5

themselves as to the propriety of a physician's treatment by personal inspection. And the exhibition of sections or portions of the human body, though not in itself evidence, may be permitted in the discretion of the court, where it might serve to illustrate a purpose, and assist the jury in understanding expert testimony; and the rule is the same with reference to an exhibition of the bones of deceased persons. And the exhibition to the jury of a human skull, for the purpose of explaining the nature of an injury, is not objectionable. Nor is an X-ray photograph, taken by a physician having skill as such, and in taking such photographs, showing a fracture or other injury, proved to be an accurate representation of the condition in question, incompetent. And such exhibitions are not subject to objection that they tend to excite sympathy or prejudice. And the exhibition of a weapon or instrument which the evidence tends to show caused the injury is competent; and so is the exhibition of surgical instruments by which an operation was performed.10

7

But refusal to permit a section of the human body to be exhibited was not an abuse of the discretion, where it was of doubtful utility and offensive in its nature and the testimony was reasonably intelligible in itself.11 And an exhibition of an injury to the jury in an action for damages therefor should not be permitted, if not made for

to the jury engraved plates of parts of the human body, and parts of skeleton, in order to illustrate his testimony in describing the wounds, for the purpose of rendering his testimony more intelligible. State v. Knight, 43 Me. 11.

Carstens v. Hanselman, 61 Mich. 426, 1 Am. St. Rep. 606, 28 N. W. 159.

But the principle that a jury must not be permitted to decide a case on their private knowledge only excludes evidence which is not produced at the trial, and is not violated by the exhibition of the injured leg of the plaintiff to the jury in an action for damages for a personal injury. Hiller v. Sharon Springs, 28 Hun, 344.

'Knowles v. Crampton, 55 Conn. 336, 11 Atl. 593.

"State v. Wieners, 66 Mo. 13; Williams v. Nally, 20 Ky. L. Rep. 244, 45 S. W. 874.

"McNaier v. Manhattan R. Co. 22 N. Y. S. R. 840, 4 N. Y. Supp. 310; Gardiner v. People, 6 Park. Crim. Rep. 155. And the fact that the deceasd had an exceedingly thin skull is competent and important in a prosecution for manslaughter, in estimating the char

acter and probable effect of blows shown to have been given by the defendant to the deceased. State v. Phillips (Iowa) 89 N. W. 1092.

And a physician testifying as a wit ness in a prosecution for murder may be permitted to examine the skull of the person killed, in court, together with the broken gun found beside such person's dead body, and explain frae tures in the skull and marks on it, and show the fit of parts of the gunlock and sight in indentations or fractures in the skull. Gardiner v. People, 6 Park. Crim. Rep. 155.

'Miller v. Dumon, 24 Wash. 648, 64 Pac. 804; Bruce v Beall, 99 Tenn. 303, 41 S. W. 445; Alberti v. New York, L. E. & W. R. Co. 118 N. Y. 77, 6 L. R. A. 765, 23 N. E. 35.

Orscheln v. Scott, 90 Mo. App. 352; State v. Wieners, 66 Mo, 13.

Territory v. Egan, 3 Dak. 119, 13 N. W. 568; People v. Morales (Cal.) 77 Pac. 470.

sue. 12

the purpose of establishing some designated fact material to the isWhere an injured person voluntarily exhibits his injuries to the jury, the opposing party is entitled to have medical experts selected by him make an examination for the purpose of testifying.13

565. Power to compel in divorce and criminal cases.-For the purpose of protecting the rightful succession to the property of deceased persons against fraudulent claims, courts of chancery in actions for divorce, and annulment of marriage, have exercised the right to compel compulsory physical examination by physicians in determining claims of impotence and other similar questions as affecting the validity of marriage; the right resting 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.14 And an order for the examination of the defendant's person by physicians in such a case is a matter of discretion with the chancellor; and the exercise of that discretion cannot be revised on error or appeal.15 But a phys

"Nebonne v. Concord R. Co. 68 N. H. Week. Rep. 943; C v. C 296, 44 Atl. 521. J. Prob. N. S. 12.

And a witness in an action for a personal injury could not be permitted to exhibit his injured limb to the jury for the purpose of showing that the injury was similar to that suffered by the plaintiff, and that his injury had healed, with a view of disproving a claim that the plaintiff's injury was permanent, and would permanently disable him from attending to his business; the court having permitted liberal examination of the witness, and allowed all proper testimony tending to contradict the plaintiff. Grand Lodge Brotherhood of R. Trainmen v. Randolph, 186 Ill. 89, 57 N. E. 882.

