The court is unanimous in the opinion that for the most part the trial is free from error; but a majority of us can not agree with our brother Russell, who has written the opinion in chief, that the court did not err in refusing to permit the defendant to prove, for consideration by the jury, the fact that a timely request had been made of the plaintiff to allow a committee of competent and disinterested physicians to examine her person privately and under circumstances of least embarrassment to her, with a view of ascertaining whether the injury was as serious as she claimed, and whether the effects were really to be permanent. The almost uniform current of authority is to the effect that such a refusal may be shown. “Whether the trial court is denied the power to compel a party to submit to a physical examination, or, having the power and having made an order therefor, does not resort to extreme means to enforce it, evidence, as a rule, is undoubtedly competent for the consideration of the jury that the plaintiff was requested or ordered to submit to an examination of his person and refused to do so.” Watson on Damages for Personal Injuries, §675. Such evidence is competent because it tends to illustrate the faith, good or bad, in which the plaintiff’s demand is asserted. It stands upon a cognate principle to that presented in the Civil Code, §5163, that “Where a party has evidence in his power and within his reach, by which he may repel a claim or charge against him, and omits to produce it, or, having more certain and satisfactory evidence in his power, relies on that which is of a weaker and inferior nature, the presumption arises that the •charge or claim is well founded; but this presumption may be rebutted.” The Federal courts have no power to order such physical examinations; and yet even in those courts the defendant may prove that the plaintiff has refused a request for such examination, if the request be reasonably made. Union Pacific Ry. Co. v. Botsford, 141 U. S. 255, citing Clifton v. United States, 4 How. 242, and Turquand v. Strand Union, 8 Dow. 201, 4 Jurist, 74. The *598right to prove the plaintiffs refusal is entirely independent of the 1 court’s power to enforce an order for an examination, as well as of the court’s refusal to compel one where the power does exist. It is the plaintiffs conduct, not the court’s that is to be submitted to the consideration of the jury. They should consider it, together with any explanation offered by the plaintiff in regard thereto, and give to it just such weight as they deem proper. The doctrine announced is unequivocally asserted as a matter of general law in the following cases: Beckwith v. N. Y. C. & H. R. R. Co., 64 Barb. (N. Y.) 307; Elfers v. Wooley, 116 N. Y. 294; Schroeder v. C., R. I. & P. R. Co., 47 Iowa, 375; M. & M. Turnpike Co. v. Bailey, 37 Ohio St. 104; Stack v. N. Y., N. H. & H. R. Co., 177 Mass. 155, 52 L. R. A. 328. In the case last cited, the Supreme Court of Massachusetts, through Justice Holmes, denies the power of the court to compel an examination, but says: “No doubt, in general, a refusal to be examined by a doctor sent by the other side would be admissible in evidence.” In that case it also held, as in Wainwright's case, 99 Ga. 255, that if the plaintiff does not refuse to submit to an examination but merely makes the objection to the one proposed that it is not timely or impartial, and the court sustains the objection, the defendant should not be allowed to prove such an objection as a refusal. In this, Wainwright's case is perfectly distinguished.from the case at bar; for here the offer was timely and safely guarded against objectionable features.
Chief Judge Hill concurs in this view; and, in our opinion, the judgment must be reversed for the error herein noticed.