Before KILEY and SWYGERT, Circuit Judges, and GRANT, District Judge.
Robert L. Schlagenhauf petitions for a writ of mandamus (28 U.S.C. § 1651(a), the All Writs Act) directed to the Honorable Cale J. Holder, district judge. The petition raises an important question respecting the scope of Rule 35, Fed.R.Civ.P.,*fn1 viz., whether a federal district court has the power to order a mental or physical examination of a person who is a defendant in a tort action. We know of no prior decision directly in point.*fn2
Because the question is fundamental, going to the court's power to require a medical examination of a defendant in a civil action, we directed the district judge to show cause why the writ should not issue. After a response to our order had been filed on behalf of the district judge and after briefs had been submitted by the parties to the litigation, oral argument was heard.
A diagrammatic description of the history of the litigation is presented in order to show how the question arises.
Jennie Markiewicz, John Anthony al injuries suffered by
Markiewicz, Edward Markiewicz Jennie and John Anthony
(husband and father, respective- Markiewicz, passengers
ly, of Jennie and John Anthony), on the Greyhound bus,
and for loss of their serv-
v. ices sustained by John
The Greyhound Corporation, Robert Markiewicz, all resulting
L. Schlagenhauf, (the driver of from bus collision with
the Greyhound bus), Contract the trailer being pulled
Carriers, Inc., Joseph L. McCork- by Contract Carriers.
hill, (the driver of Contract Car- The accident occurred
riers' truck-tractor), National July 13, 1962, on U.S.
Lead Company (the owner of the Highway 40 in Hendricks
trailer being pulled by Contract County, Indiana. Com-
Carriers). plaint was filed July 17,