doubt. There is little authority on the subject. Such as we have found is to the effect that trial courts have broad discretionary powers in this regard. Wittenberg V. Onsgard (1899) 78 Minn. 342, 47 L.R.A. 141, 81 N. W. 14; Boelter v. Ross Lumber Co. (1899) 103 Wis. 324, 79 N. W. 243; Dean v. Wabash R. Co. (1910) 229 Mo. 425, 129 S. W. 953; State ex rel. Carter v. Call (1912) 64 Fla. 144, 41 L.R.A. (N.S.) 1071, 59 So. 789; Cincinnati, N. O. & T. P. R. Co. v. Nolan (1914) 161 Ky. 205, 170 S. W. 650, 10 N. C. C. A. 812. At the instance of defendants, plaintiff had been requested to submit and had submitted to a physical examination by four doctors, two of whom testified in her behalf and two in defendants' behalf. None of them said they were unable to form an opinion as to the nature or extent of her injuries without an X-ray examination. Undoubtedly they would have had a better foundation for their opinions if they had seen X-ray plates. It was within the power of the court to grant defendants' request, for it is a matter of common knowledge that the art of taking X-ray photographs has been so developed that danger or serious inconvenience to the patient no longer attends their taking. But it does not follow that a court has no discretion in acting on such a request. Under all the circumstances, we cannot say that there was an abuse of discretion in the denial of the request."

In Brower v. Silverman (1922) 16 Ohio App. 236, wherein it appeared that the plaintiff had been examined about three and a half months after the injury and about four months before the trial, it was held that the trial court had not abused its discretion in refusing a second examination on the day of the trial.

However, the fact that the plaintiff has been submitted to one examination by the defendant's physicians is not necessarily a bar to the defendant's right to have the plaintiff examined again. In Valparaiso v. Kinney (1921) 75 Ind. App. 660, 131 N. E. 237, wherein it appeared that the plaintiff was examined by order of the court nineteen months before the trial of the

cause and her injuries were of such a nature that would probably become less serious in the course of time, it was held that the trial court had erred in refusing to order another examination just before the trial. It was said: "It is clear to us that courts have authority to order more than one physi cal examination of a plaintiff in an action for damages on account of personal injuries. The purpose of such an examination is to enable

the courts to obtain, as nearly as possible, the exact and full truth concerning the matters in controversy, in order that they may bestow upon litigants equal and exact justice. A physical examination serves to promote the purpose stated, by placing the parties on a more equal footing before the court or jury trying the cause, as to the nature and extent of the injuries alleged to have been received, for, as said by the court in its opinion in said cause: 'If a defendant must make his defense against the expert opinions of the plaintiff's chosen surgeons, without an opportunity of testing the verity of the basis for such opinions, he may be placed at disastrous disadvantage such as the law cannot and does not sanction.' It is apparent that under certain circumstances a single physical examination may not fully accomplish, and possibly could not fully accomplish, the purpose stated above. Where such circumstances exist, the reasons which lead courts to assume authority to order physical examinations in the first instance afford ample justification for a further exercise of authority in that regard. The amendment of a complaint, after a physical examination has been had, which alleges injuries not mentioned in the original complaint, a refusal to submit fully to a reasonable examination in the first instance, deception practiced by the plaintiff with reference thereto, a claim that unusual developments of a serious nature have resulted from such injuries, a long period of time intervening between the date of the first examination and the trial of the cause, the death of the physician who made the first examination under order of court, or the in

ability of the defendant to procure his attendance at the trial, or to secure his deposition as a witness, may be cited as circumstances of the kind mentioned above. In holding that more than one physical examination of a plaintiff may be ordered under certain circumstances, we do not mean to imply that a defendant may demand either a first or subsequent examination under an order of court as a matter of right, or that the making of such an order is not within the sound discretion of the court, subject, however, to review on appeal for abuse in the exercise thereof, or that a physical examination should ever be ordered without sufficient cause, or so frequently as to unduly annoy the plaintiff, or at such times and places as to cause unnecessary embarrassment. On the other hand, we hold that courts, in the exercise of their discretion, should fully protect plaintiffs in that regard."

Likewise, in Leas v. New York & A. Lighterage Co. (1922) 119 Misc. 323, 196 N. Y. Supp. 372, it was held that the right to have the plaintiff examined under the New York statute was not barred by the fact that he had voluntarily submitted to an examination just after the injury, about two years previous to the trial.

IV. Examination likely to injure health.

It is well settled that the court has no authority to compel the plaintiff to submit to an examination of an experiment that may endanger his health. The issue in the cases involving this question is whether the chance of injuring the plaintiff is enough to justify a ruling not allowing the examination.

