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Counsel for Parties.

PHINNEY v. SHEPPARD, &c., HOSPITAL TRUSTEES.

ERROR TO THE COURT OF APPEALS OF THE STATE OF MARYLAND.

No. 392.

Submitted March 19, 1900.-Decided April 9, 1900.

Dismissed on the authorities cited.

This was a motion to dismiss for want of jurisdiction.

Mr. William Pinkney White, Mr. George R. Willis and Mr. Francis T. Homer for the motion.

Mr. Abner McKinley and Mr. E. J. D. Cross opposing.

THE CHIEF JUSTICE: Cause reported in state court, 88 Maryland, 633. Writ of error dismissed on the authority of Williams v. Eggleston, 170 U. S. 304, 309; Hamblin v. Western Land Company, 147 U. S. 531; Wilson v. North Carolina, 169 U. S. 586, 595.

HENKEL v. CINCINNATI.

ERROR TO THE SUPREME COURT OF THE STATE OF OHIO.

No. 206. Argued March 20, 21, 1900.– Decided April 9, 1900.

Dismissed on the authority of Sayward v. Denny, 158 U. S. 180, 183, and

other cases cited in the opinion of the court.

The case is stated in the opinion of the court.

Mr. L. Benton Tressing for plaintiff in error.

Mr. Wade H. Ellis and Mr. Ellis G. Kinkead for defendant in error.

Opinion of the Court.

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THE CHIEF JUSTICE: Bill for injunction to restrain collection of a special assessment filed in Court of Common Pleas, Hamilton County, Ohio, and on hearing dismissed. Carried by appeal to circuit court of Hamilton County, heard there, and again dismissed. Appealed to Supreme Court of Ohio, and the judgment of the circuit court affirmed June 14, 1898, it being ordered “ that a special mandate be sent to the circuit court of Hamilton County to carry this judgment into execution.” June 21, “mandate issued,” and “original papers sent to clerk.” Opinion, 58 Ohio St. 726 : “ Judgment affirmed on authority of Cleveland v. Wick, 18 Ohio St. 303."

January 6, 1899, the Chief Justice of the Supreme Court of Ohio made and signed a certificate that the question whether the assessment was in violation of the Fourteenth Amendment was submitted to the court, and that the court decided that it was not.

The record does not show that any Federal question was raised prior to judgment, but it appears in the petition for writ of error from this court, and accompanying assignment of errors.

The certificate of the Chief Justice could not confer jurisdiction. Parmelee v. Lawrence, 11 Wall. 36; Powell v. Brunswick County, 150 U. S. 433, 439; Dibble v. Bellingham Bay Land Company, 163 U. S. 63, 69.

The writ of error is dismissed on the authority of Sayward v. Denny, 158 U. S. 180, 183; Ansbro v. United States, 159 U. S. 695; Oxley Stave Company v. Butler County, 166 U. S. 648; Miller v. Cornwall Railroad Company, 168 U. S. 131 ; Keokuk and Hamilton Bridge Company v. Illinois, 175 U. S. 626.

Statement of the Case.

CAMDEN AND SUBURBAN RAILWAY COMPANY v.

STETSON.

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE THIRD

CIRCUIT.

No. 174. Argued March 6, 1900. – Decided April 9, 1900.

This was an action brought in the Circuit Court of the United States for

the District of New Jersey against a railway company, for an alleged injury to the plaintiff, caused by the neglect of the railway company while the plaintiff was a passenger on one of its cars. Held that that court had the legal right or power, under the statute of New Jersey and the United States Revised Statutes, to order a surgical examination of the plaintiff.

This case came here upon a certificate from the Circuit Court of Appeals for the Third Circuit, under the act of March 3, 1891, c. 517, $ 6, 26 Stat. 826. The action was brought in the Circuit Court of the United States for the District of New Jersey by the plaintiff against the railway company to recover damages for an alleged injury to his person caused by the neglect of the defendant while the plaintiff was a passenger on one of defendant's cars.

