whereupon Dr. Bennett requested that the plaintiff be sent to his office, saying "in all probabilities it may be necessary to take an X-ray." This request of Dr. Bennett was forwarded by the defendant's counsel to plaintiff's counsel, with the suggestion that he make arrangements to have the plaintiff go to Dr. Bennett's office, "but the plaintiff's counsel refused, and still refuses, to do this, insisting that he is not willing that Mrs. Brown (the plaintiff) should be put to the trouble of going to the office of a doctor who is appointed at the suggestion of the defendant's attorney." In further reply to the above-mentioned request the plaintiff's counsel stated "that the plaintiff is willing to subject herself to an examination by a physician appointed by the court for that purpose, at her own home."

The petition then alleges "that the defendant is advised and believes that there is no reason why the plaintiff should not go to the office of Dr. Bennett, except the unwillingness of her counsel to permit her to go; that the defendant is further advised and believes that a fair and complete examination of the plaintiff cannot be made at her home because of the impossibility of taking an X-ray." The petition then concludes with a prayer that the court "pass an order requiring the plaintiff to go to the office of Dr. G. E. Bennett to submit herself to the physical examination ordered by this court on November 23, 1925, and, upon her failure so to do, that a judgment of nonsuit be entered for the plaintiff. Upon this petition, the court, on the 18th day of December, passed the following order:

"Ordered by the Baltimore city court that Emily Brown, the plaintiff in this case, submit to a physical examination at the office of Dr. George E. Bennett, 4 E. Madison street, Baltimore, Md., in accordance with the order of this court signed the 23d day of November, 1925.

"It is further ordered that, unless the plaintiff shall submit to such examination, or show cause to the contrary on or before the 31st day of December, 1925, a judgment of non pros. be entered against the plaintiff provided, however, a copy of this order is served on the attorney for the plaintiff on or before the 24th day of December, 1925."

The three orders above mentioned were all signed by Judge Bond, then sitting in the Baltimore city court.

that

On December 30, 1925, the plaintiff, in response to the order to show cause, filed her answer, in which she averred "that the convenience of the examining physician is not more to be considered than is the convenience of the plaintiff to be examined; Dr. Bennett is not skilled in the taking of X-ray pictures; that he does. not himself take the X-ray pictures, and this plaintiff is not willing to subject herself to the taking of an X-ray picture by one not skilled therein; that it has not been the practice of the courts of this jurisdiction, or other jurisdictions, to require a plaintiff, unless by agreement of parties, to proceed to some particular place other than a suitable place acceptable to said plaintiff for the purpose of submitting to a personal medical examination by a representative of the defendant or by some one appointed at the behest of the defendant, and said order is contrary to the accepted practice of this state."

The answer also avers that "the plaintiff in this case is a mature woman, still nervous from the injury she received as a result of the injury, and nervous and apprehensive at being compelled to go to the office of a strange physician at such time as he should select, and submit herself to any examination that might be made therein, although willing, since the original order of this court, to afford said Dr. Bennett every facility in making of the examination at her own home at

such time as would suit the convenience of said Dr. Bennett."

The answer then concludes by saying: "And she (the plaintiff) asserts that, were such orders made permanent, it would be unreasonable, unjust, an abuse of discretion, and an arbitrary exercise of a limited authority vested in the court, without due regards to the rights of the plaintiff."

On the 25th day of January, 1926, the defendant filed its motion for a judgment of non pros. against plaintiff, and on the 2d day of February following the court (Judge Duffy then sitting in the Baltimore city court) passed the following order:

"Upon the several petitions of the defendant filed November 2 and December 18, 1925, and the defendant's petition for a judgment of nonsuit for failure to comply with the orders of this court, passed on November 2d and December 18th, it is this 2d day of February, 1926. "Ordered by the Baltimore city court that the orders of this court heretofore entered on November 2 and December 18, 1925, be, and the same are hereby, annulled, and in lieu thereof it is ordered that Emily Brown, the plaintiff in this case, shall, on or before the 8th day of February, 1926, submit to a physi

cal examination at the office of Dr. George E. Bennett, 4 East Madison street, Baltimore, Md., the said examination to be made by Dr. George E. Bennett, with the right on his part, if he deem it necessary, to have an X-ray or X-rays taken of the plaintiff by Dr. F. H. Baetjer, and the said Dr. George E. Bennett is required to make a report, in writing, to this court, with reasonable promptness, giving the result of such examinations of the plaintiff, and to send a copy thereof to the attorney for the plaintiff, and a copy thereof to the attorney for the defendant, and the said Dr. George E. Bennett shall, upon proper summons, submit himself as a witness at the trial of this case, and testify as an expert appointed by the court,

and be subject to cross-examination by the attorneys for the plaintiff and the defendant.