18 Chicago, R. 1. & T. R. Co. v. Langston, 92 Tex. 709, 50 S. W. 574, 51 S. W. 331, Affirming 19 Tex. Civ. App. 568, 47 S. W. 1027, 48 S. W. 610.

"Union P. R. Co. v. Botsford, 141 U. S. 250, 35 L. ed. 734, 11 Sup. Ct. Rep. 1000; McQuigan v. Delaware, L. & W. R. Co. 129 N. Y. 50, 14 L. R. A. 466, 26 Am. St. Rep. 507, 29 N. E. 235; Devan bagh v. Devanbagh, 5 Paige, 554, 28 Am. Dec. 443; Anonymous, 89 Ala. 291, 7 L. R. A. 425, 18 Am. St. Rep. 116, 7 So. 100; Stagg v. Edgecombe, 32 L. J. Prob. N. S. 153, 3 Swabey & T. 240, 9 Jur. N. S. 698, 8 L. T. N. S. 643, 12 Week. Rep. 19; B- v. C- 32 L. J. Prob. N. S. 135; B

V.

L

16

32 L.

Where impotency is made a ground for annulling a marriage by statute, the power exists in a court having jurisdiction of such a case to compel a physical examination of a party to ascertain its existence, although the statute does not provide for it. LeBarron v. LeBarron, 35 Vt. 365.

So, a writ de ventre inspiciendo should be ordered in a case where the child in question, or children, would be entitled to a sum of money to be raised under a trust for a number of years out of real estate. Re Blakemore, 14 L. J. Ch. N. S. 336.

15 Anonymous, 35 Ala. 226.

And where the answer in a suit to annul a marriage on the ground of physical incapacity of the defendant admits present incapacity, but denies that it existed at the time of the marriage, and the nature of the incapacity is such as to render a surgical examination of the defendant necessary, in connection with a personal examination on oath as to the commencement and progress of the disease which created the incapacity, the court will direct the defendant to submit to such an examination, although she had been previously examined ex parte, without oath, by her own medical attendants. Newell v. Newell, 9 Paige, 25.

ical examination in an action for a decree of nullity of marriage, based on alleged impotence, will not be granted except on the clearest proof of sincerity and necessity especially where the parties are advanced in years.18 With reference to criminal cases, however, compulsory physical inspection or examination is effectually prevented by constitutional provisions that no person shall be compelled in a criminal case to give evidence against himself.17 And it has been doubted whether in cases of rape and cognate offenses the court has the power to make an order compelling the inspection of the person of the prosecutrix in the event of her refusal to submit to examination; it has been suggested that if such examination can be compelled in any case, it is a matter of judicial discretion.18 But the constitutional provision against compelling a person in a criminal case to give evidence against himself does not apply to an investigation or examination by experts of the clothing or person of one accused of murder, for the purpose of ascertaining the presence or absence of blood stains.19 And the rule was settled in early times, though now apparently in disuse, that on a plea of pregnancy by a woman charged with a crime punishable with death, the question should be tried by a jury of matrons, acting, if desired, with the assistance of a surgeon, 20

18Briggs v. Morgan 2, Hagg. Consist. Rep. 324.

And a divorce will not be granted to a husband on the ground that his wife, at the time of the marriage, was physically and incurably incapacitated from entering into the marriage state, where three physicians testified from professional examination that her disease was incurable, and two other physicians testified that on a subsequent examination by them they found her to be entirely cured. Anonymous, 35 Ala. 226.

"State v. Height, 117 Iowa, 650, 59 L. R. A. 437, 94 Am. St. Rep. 323, 91 N. W. 935; People v. McCoy, 45 How. Pr. 216; People v. Stout, 3 Park. Crim. Rep. 670.

But the mere fact that the person examined was in custody does not show compulsion as against evidence of positive assent. People v. Stout, 3 Park. Crim. Rep. 670.

And the evidence of a physician as to the condition of the wounded head of a person charged with murder is not rendered objectionable as being compulsory evidence by the defendant against himself, by the fact that his head had been

shaved for the purpose of medical attendance, where it appears that he voluntarily permitted the shaving, and the examination could have been made without it. State v. Tettaton, 159 Mo. 354, 60 S. W. 743.

And the fact that a physical examination by a physician was compulsory, and without the consent of the person examined, does not render the information obtained by the physician incompetent as a privileged communication. State v. Height, 117 Iowa, 650, 59 L. R. A. 437, 94 Am. St. Rep. 323, 91 N. W. 935.