At the time that he brought suit plaintiff was a citizen of the State of Pennsylvania, the railway company being a corporation of the State of New Jersey. The alleged neglect and injury occurred on the 13th day of July, 1896, in the city of Camden in the State of New Jersey, and at that time the plaintiff was a citizen of that State.

On the 12th of May, 1896, the legislature of New Jersey passed and the governor approved an act (c. 202, p. 344) which reads as follows:

“1. On or before the trial of any action brought to recover damages for injury to the person, the court before whom such action is pending may, from time to time on application of any party therein, order and direct an examination of the person injured, as to the injury complained of, by a competent physician or physicians, surgeon or surgeons, in order to qualify the person or persons making such examination, to testify in the said cause

Counsel for Parties.

as to the nature, extent and probable duration of the injury complained of; and the court may in such order direct and determine the time and place of such examination; provided, this act shall not be construed to prevent any other person or physician from being called and examined as a witness as heretofore."

When the case was called for trial on March 31, 1898, and after a jury had been iinpaneled, but before the case was opened to the jury, the defendant's counsel asked in open court that the plaintiff should submit himself to examination by a competent surgeon. The plaintiff would not consent, and the court held that it had no power to order the plaintiff to subject himself to examination by physicians against his will, and it therefore refused to make the order asked for by counsel for the defendant, who was thereupon allowed an exception to the ruling. The trial proceeded and resulted in a verdict and judgment for the plaintiff. The defendant brought the case by writ of error before the Circuit Court of Appeals, and that court desiring the instruction of this court upon the matter made the foregoing statement and ordered the following questions to be certified here :

“1. Is the above-recited statute of the State of New Jersey, the act of May 12, 1896, applicable to an action to recover damages for injury to the person brought and tried in the Circuit Court of the United States for the District of New Jersey ?

“2. Is said statute applicable to an action to recover damages for injury to the person brought and tried in the Circuit Court of the United States for the District of New Jersey, where the injury occurred in the State of New Jersey, and both the plaintiff and the defendant at the time of the injury were citizens of that State?

“3. Had the Circuit Court the legal right or power to order a surgical examination of the plaintiff ?”

Mr. E. A. Armstrong and Mr. David J. Pancoast for plaintiff in error.

Mr. Howard Carrow for defendant in error,

Opinion of the Court.

MR. JUSTICE PECKHAM, after stating the facts, delivered the opinion of the court.

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An answer to the third question, “Had the Circuit Court the legal right or power to order a surgical examination of the plaintiff,” will be all that is necessary for the action of the court below.

It is settled in this court that no power to make such an order exists at common law; in other words, the court has no inherent power to make it. Union Pacific Railway v. Botsford, 141 U. S. 250. In that case there was no statute of the State in which the United States court was held which authorized the order. There is no intimation in the opinion that a statute of a State directly authorizing such examination would be a violation of the Federal Constitution, or invalid for any other

reason.

In this case we have such a statute, and by section 721 of the Revised Statutes of the United States it is provided that “the laws of the several States, except where the Constitution, treaties or statutes of the United States otherwise require or provide, sball be regarded as rules of decision in trials at common law in courts of the United States, in cases in which they apply.”

Does not this statute of the State apply in trials at coinmon law in the United States courts sitting in the State where the statute exists?

The case before us is a common law action; it is one to recover damages for a tort, which is an action of that pature. It was being tried in the State which enacted the statute, and the court was asked to apply such statute to the trial of an action at common law.

Neither the Constitution, treaties nor statutes of the United States otherwise require or provide. The statute concerns the evidence which may be given on a trial in New Jersey, and it does not conflict with any statute of the United States upon that subject. It is not a question of a general nature, like the law merchant, but simply one concerning evidence based upon a local statute applicable to actions brought within the State to recover damages for injury to the person. The statute comes

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