Page:The Green Bag (1889–1914), Volume 04.pdf/548

 Practical Tests in Evidence. where else, so far as I have read, excepting one case. The court has no power to compel the suitor to produce any particular piece of evidence. He is suing for his own benefit, and may put in such evidence as he chooses, taking upon himself the burden of satisfying the jury. The jury may lean against him because of his omission to produce certain available evidence, but the court has no more power to compel his ex posure of his person to a surgical examina tion, than to compel his production of a particular witness to the transaction in ques tion, whom he omits or refuses to produce. This last class of omission is frequently commented on by opposing counsel as sus picious, but no one ever claimed that the party could be obliged to produce such evi dence. And yet the reasoning of Mr. Justice Brewer, followed to its legitimate conclusion, would imply such a compulsory power. The judges frequently lay stress on the fact that such an examination tends to certainty, which is the aim of the law. The answer is, the plaintiff is not bound to render his case certain, although it may be within his power to do so. He simply takes the risk of his omission to do so. The most cogent expression of this idea is by Learned, P. J., in Roberts v. Railroad Co., 29 Hun, 155, as follows : — this court has to compel a party to submit to any bodily examination. In a common-law action like this the jury are to pass on the issues of fact. And they are entitled to see and hear for them selves the evidence. It is of the very essence of the common-law system that the evidence shall be produced before the jury. Exceptions to this rule (and not desirable exceptions) are those cases in which evidence is previously reduced to writing, arid then read to the jury. Now, if a party is entitled to the compulsory exhibition of the body of his opponent, it would seem to follow that he might have such exhibition made before the jury. And the court might require the plain tiff, on the trial and before the jury, to submit to the same examination as is required by this order. 65
 * ' But again ... we know of no right which

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Neuman v. Third Ave. R. Co., 50 Supr. Ct. 412. It is undoubtedly true that not unfrequently plain tiffs, suing for bodily injuries, do exhibit in court the injured part. Nor do we know of any reason why they should not do this, notwithstanding the exhibition may excite sympathy. And on the other hand, all unreasonable concealment of an injured part (not justified by any dictate of mod esty or otherwise) may excite a doubt in the mind of the jury as to the genuineness or extent of the alleged injury. But we cannot admit the prin ciple that either in the presence of the jury or in the presence of a referee a party can compel his opponent to exhibit his body, in order to enable physicians to examine and question and testify. . . . There may be danger that in actions of this nature plaintiffs will exaggerate the injuries they have received; and that defendants may be at a disadvantage in ascertaining the exact truth. But this evil is far less than the adoption of a system of bodily and perhaps immodest examina tions, which might deter many, especially women, from ever commencing actions, however great the injuries they had sustained." Since the foregoing was written, the lead of the United States Supreme Court has been followed by the courts of last resort in New York and Indiana. In McQuignan v. Delaware, etc. Railroad Co., 129 N. Y. 50, the Court of Appeals denied the compul sory right, citing the Botsford case, and observing : — "It is very clear that the power is not a part of the recognized and customary jurisdiction of courts of law or equity. . . . 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 indispensa ble to the due administration of justice. Its exer cise depending on the discretion of the judge would be subject to great abuses. 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 been 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."