18 McGuff v. State, 88 Ala. 147, 16 Am. St. Rep. 25, 7 So. 35.

19 State v. Baker, 33 W. Va. 319, 10 S. E. 639.

20 State v. Arden, 1 Bay, 487; Reg. v. Wycherley, 8 Car. & P. 262.

If a jury of matrons called in a murder case to ascertain the condition of the accused wish to have the evidence of a surgeon before they give their verdict, they should return into the court, and the surgeon should be examined as a witness in open court. Reg. . Wycherley, 8 Car. & P. 262.

566. Compulsion in case of personal injury. In civil suits generally, especially in the United States, the prevailing rule would seem to be that a physical examination before trial cannot be compelled in the absence of a statutory enactment permitting it.21 But such examinations in actions for personal injury are provided for by statute in some of the states; and provisions therefor are not unconstitutional as depriving one of liberty and equal protection of the laws,22 or as interfering with the sacredness or privacy of one's person, 23 or as an infringement of the right to be confronted with witnesses.24 And there is a strong holding that courts have an inherent jurisdiction to grant a compulsory order requiring a party to submit to such a physical examination before trial;25 and that in actions for personal injuries the plaintiff may be required by the court, upon proper application, to submit his person to an examination for the purpose of ascertaining the character and extent of his injuries.26 With

"McQuigan v. Delaware, L. & W. R. Co. 129 N. Y. 50, 14 L. R. A. 466, 26 Am. St. Rep. 507, 29 N. E. 235; Roberts v. Ogdensburgh & L. C. R. Co. 29 Hun, 154; Neuman v. Third Ave. R. Co. 18 Jones & S. 412; Savage v. Murray, March Special Term, Brooklyn City Court, 1889; Kern v. Bridwell, 119 Ind. 226, 12 Am. St. Rep. 409, 21 N. E. 664; St. Louis & S. W. R. Co. v. Lindsey (Tex. Civ. App.) 81 S. W. 87; Union P. R. Co. v. Botsford, 141 U. S. 250, 35 L. ed. 734, 11 Sup. Ct. Rep. 1000.

Lyon v. Manhattan R. Co. 142 N. Y. 298, 25 L. R. A. 402, 37 N. E. 113. "Ibid.

"McGovern v. Hope, 63 N. J. L. 76, 42 Atl. 830.

But an order for the physical examination of the plaintiff in an action for personal injury, under a statute providing that, in granting an order for the examination of the plaintiff before trial, the court may direct the plaintiff to submit to a physical examination, can be made only in connection with, and as part of, an order for the examination of the party before trial, and in conformity with the provisions of law for such examinations. Lyon v. Manhattan R. Co. 142 N. Y. 298, 25 L. R. A. 402, 37 N. E. 113.

And where a statute permitting a physical examination of a person who had suffered an injury takes effect after trial of an action therefor, but before the entry of judgment, evidence which may be produced by such an examination cannot be treated as newly discov

ered evidence, and as furnishing a ground for a new trial. Cole v. Fali Brook Coal Co. 87 Hun, 584, 34 N. Y. Supp. 572.

Schroeder v. Chicago, R. I. & P. R. Co. 47 Iowa, 375; Beckwith v. New York C. R. Co. 64 Barb. 299; Walsh v. Sayre, 52 How. Pr. 334; Shepard v. Missouri P. R. Co. 85 Mo. 629, 55 Am. Rep. 390; White v. Milwaukee City R. Co. 61 Wis. 536, 50 Am. Rep. 154, 21 N. W. 524.

Walsh v. Sayre, 52 How. Pr. 334, and Beckwith v. New York C. R. Co. 64 Barb. 299, supra, are clearly overruled by the later New York cases, cited supra, supporting the contrary doctrine, though they, in turn, have been overruled in part by statutory enactment.

An injured person cannot be compelled to exhibit his injury to the jury, however, in an action brought by the physician attending him against the person causing the injury, who had employed the physician, for his services. McKnight v. Detroit & M. R. Co. (Mich.) 10 Det. L. N. 777, 97 N. W. 772.

