# Sibbach v. Wilson & Co. > Supreme Court of the United States · January 13, 1941 · 312 U.S. 1 URL: https://www.frixlaw.com/law-library/cases/9419135 ## Case - **Full name:** Sibbach v. Wilson & Co., Inc. - **Court:** Supreme Court of the United States - **Decided:** January 13, 1941 - **Citations:** 312 U.S. 1; 61 S. Ct. 422; 85 L. Ed. 479; 1941 U.S. LEXIS 1032 - **Precedential status:** Published - **Opinion:** Dissent by Frankfurter - **Judges:** Roberts, Frankfurter, Black, Douglas, Murphy - **Cited by:** 646 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9419135 ## How later opinions describe it (automated extraction) - recognizing that Congress’s rule-making authority does not permit the Court to create rules that “declare . . .[,] abolish [,] or nullify a right recognized by the substantive law of the state where the cause of action arose, save where a right or duty is imposed in a field co… - recognizing that Congress’s rule-making authority does not permit the Court to create rules that “declare ... [,] abolish [,] or nullify a right recognized by the substantive law of the state where the cause of action arose, save where a right or duty is imposed in a field com… - reasoning that “the phrase ‘substantive rights’ ” embraces only those state rights that are sought to be enforced in the judicial proceedings - holding that Congress has the “undoubted power” to delegate that authority - rejecting an argument that rules 35 and 37 were against Congressional policy, in part, because "the rules were submitted to the Congress so that that body might examine them and veto their going into effect if contrary to the policy of the legislature” ## Opinion text Mr. Justice Frankfurter, dissenting: Union Pacific Ry. Co. v. Botsford, 141 U. S. 250 , denied the power of the federal courts in a civil action to compel a plaintiff suing for injury to the person to submit to a physical examination. Nine years later, in Camden & Suburban Ry. Co. v. Stetson, 177 U. S. 172 , *17 the Botsjord decision was treated as settled doctrine. The present issue is whether the authority which Congress gave to this Court to formulate rules of civil procedure for the district courts allows displacement of the law of the Botsjord case. Stated more particularly, is Rule 35, authorizing such physical examination, valid under the Rules Enabling Act of June 19, 1934; 48 Stat. 1064 ; 28 U. S. C. § 723b-c. It is urged that since this Rule pertains to procedure, it is valid because outside the limitations of that Act, whereby “said rules shall neither abridge, enlarge, nor modify the substantive rights of any litigant.” Speaking with diffidence in support of a view which has not commended itself to the Court, it does not seem to me that the answer to our question is to be found by an analytic determination whether the power of examination here claimed is a matter of procedure or a matter of substance, even assuming that the two are mutually exclusive categories with easily ascertainable contents. The problem seems to me to be controlled by the policy underlying the Botsjord decision. Its doctrine was not a survival of an outworn technicality. It rested on considerations akin to what is familiarly known in the English law as the liberties of the subject. To be sure, the immunity that was recognized in the Botsjord case has no constitutional sanction. It is amenable to statutory change. But the “inviolability of a person” was deemed to have such historic roots in Anglo-American law that it was not to be curtailed “unless by clear and unquestionable authority of law.” In this connection it is significant that a judge as responsive to procedural needs as was Mr. Justice Holmes, should, on behalf of the Supreme Judicial Court of Massachusetts, have supported the Botsjord doctrine on the ground that “the common law was very slow to sanction any viola *18 tion of or interference with the person of a free citizen.” Stack v. New York, N. H. & H. R. Co., 177 Mass. 155, 157 ; 58 N. E. 686 . So far as national law is concerned, a drastic change in public policy in a matter deeply touching the sensibilities of people or even their prejudices as to privacy, ought not to be inferred from a general authorization to formulate rules for the more uniform and effective dispatch of business on the civil side of the federal courts. I deem a requirement as to the invasion of the perspn to stand on a very different footing from questions pertaining to the discovery of documents, pre-trial procedure and other devices for the expeditious, economic and fair conduct of litigation. That disobedience of an order under Rule 35 cannot be visited with punishment as for contempt does not mitigate its intrusion into an historic immunity of the privacy of the person. Of course the Rule is compulsive in that the doors of the federal courts otherwise open may be shut to litigants who do not submit to such a physical examination. In this view little significance attaches to the fact that the Rules, in accordance with the statute, remained on the table of two Houses of Congress without evoking any objection to Rule 35 and thereby automatically came into force. Plainly the Rules are not acts of Congress and can not be treated as such. Having due regard to the mechanics of legislation and the practical conditions surrounding the business of Congress when the Rules were submitted, to draw any inference of tacit approval from non-action by Congress is to appeal to unreality. And so I conclude that to make the drastic change that Rule 35 sought to introduce would require explicit legislation. Ordinarily, disagreement with the majority on so-called procedural matters is best held in silence. Even in the present situation I should be loath to register dissent did *19 the issue pertain merely to diversity litigation. But Rule 35 applies to all civil litigation in the federal courts, and thus concerns the enforcement of federal rights and not merely of state law in the federal courts. Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Murphy agree with these views. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9419135. Public record. Not legal advice.