be appointed by the court. The second sentence of the amendment, however, covers a case like the present, where the defendant presents satisfactory evidence to the court or judge “ that he is ignorant of the nature and extent of the injuries complained of,” Under this second sentence it is evident that such matters only-as are necessary to ascertain “ the nature and extent of the injuries complained of" can be inquired into.

This statute, which is somewhat blind, is to be construed by the ordinary rules, and it becomes necessary first to ascertain and give eff zt to thedntent of the law makers; second, to .so construe the statute as to give effect to all parts of it; and third, to so construe the amendment as to make it of some practical effect, and not nugatory.

It is evident that the intent of the Legislature was that the physical examination should disclose “ the nature and extent of the injuries,” for these words appear in the amendment to each section. The examination is to be made by a thoroughly disinterested and competent physician to be appointed by the court and not nominated by the parties (§ 873). This amendment seems to authorize the appointment of a new form of court officer, who, like a referee appointed under this article of the Code, is directly responsible to the court and not to the- parties.. As the examination is for the benefit of the court and for the use of either party upon the trial (Code Civ. Pro., § 881), it should be full and complete, as well as impartial. We are all aware that a physician or surgeon cannot make a complete and thorough physical examination, especially of diseases or injuries to the internal organs, without asking of the patient his various symptoms. This must be especially so in the case of a physician or surgeon- who is called in a long time after the injury has occurred, and who, from the nature of the case, had no opportunity to study himself the symptoms of the patient at the time of and immediately after the injury. If a physician is not to ascertain these symptoms and weigh them in the light of his professional knowledge, his examination would not be of materially more value than ' that of a layman. Certainly, this amendment is not to be so construed as thu s to render it nugatory at the very threshold of the inquiry.

I shall, therefore, overrule the objection so far as it relates generally to any oral examination, and will give the plaintiff a general exception upon which -he may raise the question of the right of the physician to ask orally any questions ; and I instruct Dr. Speir that he will be allowed to ask such questions as in his opinion are necessary to enable him as a physician to ascertain and report fully upon “ the nature and extent of the injuries complained of ” in the complaint. If any of his questions are objected to as not material, relevant or competent to enable him to ascertain the nature and extent of the injuries, I will pass separately upon' such questions when the objection is taken.

[Under this ruling the physician was allowed, against objection, to ask the plaintiff how long since the injury occürred, what happened, how he was immediately -affected by the blow, how large a wound was made, how long he was in the hospital, whether any operation was performed, and what symptoms he now. complained of, and to apply the test of a dynamometer, an sesthesiometer and an ophthalmoscope, and to examine the heart, pulse and temperature.]

[The interrogatories of the physician and the plaintiff’s answers thereto were taken down as a part of the deposition and the whole signed and sworn to by the plaintiff, and appended thereto was a certificate of the physician stating in detail the result of his examination, and his opinion “that Frederick Wunsch has had a compound fracture of the skull with depression of the bone and that he is at present suffering from the shock and the results •of that injury,” and this certificate was signed by the physician and sworn to before a notary, but not authenticated by the referee.]

Note on Physician's Examination of Person Before TRIAL.

The result of these two cases taken together seems tobe ' that the physician appointed by the court is a quasi judicial officer owing his duty solely to the court by which he is appointed, and authorized not merely to make a physical inspection and manual and instrumental tests, but also to put such inquiries to the party under examination as in his judgment (subject to correction by the referee), are neces.sary or proper to enable him to ascertain and report fully upon the nature and extent of the injuries complained of. It is plain that the questions which he may desire to put for this purpose may include some which could not be put to the plaintiff by his own counsel, and others that the defendants’ counsel would not desire himself to put on the part of the defense. The theory indicated "by the opinion of the •referee in Wunsch v. Weber is that the physician stands in a relation to the investigation such as that which the judge himself occupies, in a case where, by reason of there being an infant party, or suspicion of collusion, or other sufficient cause, he proceeds sua sponte to examine a witness in his own manner to get out the truth clearly without deferring to the wishes or policy of counsel on either side. The limits within which this may be done have not been very authoritatively determined, and there is some difference of opinion as to the legal effect of evidence thus brought out by a judge, in respect to the right of either party to follow with cross-examination, or to assign error in the putting of questions, the admitting of answers and a refusal to strike out. The better opinion is, that this power is inherent in the court as the result of the judicial oath to administer justice ; and that the measure of its exercise is to be sought in the necessity of recourse to it to prevent injustice.

The opinion of the Court of Appeals in the Lyon case expressly establishes the right of counsel to examine the party, and as the physician’s examination is only allowable as a part of the oral examination, it would seem that counsel have the same right to interrogate the party that they had under the statute previously, and it appears to follow that they have the right to complete this interrogation so far as it tends to make clear the nature and extent of the injuries, before the physician should make up his opinion and settle the terms of the report. His opinion ought to be based not merely upon his own physical examination and his own questions, incidental thereto, but also should take into -view 'any facts relevant to his report brought out by other questions by either of the respective counsel. At least, this view is in harmony with the doctrine that the physical examination now added is added as part of the oral examination previously authorized.

The statute does not expressly provide for the manner in which the result of the physician s investigation is to be brought before the court. It does not direct that he make, ■as was done in the case of Wunsch v. Weber, a written report to be annexed as a part of the deposition; nor does it contain any express provision allowing his report, if he make one, to be read in evidence. On the other hand, it does not direct that he be sworn as a witness upon the trial. If he is to be regarded as an official witness, forming an expert opinion upon what is brought before him, in order that he may testify to the results, there should be a right of cross-examination either before his report is concluded, or by his production as a witness at the trial, so that he may be subject to cross-examination there. If this is the proper view, it would not necessarily follow that his. cross-examination could extend beyond the subjects of his opinion"; for all personal questions of ability and fitness might perhaps be deemed foreclosed by his selection by the-court. If he is to be regarded as a judicial officer to whom the question of fact in relation to physical injury is referred for determination as distinguished from a witness giving an opinion subject to cross-examination, then we have the-anomaly of an unsworn officer substituted in the place of the jury as to a part of the issues, without any express, statute making his report conclusive or even competent evidence.

In considering these and kindred questions which may * arise in practice under the statute, reference may well be had to the contemporaneous amendment of § 836, which provides that “ In an action for the recovery of damages for a personal injury, the testimony of a physician or surgeon attached to any hospital, dispensary or other charitable institution as to information which he acquired in attending a patient in a professional capacity, at such hospital,, dispensary, or other charitable institution, shall be taken before a referee appointed by a judge of the court in which such action is pending ; provided, however, that any judge of such court at any time in his discretion may, notwithstanding such deposition, order that a subpcena issue for the attendance and examination of such physician or surgeon upon the trial of the action further provisions being added which make the statute of depositions applv to such an examination.

The general opinion will doubtless be that this physical examination is no part of the trial, and that an ex parte report of the physician is not made competent evidence ; but that, on the other hand, the object of the statute is simply to allow a prompt inspection and interrogation of the sufferer to be made by an expert in order to qualify him as a witness' upon the trial.  