"It is further ordered that the fees of the said Dr. George E. Bennett and Dr. F. H. Baetjer shall be paid by the defendant.

"It is further ordered that the plaintiff may, if she so desires, be accompanied to the office of Dr. Bennett by her husband and her family physician, who have a right to be present when the examination is made."

Thereafter, on the 20th day of February, the defendant renewed his motion for a judgment of non pros., and a judgment was so entered against the plaintiff in favor of the defendant for costs. It is from that judgment that the appeal in this case was taken.

We have stated, at considerable length, the facts alleged in the petitions and answers of the parties to this suit, and have set out in full the different orders passed by the court. This we have done to show the contention of the plaintiff as to the passage of such orders, and likewise to show the extent to which the court went to meet the objections urged by the plaintiff to the passage of an order directing the plaintiff to submit to a physical examination by a physician appointed by the court to ascertain the character and the extent of her injuries. claimed to have been sustained by her as a result of her alleged fall.

The law of this state as to the power of the court to require the plaintiff to submit to such an examination is stated in United R. & E. Co. v. Cloman, 107 Md. 690, 69 Atl. 383, where this court, speaking through the late Chief Judge Boyd, said: "The authorities are conflicting on the subject. It is said that there is no record in the English reports of such an order, or even of such a motion. In the federal courts it is held that the court has no power to compel a plaintiff in an action for personal injuries to submit his person to a physical examination, and it was so decided in

Union P. R. Co. v. Botsford, 141 U. S. 250, 35 L. ed. 734, 11 Sup. Ct. Rep. 1000. The weight of authority seems to be to the contrary, in the state courts of this country, although, while the power is admitted many cautions and limitations are suggested, and the general rule is that it cannot be demanded as a matter of right by a defendant, but the application is addressed to a sound discretion of the trial court, which will not be interfered with by an appellate court unless such discretion was manifestly abused. That seems to us to be the correct view. We cannot admit that the trial court has no such power in any case, for sometimes it may be apparent that a plaintiff is feigning, and has not suffered such injuries as he pretends he has sustained. Instances are not unknown to courts and counsel, who have had experience in such cases, in which jurors have been imposed on, and sometimes even reputable physicians, who have been called upon to testify on behalf of plaintiffs, have been deceived. When therefore the ends of justice seem to require it, there can be no valid reason why an examination should not be permitted, if seasonable application is made, and the court is satisfied that no serious physical or mental injury is likely to be done the plaintiff. Unless consent is given by the plaintiff to have the examination made by physicians of the defendant, the safe course is for the court to name some disinterested physician or physicians to make such examination.

The practice of permitting such an examination would have a tendency to prevent frauds, which are sometimes perpetrated by dishonest plaintiffs in actions. for personal injuries. The court should be satisfied that the application is made in good faith and not merely to affect the jury, in case of refusal to submit to the examination."

In the more recent case of Scheffler v. Lee, 126 Md. 373, 94 Atl. 907, the plaintiff refused to submit to

the examination ordered by the court, upon the ground that her person was inviolate, and that same under no circumstances should be exposed to any physician or any other person against her consent. In consequence of such refusal, a judgment of non pros. was entered, as in this case, against the plaintiff for defendant's costs. Which judgment on appeal was affirmed by this court.

These cases fully establish the power of the court, in its discretion, to

right to require

Discovery

nation.

pass such an order physical examiand to enter a judg

ment of non pros. against the plaintiff, when she refuses to comply therewith.

The plaintiff in her answer to the nisi order of the court passed on November 2, 1925, admitted that she "agreed to be examined by some reputable physician for the defendant upon the condition that the defendant would agree to a settlement based upon the finding of the defendant's medical examiner, as to the injuries sustained" by her, though she contended that it was not a case that warranted the passage of an order for an examination of the plaintiff, but if the court thought otherwise, then the order should name a disinterested physician to be selected by both the plaintiff and the defendant, and the examination to be made at a time convenient to the plaintiff and in the presence of her physician; the costs of such examination to be paid by the defendant.

