and compel his testimony as to his injuries, or to cross-examine him relative thereto, if he testifies in his own behalf. While in a large number of states this matter is one of statutory regulation, in the states where no such regulation obtains the decided preponderance of authority favors the right of the trier in his discretion to make such an order. 4 Wigmore, Ev. 2d ed. § 220, pp. 723, 729."

In Atkinson v. United R. Co. (1921) 286 Mo. 634, 228 S. W. 483, it was said: "The law invests the trial court with authority to appoint physicians to make physical examination of the plaintiff in a physical-injury suit. The defendant cannot demand it as a matter of right, but the court in its discretion may do it in the furtherance of justice. . . . When the court makes such an appointment, he does so because he determines in his discretion that the case calls for the opinion of disinterested and unbiased physicians, not friends of either parties, whose testimony is likely to be biased.

This court, in case of State ex rel. American Mfg. Co. v. Anderson (Mo.) supra, placed the authority of the court in such cases upon the same ground as the general power to compel a discovery. Wigmore, Ev. vol. 3, § 2194, treats of the subject in the same manner, and says: 'Apart from specific privileges, then, a person is bound, if required, to furnish evidence by exhibiting his corporal features, his chattels, and his premises, to the inspection of the tribunal or its duly delegated officers.' Wigmore then quotes from a Federal case of Justice Brewer as follows: 'A person who testifies to his physical condition may be compelled (there being no improper exposure of person) to uncover his body, that the jury may see whether there be such a physical condition as he has testified to.' The power to make such an appointment involves an order requiring the plaintiff to submit to examination. The court could not compel plaintiff to submit to such examination by the witnesses for the other side. The physicians appointed in such cases are the officers of the court. The order is made because an exhibi

tion to the jury or the court of the infirmities about which the inquiry is made would not disclose the facts as fully and clearly as the examination of experts would reveal them."

In O'Brien v. Sullivan (1922) 107 Neb. 512, 186 N. W. 532, it was held that the trial court had not abused its discretion in overruling a motion made after the trial had commenced, to have the plaintiff examined by a physician, because the motion was not timely. It was said: "It is now well settled by the weight of authority that trial courts have the inherent power to require the plaintiff, in an action to recover damages for personal injuries, to submit his or her person to a reasonable private physical examination by competent physicians and surgeons to ascertain the nature and extent of the alleged injuries. 14 R. C. L. 696, and cases cited. This court has spoken on the subject in State ex rel. Parmenter v. Troup (1915) 98 Neb. 333, L.R.A. 1915E, 936, 152 N. W. 748, as follows: 'In an action for damages caused by injuries to the person, the trial courts have power to order an expert examination of the person of the party injured, when the circumstances of the trial make it necessary to do so, and no substantial harm can result therefrom.' In the present case, however, the ruling of the trial court seems to have been based upon the fact that the application for a physical examination was not timely made. It appears that, after the case was called for trial, and the impaneling of the jury commenced, a motion was made for an order for a physical examination of the plaintiff. The motion was overruled, 'on account of the delay in the trial of the case that would result from a physical examination being had at this time, and no reason being shown for the delay in making said application.' It is plain that whether the court should stop the progress of a trial for the purpose of ordering a physical examination, especially when no reason is shown why the application was not sooner made, is a matter which rests in the sound legal discretion of the trial court, and, unless such discretion has been abused, the action of the court will not

constitute reversible error. Under the record in this case, we are not prepared to say that the ruling of the court on the motion was an abuse of discretion. If a personal examination is desired, the better practice is to make the application before the trial begins, and to have experts agreed upon by the parties or appointed by the court."

In Louisiana & A. R. Co. v. Woodson (1917) 127 Ark. 323, 192 S. W. 174, wherein it appeared that a physician had testified that an X-ray examination would not reveal the nature of the injury, it was held that the trial court had not abused its discretion in denying the defendant's motion to require the plaintiff to submit to an X-ray examination.

It is provided by statute in Washington that the trial court may require the plaintiff to submit to a physical examination at its discretion. In Finn v. Bremerton (1922) 118 Wash. 381, 203 Pac. 971, wherein it appeared that the trial had been at issue for many months, it was held that the trial court had not abused its discretion in denying the defendant's motion at the trial to require the plaintiff to appear and submit to a physical examination, since to allow it would have delayed the trial.

