
    Michael McQuigan, Resp’t, v. The Delaware, Lackawanna & Western R. R. Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 1, 1891.)
    
    Negligence—Supreme court no power to order physical examination OF PLAINTIFF.
    The supreme court has no power in advance of the trial of an action for a personal and physical injury to compel the plaintiff on an application made on behalf of the defendant to submit to a surgical examination of his person by surgeons appointed by the court with a view of enabling them to testify on the trial as to the existence and extent of the alleged injury.
    Appeal from order of the supreme court, general term, fourth department, affirming order denying motion to require plaintiff to submit to a personal examination.
    
      Lewis Marshall, for app’lt; Andrew Hamilton, for resp’t.
    
      
       Affirming 38 St. Rep., 1021.
    
   Andrews, J.

The sole question presented by this record is whether the supreme court has power in advance of the trial of an action for a personal and physical injury to compel the plaintiff on an application made in behalf of the defendant to submit to a surgical examination of his person by surgeons appointed by the court with a view of enabling them to testify on the trial as to the existence and extent of the alleged iujury. The question is not new in the courts, although so far as we know it was first presented in 1868, before a judge of the New York superior court, at special term, in the case of Walsh v. Sayre, 52 How. Pr., 334, who affirmed the existence of the power. The contrary was held by the general term of the third department in Roberts v. Ogdensburgh & L. C. R. R. Co., 29 Hun, 154.

In 1877, the supreme court of Iowa in the case of Schroeder v. Chicago, etc., Railway, 47 Iowa, 375, sustained the doctrine that the court had an iulicrent jurisdiction to grant a compulsory order that the plaintiff submit to such examination, and this decision has been followed by the courts of several of the Western and Southern states and in others the power has been denied.

The same question was considered in the United" States supreme court in the recent case of Union Pacific Railroad Co. v. Botsford, 141 U. S., 250, decided in May, 1891, and the court (two judges dissenting) decided adversely to the claim that the court had power to compel such examination. The opinions of the several courts which have been passed upon the question present very fully the considerations bearing upon it. We concur in the view taken by the supreme court of the state and the supreme court of the United States, and we can add very little to the full discussion to be found in the opinions of those courts.

The powers of courts are either statutory or those which appertain to them by force of the common law, or they are partly statutory and partly derived from immemorial usage, which latter constitutes their inherent jurisdiction. They are organized for the protection of public and private rights and the enforcement of remedies. Presumptively, therefore, whatever judicial procedure is essential to enable courts to exercise their function is authorized. The maxim that there is no right without a remedy, justified the courts in the earlier periods of the common law in inventing writs and modes of procedure adapted to present for adjudication in proper form every question of judicial cognizance. The powers and jurisdiction of the courts of common law and chancery in England are to be found in the English statutes and in the rules, precedents, decisions and procedure of the courts. The power which the courts actually exercised, supplemented by statutory powers, constitutes in a general sense their jurisdiction.

Upon the organization here of the federal and state governments courts were constituted, and in this state they succeeded to the powers theretofore exercised by the courts of law and chancery in England, so far as they were applicable to our situation. It is a significant fact that not a trace can be found in the decisions of the common law courts of England, either before or since the Eevolution, of the exercise of a power to compel a party to a personal action to submit his person to examination at the instance of the other party. If the power existed it is difficult to suppose that it would not have been frequently invoked. Actions for assault and battery, for injuries arising from negligence, and generally for personal torts, were among the most common known to the law, and yet, so far as we can discover, in no case was it supposed or claimed that the court was armed with this jurisdiction. The non-exercise of a power is not conclusive against its existence, but it is inconceivable that if the power in question existed it should have been unused for centuries and never have been called into activity.

In two cases cited by Justice Gray in his opinion in Union Pacific Railway Company v. Bostford, supra, the court of common bench in England refused an order for the inspection of a building on the application of the plaintiff in an action for work and labor performed by him thereon on the ground of want of power. Newham v. Tate, 1 Arnold, 244; Turquand v. Strand Union, 8 Dow. P. C. 201. These cases tend to negative the existence of the power in the English courts claimed for our courts in the case at bar. The only authority in the English common law courts in any degree analogous is found in the power which the courts of England have occasionally, though rarely, exercised, to issue on the application of apparent heirs the writ de ventre suspiciendo, to compel a widow claiming to be with child by her deceased husband to submit her person to examination. The practice in England is sui generis and has never been adopted here. It may have originated in the peculiar favor shown to heirs by the law of England, but whatever its origin it seems repugnant to common right, and the fact that in this instance only have the courts of England exercised the power to compel the examination of the person in a civil proceeding tends to show that the power is not there regarded as general, but special and peculiar, and limited to the particular case.