The final order of the court passed on the 23d day of November, 1925, did not in its provisions differ materially from the nisi order of November 2, 1925.

The court's order of December 18, 1925, passed after the plaintiff's refusal to go to the office of Dr. Bennett, as requested by him, directed her to go to his office for examination within the time therein named, and, if she failed to do so, a judgment of non pros. would be entered against her.

II. continued.

b. Minority view, 187.

I. Introductory.

This annotation is intended to collect the recent decisions on the power to require a plaintiff to submit to a physical examination. The earlier cases may be found in the annotations in 1 Ann. Cas. 266; 11 Ann. Cas. 844; Ann. Cas. 1917D, 351; 14 L.R.A. 466; 23 L.R.A. (N.S.) 463; 41 L.R.A. (N.S.) 1071; and L.R.A.1915E, 936.

II. In general.

a. Majority view.

As stated in the former annotations, the rule in the majority of jurisdictions is that the trial court has the power to require the plaintiff, in an action to recover for injuries, to submit to a physical examination in order that the extent of the injuries may be ascertained. However, the defendant does not have an absolute right to require the plaintiff to submit to the examination, the matter being within the discretion of the trial court. Although the trial court's ruling is subject to review on appeal, the courts have uniformly adopted the view that it will not be disturbed unless it palpably shows an abuse of discretion.

Arkansas. Scullin v. Vining (1917) 127 Ark. 124, 191 S. W. 924; Louisiana & A. R. Co. v. Woodson (1917) 127 Ark. 323, 192 S. W. 174; St. Louis-San Francisco R. Co. v. Murphy (1925) 168 Ark. 330, 270 S. W. 956.

Connecticut.-Cook v. Miller (1925) 103 Conn. 267, 130 Atl. 571.

Indiana. Lake Erie & W. R. Co. v. Griswold (1920) 72 Ind. App. 265, 125 N. E. 783; Valparaiso v. Kinney (1921) 75 Ind. App. 660, 131 N. E. 237.

Kansas. Landis v. Wichita R. & Light Co. (1922) 110 Kan. 205, 203 Pac. 1109.

Kentucky. Stearns Coal & Lumber Co. v. Williams (1917) 177 Ky. 698, 198 S. W. 54; Cincinnati, N. O. & T. P. R. Co. v. Perkins (1924) 205 Ky. 798, 266 S. W. 652. See Thomas v. Com. (1920) 188 Ky. 509, 222 S. W. 951; Harlan v. Howard (1925) 211 Ky. 516, 277 S. W. 847.

Nebraska. O'Brien v. Sullivan (1922) 107 Neb. 512, 186 N. W. 532. New Jersey. Andrus v. Fomfara (1925) N. J. L. —, 127 Atl. 788. New York. Hayt v. Brewster Gordon & Co. (1921) 199 App. Div. 68, 191 N. Y. Supp. 176, reversing (1921) 189 N. Y. Supp. 907; Leas v. New York & A. Lighterage Co. (1922) 119 Misc. 323, 196 N. Y. Supp. 372; Young v. Fairfax (1923) 120 Misc. 839, 200 N. Y. Supp. 815; Hollister v. Robertson (1924) 208 App. Div. 449, 203 N. Y. Supp. 514.

Pennsylvania. Twinn v. Noble (1921) 270 Pa. 500, 113 Atl. 686; Schroth v. Philadelphia Rapid Transit Co. (1924) 280 Pa. 36, 124 Atl. 279.

Virginia. See Tugman v. Riverside & D. River Cotton Mills (1926) 144 Va. 473, 132 S. E. 179.

Canada.

Salter v. Maher (1922) 51 Ont. L. R. 516, 69 D. L. R. 539.

In Cook v. Miller (Conn.) supra, the appellate court, in holding that the trial court had not erred in requiring the plaintiff to submit to a physical examination before the trial, in order to determine the extent of her injuries, said: "The order of the trial court for an examination of the person of plaintiff was a proper exercise of discretion. The discretionary right to make such an order would seem to flow legitimately from the right of a defendant to call an injured plaintiff as a witness