Note on Physician's Examination Before Trial.

[Under this ruling the physician was allowed, against objection, to ask the plaintiff how long since the injury occurred, what happened, how he was immediately affected by the blow, how large a wound was made, how long he was in the hospital, whether any operation was performed, and what symptoms he now complained of, and to apply the test of a dynamometer, an æsthesiometer and an ophthalmoscope, and to examine the heart, pulse and temperature.]

[The interrogatories of the physician and the plaintiff's answers thereto were taken down as a part of the deposition and the whole signed and sworn to by the plaintiff, and appended thereto was a certificate of the physician stating in detail the result of his examination, and his opinion that Frederick Wunsch has had a compound fracture of the skull with depression of the bone and that he is at present suffering from the shock and the results of that injury," and this certificate was signed by the physician and sworn to before a notary, but not authenticated by the referee.]

NOTE ON PHYSICIAN'S EXAMINATION OF PERSON BEFORE TRIAL.

The result of these two cases taken together seems to be that the physician appointed by the court is a quasi judicial officer owing his duty solely to the court by which he is appointed, and authorized not merely to make a physical inspection and manual and instrumental tests, but also to put such inquiries to the party under examination as in his judgment (subject to correction by the referee), are necessary or proper to enable him to ascertain and report fully upon the nature and extent of the injuries complained of. It is plain that the questions which he may desire to put for this purpose may include some which could not be put to the plaintiff by his own counsel, and others that the defendants' counsel would not desire himself to put on the part of the defense. The theory indicated by the opinion of the referee in Wunsch v. Weber is that the physician stands in a relation to the investigation such as that which the judge himself occupies, in a case where, by reason of there being

Note on Physician's Examination Before Trial

an infant party, or suspicion of collusion, or other sufficient cause, he proceeds sua sponte to examine a witness in his own manner to get out the truth clearly without deferring to the wishes or policy of counsel on either side. The limits within which this may be done have not been very authoritatively determined, and there is some difference of opinion as to the legal effect of evidence thus brought out by a judge, in respect to the right of either party to follow with cross-examination, or to assign error in the putting of questions, the admitting of answers and a refusal to strike out. The better opinion is, that this power is inherent in the court as the result of the judicial oath to administer justice; and that the measure of its exercise is to be sought in the necessity of recourse to it to prevent injustice.

The opinion of the Court of Appeals in the Lyon case expressly establishes the right of counsel to examine the party, and as the physician's examination is only allowable as a part of the oral examination, it would seem that counsel have the same right to interrogate the party that they had under the statute previously, and it appears to follow that they have the right to complete this interrogation so far as it tends to make clear the nature and extent of the injuries, before the physician should make up his opinion and settle the terms of the report. His opinion ought to be based not merely upon his own physical examination and his own questions incidental thereto, but also should take into view any facts relevant to his report brought out by other questions by either of the respective counsel. At least, this view is in harmony with the doctrine that the physical examination now added is added as part of the oral examination previously authorized.

The statute does not expressly provide for the manner in which the result of the physician's investigation is to be brought before the court. It does not direct that he make, as was done in the case of Wunsch v. Weber, a written report to be annexed as a part of the deposition; nor does it contain any express provision allowing his report, if he make one, to be read in evidence. On the other hand, it does not direct that he be sworn as a witness upon the

If he is to be regarded as an official witness, forming an expert opinion upon what is brought before him, in order that he may testify to the results, there should be a right of cross-examination either before his report is concluded, or by his production as a witness at the trial, so that he may be subject to cross-examination there. If this

Note on Physician's Examination Before Trial.

is the proper view, it would not necessarily follow that his cross-examination could extend beyond the subjects of his opinion'; for all personal questions of ability and fitness might perhaps be deemed foreclosed by his selection by the court. If he is to be regarded as a judicial officer to whom the question of fact in relation to physical injury is referred for determination as distinguished from a witness giving an opinion subject to cross-examination, then we have the anomaly of an unsworn officer substituted in the place of the jury as to a part of the issues, without any express statute making his report conclusive or even competent evidence.

