Physical Examination

The question as to whether, and under what circumstances, courts will permit the physical examination of litigants and of persons accused of crime, and also of property in litigation, has been much mooted. A physical examination of a woman under the writ, of do ventre implciendo was known to the common law under special circumstances. See Jury of Women. This early practice has been urged as a precedent for permitting a physical examination in certain civil and criminal cases. In Union Pacific R. Co. v. Bottsford, 141 U. S. 250, 11 Sup. Ct. 1000, 35 L. Ed. 734, the question was the right of a federal court to order a surgical examination of the plaintiff, in an action of tort. Mr. Justice Gray referred to the common-law writ of de ventre inspiciendo in capital cases, and also in civil cases involving the rightful succession to property of a decedent against fraudulent tiff in error (John F. Dillon) had “failed to produce an instance of its even having been considered in any part of the United States as suited to the habits and conditions of the people.” He added that “so far as the books within our reach show, no order to inspect the body in a personal action appears to have been made or even moved for, in any of the English courts of common law, at any period of their history.” The ruling of the court below, refusing such an examination, was sustained. See, also, Pennsylvania Co. v. Newmeyer, 129 Ind. 401, 25 N. E. 860; Mc Quigan v. It. Co., 129 N. Y. 50, 29 N. E. 235, 14 L. R. A. 466, 26 Am. St. Rep. 507; Illinois Cent R. Co. v. Griffin, 80 Fed. 278, 25 C. C. A. 413; Parker v. Enslow, 102 111. 272, 40 Am. Rep. 588. That the court has no inherent power to order a physical examination is held in Camden & S. R. Co. v. Stetson, 177 U. S. 172, 20 Sup. Ct. 617, 44 L. Ed. 721; Larson v. Salt Lake City, 34 Utah, 318, 97 Pac. 483, 23