Yazoo & M. V. R. R. v. Robinson

Cook, J., delivered the opinion of the court. There is bnt one assignment of error in this appeal we deem it necessary to discuss. It is contended by appellant : “That the court below erred in overruling the defendant’s motion to have the plaintiff submitted to a physical examination by .two or moré reputable and disinterested physicians, to be appointed by the court, such examination to be made at the expense of defendant.” This question has not heretofore been considered by this court, and as it is an important question we will pre-termit any examination of appellee’s contention that the court below did not err in the instant case. We prefer to settle the question of the power of the circuit courts of this state to make the order appellant requested by its motion. An examination of the decisions of the state courts up-, on this point discloses irreconcilable conflict. There is no statute of this state conferring the power upon the circuit court, and if the power exists it must be found in the common-law powers of the court. The supreme court of the United States in Union Pacific Railway Co. v. Botsford, 141 U. S. 250, 11 Sup. Ct. 1000, 35 L. Ed. 734, reviewing the precise question, said: “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.” Quoting further from the opinion of the court in the Botsford case, we find this: “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 submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass.” [196] Again, the supreme court in winding up its opinion said: “The order moved for, subjecting the plaintiff’s person to examination by a surgeon, without her consent and in advance of the trial, was not according to the common law, to common usage, or to the statutes of the United States.” This expression applies with equal force to the practice, the common usage, and statutes of this state. The legislature has at various times given powers to the circuit courts of this state not possessed by such courts under their common-law jurisdiction. As pointed out in the briefs of counsel, the trial courts of this state are authorized by statute to send the jury to the locus in quo,” and power is also given the court to order parties to a suit to submit their books and papers to the inspection of the adversary. These statutes, and others of similar character, enlarge the common-law power of the courts. Whatever may be the rules and practice of other states, the common law controls here until the legislature chooses to act upon the question. Affirmed.