Opinion
No. 3732.
Decided June 1, 1948.
An order of the Trial Court that a plaintiff, in a personal injury action, submit to a physical examination by a particular physician is within its inherent discretionary power and violates no constitutional privilege.
CASE, for personal injuries to plaintiff's minor child. Defendant's motion that the plaintiff be examined by a licensed physician engaged by the defendant for the purpose of determining the nature and extent of her injuries prior to trial was granted by the court after hearing. The plaintiff objected to an examination by this physician claiming that he had a "personal dislike for plaintiff's counsel" and would be prejudiced. The plaintiff's bill of exceptions, allowed by Leahy, J., is based on three alleged errors: (1) The physical examination is unconstitutional, (2) it cannot be ordered in the absence of a statute specifically so providing and (3) plaintiff's offer to be examined by another physician to be selected by the defendant, deprives the court of the power to order an examination by the physician claimed to be unfriendly by the plaintiff.
William H. Sleeper and Robert Shaw (Mr. Shaw orally), for the plaintiff.
Sheehan, Phinney Bass (Mr. Phinney orally), for the defendant.
As early as 1860 and quite consistently since that time it has been the practice in this state ". . . that the court may make such orders in each case, from time to time, as justice may require." Deming v. Foster, 42 N.H. 165, 179; LaCoss v. Lebanon, 78 N.H. 413, 417; Dame v. Seaward, ante, 125. The rationale of our practice has been well expressed in Taylor v. Thomas, 77 N.H. 410, 411: "But as the law is now administered, there is no such thing as property in a piece of evidence. It is now universally recognized that the object of a trial is to ascertain the truth by rational means. The sporting theory — the theory that a judicial trial is a game to be played according to certain rules — has no more place in the present conception of the administration of justice than has the wager of battle." The use of depositions, discovery, physical examinations and pre-trial procedure (Superior Court Rule 48, 93 N.H. Appendix) are customary examples of "rational means" to discover some of the truth before trial. They enable court, counsel and the parties to have a more intelligent grasp of the issues to be litigated and the modern trend is to encourage such practices.
Whatever may have been the rule formerly, it is quite clear now that the right of a court to order the physical examination of a plaintiff in a personal injury action violates no constitutional privilege and is a procedural matter to be passed upon in the discretion of the Trial Court. Sibbach v. Wilson Co., 312 U.S. 1; 8 Wig. Ev. (3rd ed.) s. 2220 B (Supp., supra, note 13). Since the court has the inherent discretionary power to order a physical examination, the absence of a statute is not fatal to the exercise of that power. Such is the rule supported by the great weight of authority. 51 A.L.R. 184; 108 A.L.R. 142. In support of its third assignment of error, the plaintiff relies on Stack v. Railroad, 177 Mass. 155 and 17 Am. Jur. 51, note 20. This represents a minority view which is inconsistent with present day practice and procedure and is therefore not followed. The Presiding Judge had full opportunity to gauge to what extent, if any, plaintiff's rights would be prejudiced by his order and has decided that question adversely to the plaintiff. There appears to be no abuse of discretion in this ruling. The plaintiff's rights may be fully protected by cross-examination of the physician and the plaintiff's physician could be present at the physical examination.
Exceptions overruled.
All concurred.