We all agree that the order appealed from should be modified. There is, however, a division among us respecting the examining *92physicians and surgeons. The'county judge in his original order named three physicians, one of- whom was a woman., ' Subsequently he modified the order, by striking out these names and naming two Women physicians. It is now proposed that this court shall, strike out the names of these two physicians last appointed and restore the names of the three physicians originally appointed. We think this modification ought not to be made. 1. No good reason exists,.so far as the record discloses, for interfering with the judgment and discretion of the county judge in that regard, and we might well rest our decision ■upon' that ground. 2. It is, however, contended that the county judge made this change because he thought the plaintiff had a legal, right to have the examination made by physicians of her own sex, Assuming that to be true, which seems quite probable, we are still of the opinion that the county judge was right. We think the prm visions-of section 873 of the Code of Civil Procedure, which provides for the physical .examination of a plaintiff at the, instance^of the . -adverse party, entitles a female to have the examination by physicians of her own sex, and "that the phrase “before physicians or surgeons of her own sex ” means that the examination shall be made by them and not merely in their presence. We cannot assent to the view that it was ever intended that a woman should be compelled to expose her person .to a physical examination by physicians and surgeons riot of her own .sex or selection. We are not called upon to give a construction to this provision so literal as to permit this to be done; The information so acquired by the examining physician is not gained' under the ban of secrecy for she does not stand in the confidential relation of patient to the examining physician.
Judge O’Brien, in the case of Lyon v. Manhattan R. Co. (142 N. Y. 298), quotes from the opinion of Mr. Justice Gray delivered in the Supreme Court of the United States in the case of Union Pacific Railway Co. v. Botsford (141 U. S. 250) the following: “ The inviolability of the person is as much inyaded by a compulsory stripping and exposure as, by a blow. To compel any one, 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.”
While section 873 of the Code has changed this rule of the common law, this change should not be extended beyond a -fair and *93reasonable interpretation of the statute which makes this innovation. Where a woman is compelled to submit to a physical examination under the provisions of this section, wé think she has the right to require such examination to be made by physicians of her own sex. This view, to us, seems reasonable, and does no violence to the language of the statute.
The order appealed from should be modified by (1) striking out the provision for the oral examination of the physicians and surgeons, and (2) by striking out the entire provision limiting the examination of the plaintiff under oath and inserting in place thereof the following: “ Ordered, that the examination of the plaintiff under oath be limited to inquiries as to the nature and extent of the injuries complained of and the place where and the peculiar manner in which the injuries were received, so far as necessary to enable the defendant to ascertain the nature and extent of Such injuries; ” and as so modified the order is affirmed, without costs of this appeal to either party.
All concurred, except Williams and Hash, JJ., who dissented in an opinion by Williams, J.