Dixie Greyhound Lines, Inc. v. Matthews , 177 Miss. 103 ( 1936 )

I am compelled to dissent from the holding of the majority opinion in this case, because no person can lawfully be compelled to submit to a physical examination any further than such person desires to go.

It is well settled in this state that the courts have no power, either conferred by statute, or at the common law, to require a plaintiff, in an action for injuries, to submit to a physical examination by physicians appointed by the court. Yazoo M.V.R.R. Co. v. Robinson, 107 Miss. 192, 65 So. 241. In this case the court cited and followed the United States Supreme Court in the case of Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 11 S. Ct. 1000, 1001, 35 L. Ed. 734, in which it was held that: "No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge COOLEY: ``The right to one's person may be said to be a right of complete immunity: to be let alone.' Cooley, Torts, 29. For instance, not only wearing apparel, but a watch or a jewel, worn on the person, is, for the time being, privileged from being taken under distress for rent, or attachment on mesne process or execution for debt, or writ of replevin. 3 Bl. Comm. 8; Sunbolf v. Alford, 3 Mees. W. 248, 253, 254; Mack v. Parks, 8 Gray [Mass.] 517 [69 Am. Dec. 267]; Maxham v. Day, 16 Gray [Mass.] 213 [77 Am. Dec. 409]. The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow. To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass; and no order or process, commanding such an exposure or submission, was ever known to the common law in the administration of justice between individuals, except in a very small number of cases, based upon special reasons, and upon ancient practice, coming down from ruder ages, now mostly obsolete in England, and never, so far as we are aware, introduced into this country."

The question as to whether a plaintiff, who exhibits a portion of his body to the jury, waives his right as to the inviolability of his person, has not been decided in this state, although there have been many suits where no attempt was made to force a plaintiff, who had made an exhibit of his body, to submit to an examination by physicians or X-ray operators. Such is highly persuasive that the right was clearly recognized not to exist.

In the majority opinion it is said that the privileged communication statute, section 1536, Code 1930, is in no way involved. But, while this statute is not literally involved, the principles announced thereunder are violated by the majority opinion in this case. In order that government by law, and not by the caprice of men, may be maintained, it is necessary that the principles of decisions be recognized and adhered to, and shadowy and fanciful distinctions should not be indulged in by the courts in the administration of justice.

The inviolability of the person principle, and the privileged communication statute, both may be waived, and if a waiver is not applicable in one case, it should not be applicable in another. It was held by this court, in construing the privileged communication statute, that it could be waived by contract signed in advance of the treatment by the physician. Sovereign Camp, W.O.W., v. Farmer, 116 Miss. 626, 77 So. 655. In the case of Newton Oil Co. v. Spencer, 116 Miss. 568, 77 So. 605 (which decision appears in the same volume as Sovereign Camp, W.O.W., v. Farmer, supra), it was held that a physician who treated an injured person was incompetent to testify, although the person introduced another physician who testified to the nature and extent of the injuries, and it was there contended that it was error to exclude the testimony of the physician who first attended the injured person, because he had waived the privilege afforded him by the statute when he placed his injuries in evidence, but the court rejected that contention, holding that was no waiver. In the subsequent case of U.S.F. G. Co. v. Hood,124 Miss. 548, 87 So. 115, 15 A.L.R. 605, it was vigorously contended by counsel that by the introduction of one physician employed by the plaintiff, who testified to the nature and extent of the injuries, he thereby waived the immunity of the privilege afforded him by the privileged communication statute, section 1536, Code 1930, but the court again held that the introducing of one physician did not waive the right to object to another physician testifying. And, in a number of cases coming to this court, it was urged that the privilege was waived whenever an injured person offered one physician to testify to the nature and character of his injuries; that by doing so he raised an issue; and that all physicians having knowledge of the nature and character of the injuries should be permitted to testify. Davis v. Elzey, 126 Miss. 789, 88 So. 630, 89 So. 666; Hunter v. Hunter, 127 Miss. 683, 90 So. 440; Watkins v. Watkins, 142 Miss. 210, 106 So. 753; Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555; Dabbs v. Richardson, 137 Miss. 789, 102 So. 769; Yazoo M.V.R.R. Co. v. Decker, 150 Miss. 621, 116 So. 287; Miss. Power Light Co. v. Jordan, 164 Miss. 174, 143 So. 483; and Illinois C.R.R. Co. v. Humphries, 170 Miss. 840, 155 So. 421.

In all of these cases, and others not cited, this court has continued to hold that although the benefit of the privileged communication statute may be waived, it is not waived by introducing the nature and character of the injuries and one or more physicians to testify thereto.

The majority opinion cites a number of cases from other jurisdicitions to sustain the contention that the plaintiff in the case at bar waived her immunity by exhibiting a portion of her body, and that therefore the injured portion of her body became an exhibit in the case, which may be dealt with as other exhibits. The principal case relied upon therein is Chicago N.W. Ry. Co. v. Kendall (C.C.A.), 167 F. 62, 16 Ann. Cas. 560. In that case, while the court did not base its holding upon the ground that the plaintiff could be compelled to submit to a physical examination under the laws of Iowa, where the injury occurred and the cause of action arose, it is manifest that the statute had important influence in its decision, and it seems to have been controlling in the opinion of Judge SANBORN of the Circuit Court of Appeals. It seems to be a principle with the federal court that the rules of evidence in a state court are generally controlling on it. In a case note to the Kendall case, 16 Ann. Cas. 563, it was held by the United States Supreme Court (Nashua Sav. Bank v. Anglo American Land, etc., Co.,189 U.S. 221, 23 S. Ct. 517, 518, 47 L. Ed. 782) that, "``The laws of the several States,' with certain exceptions, ``shall be regarded as rules of decision in trials at common law in the courts of the United States,'" and, "The ``laws of the several states' with respect to evidence within the meaning of this section (Sec. 721, Rev. Stat. U.S. [28 U.S.C.A., sec. 725]) apply, not only to the statutes, but to the decisions of their highest courts."

Other authorities cited in the majority opinion appear to be from states recognizing the rule that when a party opens up a controversy by introducing a physician, or other witness, he thereby consents that all other like witnesses having knowledge of the matter may be introduced.

Whatever may be said in favor of one rule, or the other, this court has clearly adopted the principle, in privileged communication cases, that the introducing of some physicians does not subject the party offering same to the hostile evidence of other physicians having like information. The construction now placed upon a waiver of the benefit cannot be sustained on the theory that the privileged communication statute forbids the introduction of physicians against the objection of the plaintiff because the privilege may be waived.

I cannot see any difference between the principle of the waiver in one case and in the other. The majority opinion tends merely to create confusion upon the subject of waiver.

Furthermore, in the case at bar, the plaintiff, in exhibiting the injured portion of her body, did not submit anything but a view of the surface of the portion of her body alleged to be injured, and it certainly could not be justly contended that this offer to view only the surface meant an offer to submit to an examination by a surgical operation, or X-ray pictures, or whatever experiment that would show, or tend to show, internal injuries. All that the jury could secure from such an examination was the vision of the exterior of her body. The jury could not see beneath the skin, and certainly the plaintiff's waiver should not be extended beyond the purposes for which the exhibition was made.

I cannot conceive how part of a human being exhibited in a case can be made an exhibit in a case on the same basis as a picture, or wood or iron, etc., since it cannot be taken and kept in the custody of the law as can inanimate things.

It seems to me that the majority opinion ignores the principle, although not the letter, of the decisions under the privileged communication statute.

I think, therefore, that the court below did not err in refusing to permit medical and X-ray examination of the child.