In Andrus v. Fomfara (1925) N. J. L., 127 Atl. 788, wherein it appeared that the plaintiff was suffering from an alleged cancerous growth as a result of his injuries, it was held that the court had no authority, under a statute empowering the court to require physical examinations of parties seeking to recover damages for injuries, to require the plaintiff to submit to an excision of some of the growth or to an X-ray photograph in order to determine whether the growth was of a cancerous nature. The court said: "It will be observed that the statute

gives to the court only the power to direct and order an examination of the person injured. The request of the defendant is more than an examination. It amounts to a request for an operation. In our opinion the statute is not broad enough to give the court power to oblige a plaintiff to submit to an excision of cells from a growth in order to furnish testimony for the defendant as to the nature of the plaintiff's ailment. No case cited on the brief for the defendant which goes to this length. In Kingfisher v. Altizer (1903) 13 Okla. 121, 74 Pac. 107, 15 Am. Neg. Rep. 173, it was held that the court could not crder the plaintiff, in an action for personal injuries, to submit to a surgical examination either before or during trial. In Louisville R. Co. v. Hartlege (1903) 25 Ky. L. Rep. 152, 74 S. W. 742, it was held that an unmarried woman was not obliged to submit to a physical examination of her person, demanded by the defendant, which would result in suffering pain and a destruction of the hymen. It has been held in compensation cases in this state that an employee is not obliged to submit to an operation, even though physicians entertain the opinion that the operation would lessen the effect of the injury of the employee. We are also of the opinion that we should not direct that X-ray photographs of the plaintiff be taken for the defendant. X-ray photographs sometimes result in the subject being seriously burned. In the case of Boelter v. Ross Lumber Co. (1899) 103 Wis. 324, 79 N. W. 243, the plaintiff had submitted to an examination by the X-ray process, and had been burned. The court refused to compel a second examination by such a process, and this was held not to be an abuse of the discretion of the court. In our opinion the only examination which this court should permit and order is an examination without excision or the right to take X-ray photographs."

In two early New York cases discussed in the previous annotations it was held that the power given a trial judge by statute to compel the plaintiff to submit to a physical examination did not include the right to re

quire an X-ray examination. However, those decisions have been overruled by the later case of Hollister v. Robertson (1924) 208 App. Div. 449, 203 N. Y. Supp. 514, wherein the court said: "We think that this court should express its present views upon the question of the power of the court under § 873 of the Code of Civil Procedure, Civil Practice Act, § 306, to require an X-ray examination as a part of a physical examination before trial. There were various elements considered by this court in deciding the case of Lasher v. S. Bolton's Sons (1914) 161 App. Div. 381, 146 N. Y. Supp. 321. So far, however, as the opinion of this court in that case indicated that the court was without power to require such an X-ray examination, we are unwilling to continue to follow it. That decision was rendered just ten years ago, and since that time there has been such a perfection of the science of taking such X-ray pictures that their use, particularly in the determining the presence and extent of bone injuries, has become a matter of universal use and the accepted method in the best medical practice. Any danger of burning or other bodily injury, when proper apparatus is used and skilful practitioners are employed, has apparently been eliminated. Our present view is that it is not beyond the power of the court to require it in a proper case, but that its use may be required under proper safeguards whenever, in the exercise of its discretion, the court deems that the issues between the parties and the advancement of the science of the use of such apparatus fairly indicate the justice of requiring it in any particular case." The Hollister case (N. Y.) supra was approved and followed in Boyland v. Libman (1927) 129 Misc. 415, 220 N. Y. Supp. 632. And see Van House v. Canadian Northern R. Co. (1923) 155 Minn. 57, 28 A.L.R. 357, 192 N. W. 493.

In Hayt v. Brewster Gordon & Co. (1921) 199 App. Div. 68, 191 N. Y. Supp. 176, reversing (1921) 189 N. Y. Supp. 907, it was held that the New York statute was broad enough to include a blood test, and that there was

not enough danger of injury to the plaintiff's health as a result of the extraction of the blood to violate any of his rights.

In Mackay Teleg.-Cable Co. v. Armstrong (1922) Tex. Civ. App. 241 S. W. 795, it was held that it was not within the power of the court to require the plaintiff to submit to the administration of "laughing gas" in order that he might be examined so as to determine the extent of his injuries.

In Stearns Coal & Lumber Co. v. Williams (1917) 177 Ky. 698, 198 S. W. 54, it was said: "It is further complained that the court refused to permit an expert electrician, while giving his testimony, to make an experiment upon the plaintiff, and to show that the volume of electricity which other evidence showed was passing through the wires with which plaintiff came in contact at the time of the accident could be withstood by plaintiff without any injurious results. We do not think the court erred in declining to permit the experiment made. It is true that it has been held by this court, and it is now an acknowledged rule within this jurisdiction, that parties litigant may be subjected to physical examinations, and, within reasonable bounds, tests may be made for the purpose of demonstrating the truth or falsity of an issue made in the case; but such practice is not only a matter largely within the sound discretion of the trial court, but it may not be demanded as a matter of right where there is a reasonable probability of its endangering the health or safety of the person upon whom it is proposed to be made. While in this case the expert witness was positive that no injurious results would happen, yet it was the very contention of the plaintiff that such injuries did result, and to recover for which he filed his suit. Moreover, upon the last trial the witness was permitted to testify that in one of the former trials he had made the experiment upon plaintiff insisted upon with no evil effects resulting therefrom. We think under the circumstances the court was not in error in declining to permit the experiment to again be made.”