The power of the court to direct a physical examination of the plaintiff at its discretion is likewise fixed by statute in New Jersey. Andrus v. Fomfara (1925) — N. J. L. —, 127 Atl. 788.

There is also a similar statute in New York. Under that statute an order for the physical examination of the plaintiff can be obtained from the court only on notice to the plaintiff. Young v. Fairfax (1923) 120 Misc. 839, 200 N. Y. Supp. 815. This statute (Civil Practise Act, § 306) authorizes the court to order the plaintiff to submit to an X-ray photograph. Hollister v. Robertson (1924) 208 App. Div. 449, 203 N. Y. Supp. 514; Boyland v. Libman (1927) 129 Misc. 415, 220 N. Y. Supp. 632. Contra, Van Orden v. Madow (1923) 207 App. Div. 827, 201 N. Y. Supp. 954.

In Ontario the trial court is author

ized by statute to require the plaintiff in an action for personal injuries to submit to a physical examination conducted by a physician, appointed by the court, who is not a witness on either side. See Salter v. Maher (1922) 51 Ont. L. Rep. 516, 69 D. L. R. 539.

In the former annotations it was stated that California was among those jurisdictions recognizing the majority rule. The view of the court in the comparatively recent case of Anderson v. United Stages (1923) 192 Cal. 250, 219 Pac. 748, may best be shown by a portion of the decision in that case, which is as follows: "Prior to the close of the testimony on behalf of the plaintiff, counsel for defendant suggested to the court that the court appoint some surgeon to examine the plaintiff and report and testify concerning the condition of the plaintiff at that time. In response the judge expressed an opinion that the court did not have the power to take such action except with the consent of both parties. Such consent was not given. Prior to that time the defendant had caused the plaintiff to be examined by a physician selected by it, and his testimony was introduced in evidence. It does not appear that the defendant was prevented from having made further examinations of the plaintiff such as it desired. Moreover, counsel for defendant expressly stated that he did not believe that the court had power to order such examination, and did not further insist upon the making of such order. It is now contended by appellant that the trial court did have power to make and enforce the suggested order, irrespective of the consent of the other party, and that 'the court erred in denying the motion.' It relies on the case of Johnston v. Southern P. Co. (1907) 150 Cal. 540, 89 Pac. 348, 11 Ann. Cas. 841, as the controlling authority on this point. But an examination of that decision shows that the question presented here was not decided at all, and was not before the court. In that case the defendant was seeking to obtain an order requiring the plaintiff to submit to a physical examination by reputable physicians selected by the defendant. The court

refused to make the order, solely because the court believed that it was powerless so to do. On appeal it was held that the court did not have that power. It may well be that a court is authorized to make such an order in order to enable the defendant to obtain evidence necessary to his defense. But we do not think the law imposes upon the court any duty to obtain and produce evidence at the instance of one party without the consent of the adverse party."

It does not appear to have been decided in West Virginia whether the defendant can ever force the plaintiff to submit to a physical examination in a proper case, but it has been held that, where the trial court refuses to require such an examination in the proper exercise of its discretion, its decision will not be disturbed. Perkins v. Monongahela Valley Traction Co. (1918) 81 W. Va. 781, 95 S. E. 797. Similarly, in Quinn v. Flesher (1920) 85 W. Va. 451, 102 S. E. 300, the court, still reserving the question as to whether the examination can ever be required, held that, when the defendant had delayed his request until the time of the trial, the court had properly refused it. It was said: "In the case of Perkins v. Monongahela Valley Traction Co. (W. Va.) supra, we reviewed some of the authorities upon the question of the defendant's right to have a physical examination of the plaintiff in a personal-injury case, and there concluded that, even were the right conceded, it may be granted or withheld by the trial court in the exercise of a sound judicial discretion. The defendants here do not give any reason for not having made this request before the trial, nor does it appear how long it would have been necessary to suspend the proceedings to permit the picture to be taken. In the absence of a showing that would indicate that the granting of the request would probably result in obtaining evidence of some value, and of a satisfactory reason for not having seasonably made the request, as well as a showing that the trial would not be unduly delayed, the court did not abuse its discretion in refusing this request."

b. Minority view.