In considering these and kindred questions which may · arise in practice under the statute, reference may well be had to the contemporaneous amendment of § 836, which provides that "In an action for the recovery of damages for a personal injury, the testimony of a physician or surgeon attached to any hospital, dispensary or other charitable institution as to information which he acquired in attending a patient in a professional capacity, at such hospital, dispensary, or other charitable institution, shall be taken before a referee appointed by a judge of the court in which such action is pending; provided, however, that any judge of such court at any time in his discretion may, notwithstanding such deposition, order that a subpoena issue for the attendance and examination of such physician or surgeon upon the trial of the action;" further provisions being added which make the statute of depositions apply to such an examination.

The general opinion will doubtless be that this physical examination is no part of the trial, and that an ex parte report of the physician is not made competent evidence; but that, on the other hand, the object of the statute is simply to allow a prompt inspection and interrogation of the sufferer to be made by an expert in order to qualify him as a witness upon the trial.

Knight v. Sackett & Wilhelms Lithographing Co.

KNIGHT v. SACKETT & WILHELMS LITHOGRAPHING CO.

N. Y. Superior Court, General Term; July, 1892.

Again:

N. Y. Court of Appeals; March, 1894.

1. Chattels; title to lithographic stones.] A contract with a lithographing company under which it makes impressions of drawings upon stones from designs furnished, and stipulates to furnish prints when requested at agreed rates, the title to the stones to remain in the company and the ownership of the engravings to be in the person furnishing the designs, does not vest the latter with such title to the stones as will sustain an action for their conversion against one acquiring title through a chattel mortgage executed by the company, after refusal of their delivery upon a demand and tender of the mere value of the stones themselves.*

2. The same.] Authorities as to acquisition of property by accession and confusion, and as to bailments, collated in opinions and points of counsel.

BY THE GENERAL TERM.

3. New trial; motion on minutes.] Where an action is, by consent of the parties, tried by the court without a jury, a motion for a new trial on the judge's minutes is not sanctioned by Code Civ. Pro., §999, and the order denying such motion must be affirmed on appeal, irrespective of the reasons for which it was made.

4. Trials; dismissal upon the merits.] Where, upon a trial by the court, the complaint is dismissed upon plaintiff's own showing, without any findings being made, it should not be "upon the merits."t

Appeal from a judgment of the general term of the Superior Court of the city of New York affirming a judgment dismissing the complaint rendered upon a trial by the court without a jury.

* Compare the next case.

† See notes on this subject in 29 Abb. N. C. 283; 30 Id. 325; 27 Id. 132, 202, 216, and 23 Id. 279, 282.

Knight v. Sackett & Wilhelms Lithographing Co.

The action was brought for the conversion of certain personal property consisting of lithographic drawings or engravings upon stones originally owned by the Hatch Lithographic Company, and which came into defendant's possession through the foreclosure of a chattel mortgage executed by that company.

The complaint was dismissed at the trial.

Upon an application to the trial judge for a new trial, the following opinion was rendered:

MCADAM, J.-The plaintiff entered into a contract with the Hatch Lithographic Company, by which the latter was to perform services in making lithographic drawings or impressions on stone, from which prints or colored lithographs were to be printed from time to time for the plaintiff, at agreed prices. The drawings became the property of the plaintiff, while the stones upon which the impressions were made and taken belonged to the Hatch Lithographic Company. While the stones were thus owned, the latter company executed a chattel mortgage thereon, which was foreclosed, and at the foreclosure sale the property was bought in, and eventually found its way into the hands of the defendant. The plaintiff tendered to the defendant the sum of $247.50, which, it claims, was the price fixed by the defendant as the value of the lithographic stones upon which the drawings were made, and demanded from the defendant the delivery of the drawings, which, of course, included the stones upon which the impressions were made, for the one could not be delivered without the other; but the defendant refused to comply with the demand, and the plaintiff brought this action in trover as for conversion, claiming $5,000 damages. The complaint was dismissed upon the ground that the plaintiff had no title to the stones, hence could not maintain conversion. The present is an application for a new trial..

The plaintiff's counsel at the trial, when asked by what process his client became possessed of title to the stones,