Schroeder v. Chicago, R. I. & P. R. Co. 47 Iowa, 375; Sibley v. Smith, 46 Ark. 275, 55 Am. Rep. 584; Richmond & D. R. Co. v. Childress, 82 Ga. 719, 3 L. R. A. 808, 14 Am. St. Rep. 189, 9 S. E. 602; Beckwith v. New York C. R. Co. 64 Barb. 299; Shaw v. Van Rensselaer, 60 How. Pr. 143; Stuart v. Havens, 17 Neb. 211, 22 N. W. 419; Hess v. Lake Shore & M. S. R. Co. 7 Pa. Co. Ct. 565; Lane v. Spokane Falls & N. R.

reference to examinations at a trial, the same conflict of authority exists; the rule on the one hand being that the court has no power to compel the examination of a party to an action by a physician in the presence of the jury;27 and the one on the other hand being, that, in actions for personal injuries, the court may, in a proper case at the trial, direct the plaintiff to submit to a personal examination by physicians on behalf of the defendant.28 And the court has power in a proper case, and under proper circumstances, to require the plaintiff to perform physical acts in the presence of the jury, which will tend to show the nature and extent of his injuries.29

Though the power is deemed to exist, however, there is no absolute right to insist upon such an examination.30 The courts must exercise a sound discretion in compelling or refusing the examination, which is subject to review in case of abuse.31 And an application for such an examination should not be granted, unless the ends of justice

Co. 21 Wash. 119, 46 L. R. A. 153, 75
Am. St. Rep. 821, 57 Pac. 367.

An examination properly made by a medical expert is not rendered inadmissible in evidence in an action for a personal injury by the fact that it was made after the commencement of the action. Louisville, N. A. & C. R. Co. v. Falvey, 104 Ind. 409, 3 N. E. 389, 4 N.

E. 908.

"Parker v. Enslow, 102 Ill. 272, 40 Am. Rep. 588; Loyd v. Hannibal & St. J. R. Co. 53 Mo. 509; McSwyny v. Broadway & S. A. R. Co. 27 N. Y. S. R. 363, 7 N. Y. Supp. 456.

In Stuart v. Havens, 17 Neb. 211, 22 N. W. 419, it was held that an application for a physical examination, made during the trial, may be denied; since, if desired, it should have been made before the trial began.

White v. Milwaukee City R. Co. 61 Wis. 536, 50 Am. Rep. 154, 21 N. W. 524; Atchison, T. & S. F. R. Co. v. Thul, 29 Kan. 466, 44 Am. Rep. 659; Belt Electric Line Co. v. Allen, 102 Ky. 551, 80 Am. St. Rep. 374, 44 S. W. 89; Belle of Nelson Distilling Co. v. Riggs, 104 Ky. 1, 45 S. W. 99; Graves v. Battle Creek, 95 Mich. 266, 19 L. R. A. 641, 35 Am. St. Rep. 561, 54 N. W. 757.

Coal Co. 87 Hun. 584, 34 N. Y. Supp.

572.

"Hatfield v. St. Paul & D. R. Co. 33 Minn. 130, 53 Am. Rep. 14, 22 N. W. 176.

30 Norton v. St. Louis & H. R. Co. 40 Mo. App. 642; Shepard v. Missouri P. R. Co. 85 Mo. 629, 55 Am. Rep. 390; Belle of Nelson Distilling Co. v. Riggs, 104 Ky. 1, 45 S. W. 99.

In Sibley v. Smith, 46 Ark. 275, 55 Am. Rep. 584, however, it was held that where the plaintiff in an action for damages alleges that they are of a permanent nature, the defendant is entitled, as a matter of right, to have the opinion of a surgeon upon his condition, based upon personal examination; and the court may, upon demand, compel the plaintiff to submit to it.

31 Sibley v. Smith, 46 Ark. 275, 55 Am. Rep. 584; Alabama G. 8. R. Co. v. Hill, 90 Ala. 71, 9 L. R. A. 442, 24 Am. St. Rep. 764, 8 So. 90; Macon R. & Light Co. v. Vining (Ga.) 48 S. E. 232; Richmond & D. R. Co. v. Childress, 82 Ga. 719, 3 L. R. A. 808, 14 Am. St. Rep. 189, 9 S. E. 602; Aspy v. Botkins, 160 Ind. 170, 66 N. E. 462; Illinois C. R. Co. v. Clark, 21 Ky. L. Rep. 1549, 55 S. W. 699; Belt Electric Line Co. v. Allen, 102 Ky. 551, 80 Am. St. Rep. 374, 44 S. W. 89; Belle of Nelson Distilling Co. v. Riggs, 104 Ky. 1, 45 S. W. 99; Shepard v. Missouri P. R. Co. 85 Mo. 629, 55 Am. Rep. 390; Hatfield v. St. Paul & D. R. Co. 33 Minn. 130, 53 Am. Rep. Cole v. Fall Brook 14, 22 N. W. 176.

The question of the power to order a physical examination of a person who had suffered an injury is the same, in the absence of statutory authority, whether it is sought to compel submission to such an examination before trial, or at trial.