E. W. P.

V.

61

Messrs. Cates, Smith, Tate, & Long, for plaintiff in error:

Defendants are not to be relieved from liability because they were under contract to carry the United States mail.

Conwell v. Voorhees, 42 Am. Dec. 209, note; Central R. & Bkg. Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 336; Smith v. Dayton Coal & I. Co. 115 Tenn. 544, 4 L.R.A. (N.S.) 1180, 92 S. W. 62.

Messrs. Johnson & Cox, for defendants in error:

The contractor is not liable for the negligence of the driver while engaged in carrying the United States mail, unless the contractor be guilty of some personal negligence.

United States v. Rogde (D. C.) 214 Fed. 283; Lunsford v. Johnston, 5 Tenn. C. C. A. 565; Sale Creek Coal & Coke Co. v. Priddy, 117 Tenn. 175, 96 S. W. 610, 10 Ann. Cas. 745; Tennessee Coal, Iron & R. Co. v. Hooper, 131 Tenn. 611, 175 S. W. 1146; 4 Elliott,

51 A.L.R.-13.

Contr. p. 365; Central R. & Bkg. Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334; United States v. Belew, 2 Brock. 280, Fed. Cas. No. 14,563; Bankers' Mut. Casualty Co. v. Minneapolis, St. P. & S. Ste. M. R. Co. 65 L.R.A. 397, 54 C. C. A. 608, 117 Fed. 434; Boston Ins. Co. v. Chicago, R. I. & P. R. Co. 118 Iowa, 423, 59 L.R.A. 796, 92 N. W. 88; Robertson v. Sichel, 127 U. S. 507, 32 L. ed. 203, 8 Sup. Ct. Rep. 1286; Keenan v. Southworth, 110 Mass. 474, 14 Am. Rep..613; Foster v. Metts, 55 Miss. 77, 30 Am. Rep. 504; Conwell v. Voorhees, 13 Ohio, 523, 42 Am. Dec. 206; 1 Labatt, Mast. & S. 2d ed. p. 108; Erwin v. Davenport, 9 Heisk. 45.

McKinney, J., delivered the opinion of the court:

These suits were brought against Pryor Brown and Charles J. Brown, doing business under the name and style of Pryor Brown Transfer Company, for injuries sustained by Mary

Galbraith Gibson, a minor, in the one case, and for the consequent expense and loss on the part of her father, Joe M. Gibson, in the other

case.

The injury resulted from a collision between a mail truck of the Pryor Brown Transfer Company and a car in which Mary Galbraith Gibson was riding.

The truck of the company was driven at the time by William Jenks. He had been in the employ of the company for some year and a half, and was considered a safe driver. The truck was on a regular mail route at the time of the accident, which occurred on the night of May 19, 1923, in the city of Knoxville.

Mary Galbraith Gibson recovered a judgment for $5,000 but was required to enter a remittitur of $3,500. The recovery in favor of her father was $600.

Upon an appeal the court of appeals dismissed both cases upon the idea that the company and its driver Jenks were agents and officers of the government, engaged in carrying the mail, and that the company was exempt from liability for the negligence of its employee Jenks.

The jury, by their verdict, have settled the controverted issues of fact, and we will dispose of the case upon the theory that the plaintiff below was injured as a result of the negligence of Jenks in handling the company's truck.

On June 22, 1920, the company entered into a written contract with the government for transporting the mails on route No. 42,702 in the city of Knoxville for the consideration of $17,990 per annum, beginning July 1, 1920, and ending June 31, 1924. The company was to furnish the necessary screen wagons, and transport the mail between the postoffice and the stations under the direction of the postmaster of Knoxville.

The fourth section of the contract is as follows: "To be accountable and answerable in damages to the United States of any person aggrieved, for the faithful perform

ance by the said contractor of all duties and obligations herein assumed, or which are now or may hereafter be imposed upon him by law in this behalf; and, further, to be so answerable and accountable in damages for the careful and faithful conduct of the person or persons who may be employed by said contractor and to whom the said contractor shall commit the care or transportation of the mails, and for the faithful performance of the duties which are or may be by law imposed upon such person or persons in the care or transportation of said mails; and, further, that said contractor shall not commit the care or transportation of the mail to any person under eighteen years of age, or any person undergoing a sentence of imprisonment at hard labor imposed by a court having competent jurisdiction, or to any person who has not satisfied the postmaster or his representative (subject to the approval of the postmaster general) that he has good moral character and ability to perform the service, has taken the oath prescribed by law, can read and write the English language, and has passed the required examination and furnished satisfactory reference as to his qualifications and fitness."

By the fifth section the company was required "to discharge any driver, or other person employed in performing mail service, whenever required by the postmaster general so to do."

The company was further required to execute a bond for the faithful performance of the contract, and each member of the company was required to subscribe to the following oath: "I will faithfully perform all the duties required of me and abstain from everything forbidden by the laws in relation to the establishment of postoffices and post roads within the United States, and that I will honestly and truly account for and pay over any moneys belonging to the said United States which may come into my possession or control; and I also further swear