In a few jurisdictions the view has been taken that the trial court ordinarily has no authority to compel the plaintiff to submit to a physical examination. Kennedy v. New Orleans R. & Light Co. (1918) 142 La. 879, 77 So. 777; Cornell v. Great Northern R. Co. (1920) 57 Mont. 177, 187 Pac. 902; Oklahoma R. Co. v. Thomas (1917) 63 Okla. 219, L.R.A.1917E, 405, 164 Pac. 120; Texas Electric R. Co. v. Rowell (1919) Tex. Civ. App. -, 211 S. W. 788; Sharp v. Ogden Rapid Transit Co. (1916) 48 Utah, 481, 160 Pac. 438. See Fleming v. Holleman (1925) 190 N. C. 449, 130 S. E. 171; Texas Employers' Ins. Asso. v. Downing (1919) Tex. Civ. App., 218 S. W. 112.

In Kennedy v. New Orleans R. & Light Co. (La.) supra, it was held that the trial court had correctly ruled to the effect that it had no authority to require the plaintiff to permit an examination of her person in order to determine the extent of her injuries. However, the court apparently did not give full credit to the testimony of her own physicians, because of her refusal to submit to an examination by physicians selected by the defendant, for the judgment was reduced by half. It was said: "We find no fault with the ruling of the trial judge to the effect that he was without authority to require plaintiff to permit an examination of her person; but, on the other hand, we do not see how the jury and the judge could reach a legal verdict and judgment against the defendant upon an ex parte version of physical injuries, of the nature and character of which plaintiff permitted only the witnesses selected by herself to become informed; for, if defendants in such cases can be condemned upon that basis, they will always be at the mercy of the plaintiffs, who have only to complain of injuries not visible outside of their clothing, produce themselves and their own selected witnesses to testify to them, and sit tight, with no fear of possible contradiction. Such a proceeding however, fails to furnish the principal element required in due process of law, to wit, a hearing, and ordinarily would be dis

missed, since a court cannot well place a value upon ex parte testimony."

In Cornell v. Great Northern R. Co. (1920) 57 Mont. 177, 187 Pac. 902, wherein the view was taken that the court had no power to compel the plaintiff to submit to a physical examination in order that the extent of his injuries might be ascertained, it was held that the court had properly refused to instruct the jury to consider the plaintiff's refusal to be examined in awarding damages.

As was stated in the former annotations, when the plaintiff has voluntarily exhibited his injuries to the jury, the court may compel him to submit to a physical examination, although he would ordinarily have no power to do

So.

It appears from the opinion in Fleming v. Holleman (1925) 190 N. C. 449, 130 S. E. 171, that the right to require the plaintiff to submit to a physical examination in North Carolina is lim ited to an examination of the injured member or part of the body voluntarily exhibited to the jury at the time of the trial. This is apparently the only decision involving the question in that jurisdiction. In that case, wherein it appeared that the plaintiff, while on the stand, exhibited his injured leg to the jury, it was said: "Under the facts and circumstances in the instant case, we think defendants had a right to have an expert examine plaintiff's injured member. This right does not extend except to the injured member or part of body that plaintiff voluntarily exhibits to the jury. In the trial of all cases the purpose is to ascertain the truth. The 'inviolability of the person' is not lightly to be impinged, but where a plaintiff voluntarily waives the inviolability by exposing his person to accentuate the damage, it is but justice that at the instance of a defendant who may suffer by the exposure to have expert examination."

In Holton v. Janes (1919) 25 N. M. 374, 183 Pac. 395, wherein it appeared that the plaintiff had exhibited his injuries to the jury, it was held that the trial court had erred in overruling the defendant's motion to have the injuries in question examined by a physi

cian. The court said: "An examination of the cases will show that the courts have uniformly held that, where a plaintiff in a personal-injury suit voluntarily exhibits the injured part of his body to the jury for inspection, the portion of his body so exhibited becomes an exhibit in the case, like any other object or thing introduced in evidence, and the opposite party has the right to make such inspection of it as will enable him to explain, criticize, or impeach its value as evidence, and to that end have it examined by experts."

In a Texas case wherein it appeared that the plaintiff, while testifying, indicated with his hands where the pain was located, without removing any of his clothing, it was held that the defendant could not require the plaintiff to be examined by its physicians, under the rule that, when the plaintiff voluntarily exposes his injuries to the jury, he waives the privilege of not being required to submit to a physical examination. Texas Electric R. Co. v. Rowell (1919) — Tex. Civ. App. —, 211 S. W. 788. However, it is provided by statute in Texas that, in an action under the state Workmen's Compensation Act, the plaintiff may be required to submit to a physical examination. Texas Employers' Ins. Asso. v. Downing (1919) - Tex. Civ. App. 218 S. W. 1120.