The doctrine of the cases in chancery, Briggs v. Morgan, 2 Hagg. Cons. Ct., 324; Devanbagh v. Devanbagh, 5 Paige, 554; Newell v. Newell, 9 id., 25, that in an action to procure a decree of nullity of marriage on the ground of impotence or sexual incapacity, the chancellor may compel the defendant to submit to a surgical examination, is a graft from the civil and common law, and, as has been said, “ rests upon the interest which the public as well as the parties have in the question of upholding or dissolving the marriage state, and upon the necessity of such evidence to enable the court to exercise its jurisdiction.” Gray, J., in Union Pacific Railway Company v. Botsford, supra.

When we examine the history of the power of common law courts to compel the production and inspection of books and papers in possession of the opposite party in a civil action, we find that originally the courts disclaimed any power in the mattter and the remedy by bill of discovery was the only resource of the party desiring such discovery. Finally the common law courts assumed a limited equitable jurisdiction over the subject, and in addition to the rule that a party pleading a deed should make forfeit of the instrument which enabled the other party to demand oyer, the courts by order compelled a party who in his pleading relied upon a written instrument, not a deed, to give inspection to the other party, if required, and so in other special cases. The courts in this state, prior to any statute, exercised a limited equitable jurisdiction of the same character. Lawrence v. Ocean Ins. Co., 11 Johns., 245; Denslow v. Fowler, 2 Cow., 592, note. But this limited jurisdiction was exercised sparingly, and with hesitation, and it was not until statutes were enacted in England and in this state conferring upon common law courts the same power to compel the discovery and inspection of books and papers which was exercised by courts of chancery on bills of discovery, that courts of common law claimed or exercised full power over the subject. St. 14 and 15 Viet., chap. 99; St. 17 and 18 Viet, chap. 125 ; Rev. St, 199, § 21. The limited jurisdiction exercised by these courts before the statute was in the nature of a usurpation, and so far as we can discover it was never considered that they possessed an inherent power in aid of justice to grant relief in cases outside of the narrow limit mentioned. The power to compel an inspection of books and papers relevant to the controversy, in possession of either party, is of a similar nature to that invoked in the present case, and if the inherent power of the court did not extend to the one case, it is difficult to suppose that it embraced the other. The power to compel a party to submit to an examination of his person has never been conferred by any statute.

The provisions of the Revised Statutes authorizing the court to compel the production of books or papers have been reenacted in the Codes of Procedure. The statutes also contain specific provisions for the examination of a party on oath before trial, at the instance of the other party. The omission in these statutes of any reference to the power now under consideration is -quite significant We cannot say that the exercise of the power claimed might not in some cases promote the cause of justice and prevent the consummation of fraud. On the other hand, unless ■carefully guarded, it would be subject to grave objections.

But we have to deal only with the question of the power of the courts, in the absence of any legislation. It is very clear that the power is not a part of the recognized and customary jurisdiction of courts of law or equity. The doctrine that courts have an inherent jurisdiction to mould the proceedings to meet new conditions and exigencies is true, but in a limited sense. They cannot, under cover of procedure or to accomplish justice in a particular case, invade recognized rights of person or property. Mo court, we suppose, can abrogate an established rule of evidence, as, for example, the rule that hearsay evidence is inadmissible, or the rule of the common law that parties shall not be witnesses, or "that interest disqualifies. They may apply existing rules to new circumstances. Mor is it, we conceive, within the power of the ■court to create remedies unknown to the common law, or institute a procedure not according to the course of the common law. It is most important that courts should proceed under the sanction of an orderly and regulated jurisdiction, and that as little as possible should be left to the discretion of a judge. The exercise by the court of the power now invoked, as has been shown, is not sanctioned by any usage in the courts of England or of this state. Its existence is not indispensable to the due administration of justice. Its exercise, depending on the discretion of the judge, would be subject to great abuse. We think the assumption by the court of this jurisdiction, in the absence of statute authority, would be an arbitrary extension of its powers. It is a just inference that an alleged power which has lain dormant during the whole period of English jurisprudence, and never attempted to be exercised in America until within a very recent period, never in fact had any existence.

We have purposely omitted to repeat the views and authorities upon this question set forth in the opinions in Roberts v. Ogdensburgh R. R. Co., and in Union Pacific Railway Co. v. Botsford, and we refer to those opinions for a fuller discussion of the grounds upon which the denial of the power claimed proceeds. The order should be affirmed.

All concur.  