Page:The Green Bag (1889–1914), Volume 04.pdf/546

 Practical Tests in Evidence. person is as much invaded by a compulsory strip ping and exposure as by a blow. To compel any one, and 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; and no order of process commanding such an exposure or submission was ever known to the common law in the administration of justice between individuals, except in a very small number of cases, based upon special reasons and upon ancient practice, coming down from ruder ages, now mostly obsolete in England, and never, so far as we are aware, introduced into this country. "In the case at bar it was argued that the plaintiff in an action for persona', injury may be permitted by the court, as in Mulhado v. Railroad, 30 N. Y. 370, to exhibit his wounds to the jury in order to show their nature and extent, and to enable a sur geon to testify on that subject, and therefore may be required by the court to do the same thing, for the same purpose, upon the motion of the defend ant. But the answer to this is that any one may expose his body if he chooses, with a due regard to decency, and with the permission of the court, but that he cannot be compelled to do so in a civil action without his consent. If he unreasonably refuses to show his injuries when asked to do so, that fact may be considered by the jury as bearing on his good faith, as in any other case of a party de clining to produce the best evidence in his power. Clifton v. U. S., 4 How. 242; Bryant v. Stilwell, 24 Penn. St. 314; Turquand v. Strand Union, 8 DowT. 201. In this country the earliest instance of an order for the inspection of the body of the plaintiff in an action for a personal injury appears to have been in 1868, by a judge of the Superior Court of the city of New York in Walsh v. Sayre, 52 How. Pr. 334, since overruled by decisions in General Term in the same State. Roberts v. Rail road, 29 Hun, 154; Neuman v. Railroad, 50 N. Y. Super. Ct. 412; McSwyny v. Railroad Co., 7 N. Y. Supp. 456. And the power to make such an order was peremptorily denied in 1873 by the Supreme Court of Missouri, and in 1882 by the Supreme Court of Illinois. Loyd v. Railroad Co., 53 Mo. 509; Parker v. Enslow, 102 Ill. 272; s. c. 40 Am. Rep. 588. Within the last fifteen years, in deed, as appears by the cases cited in the brief of the plaintiff in error (Schroeder v. Railway Co., 47 Iowa, 375; Turnpike Co. v. Bail v. 37 Ohio St. 104; Railroad Co. v. Thul, 29 Kans. 466; s. c.

44 Am. Rep. 659; White v. Railway Co., 61 Wis. 536; s. c. 50 Am. Rep. 154; Hatfield v. Railroad Co., 33 Minn. 130; s. c. 53 Am. Rep. 14; Stuart v- Havens, 17 Neb. 211; Owens v. Railroad Co., 95 Mo. 169; Sibley v. Smith, 46 Ark. 275; s. c 55 Am. Rep. 584; Railroad Co. v. Johnson, 72 Tex. 95; Railroad Co. v. Childress, 82 Ga. 719; Railroad Co. v. Hill, 90 Ala. 71), a practice to grant such orders has prevailed in the courts of several of the Western and Southern States, fol lowing the lead of the Supreme Court of Iowa in a case decided in 1877, and some of them citing the Walsh New York case, afterwards overruled. The consideration due to the decisions of those courts has induced us fully to examine, as we have done abov e, the precedents and analogies on which they rely. Upon mature advisement, we retain our original opinion that such an order has no warrant of law. In the State of Indiana the question ap pears not to be settled. The opinions of its high est court are conflicting and indecisive. Kern v. Bridwell, 119 Ind. 226, 229; Hess v. Lowrey, 122 Ind. 225, 233; Railroad v. Brunker (Ind.), 26 N. E. Rep. 178." This conclusion was dissented from by Brewer and Brown, JJ., Mr. Justice Brewer observing : — "The end of litigation is justice. Knowledge of the truth is essential thereto. It is conceded, and it is a matter of frequent occurrence, that in the trial of suits of this nature the plaintiff may make in the court-room, in the presence of the jury, any not indecent exposure of his person to show the extent of his injuries; and it is conceded, and also a matter of frequent occurrence, that in private he may call his personal friends and his own physi cians into a room, and there permit them a full examination of his person, in order that they may testify as to what they see and find. In other words, he may thus disclose the actual facts to the jury if his interest require; but by this decision, if his interests are against such a disclosure, it cannot be compelled. It seems strange that a plaintiff may, in the presence of a jury, be permitted to roll up his sleeve and disclose on his arm a wound of which he testifies; but when he testifies as to the existence of such a wound, the court, though per suaded that he is perjuring himself, cannot require him to roll up his sleeve, and thus make manifest