In Oklahoma R. Co. v. Thomas (1917) 63 Okla. 219, L.R.A.1917E, 405, 164 Pac. 120, it appeared that at the first trial of the case the plaintiff, by agreement with the defendant, had submitted to a physical examination by physicians appointed by the court. During the second trial the physicians. testified to the extent of the injuries, explaining the testimony by pointing out places on the plaintiff's body which he voluntarily bared. The defendant then requested the court to require the plaintiff to submit to another examination at the hands of its physicians, claiming that by exhibiting his body to the jury the plaintiff had waived his exemption from being required to submit to an examination. The plaintiff resisted the motion, offering to be further examined by disinterested physicians. It was held that

the trial court had properly refused to grant the motion.

In the former annotations it was stated that the Illinois courts adhere to the minority rule. No later cases on the subject have been found, except Swenson v. Aurora (1915) 196 Ill. App. 83. In that case it appeared that the plaintiff voluntarily exhibited his injured leg to the jury and it was held that the refusal of the court to allow the defendant's physician to examine the limb was error.

III. Effect of previous examination. The question whether the defendant is entitled to have the plaintiff examined more than once to determine the extent of his injuries depends on the particular circumstances of each case. Where it has appeared that the necessary information could have been obtained on the first examination, or where another examination would unnecessarily delay the trial, it has been uniformly held that the defendant cannot require the plaintiff to submit to another examination.

In St. Louis-San Francisco R. Co. v. Murphy (1925) 168 Ark. 330, 270 S. W. 956, it appeared that the plaintiff brought suit to recover for injuries to his foot and his back. Before the trial two physicians representing the defendant examined the plaintiff to determine the extent of his injury, making an X-ray of the foot, but not of the back. Before the case was closed the defendant asked permission for two other physicians, called by it as witnesses, to make an X-ray of the plaintiff's back. The court refused to allow the examination, because to do so would have delayed the trial, and on appeal his ruling was affirmed as within his discretion.

In Scullin v. Vining (1917) 127 Ark. 124, 191 S. W. 924, it appeared that at the first trial of the case the court had required the plaintiff to submit to a physical examination at the hands of physicians selected by the defendant. They testified that the examination revealed no injuries, and that in their opinion the plaintiff was simulating. They again testified on the second trial to same effect. It was held that, in

view of the testimony of the witnesses, the court had not abused its discretion in refusing to order another examination of the plaintiff.

In Cincinnati, N. O. & T. P. R. Co. v. Perkins (1924) 205 Ky. 798, 266 S. W. 652, wherein it appeared that several X-ray examinations had been made by physicians representing both parties to the suit, it was held that the court had not abused its discretion in refusing on the last day of the trial to require the plaintiff to submit himself to another X-ray examination.

In Schroth v. Philadelphia Rapid Transit Co. (1924) 280 Pa. 36, 124 Atl. 279, wherein it appeared that the three physicians who testified for the defendant and the two physicians who testified for the plaintiff had all had ample opportunity to examine the plaintiff, and the question of the extent of her injuries was thoroughly discussed at the trial, it was held that there had been no error in refusing to order further examination of the plaintiff by disinterested physicians.

In Hansen v. Sandvik (1924) 128 Wash. 60, 222 Pac. 205, wherein it appeared that the trial court had appointed a disinterested physician to examine the plaintiff, it was held that there had been no error in refusing to appoint a physician of the defendant's own selection to conduct a further examination.

In Van House v. Canadian Northern R. Co. (1923) 155 Minn. 57, 28 A.L.R. 357, 192 N. W. 493, it appeared that the plaintiff had been examined by four physicians at the request of the defendant, and that she had, of her own initiative, been examined by X-ray. All of the physicians testified at the trial. The one who took the X-ray photographs testified that in his opinion the plaintiff's spine was fractured, but the X-ray plates were not introduced as evidence. It was held that the trial court had not abused its discretion in denying the defendant's request at the trial to have the plaintiff submit to another X-ray examination. It was said: "Whether the court should have required plaintiff to submit to the taking of another X-ray photograph is a question not free from