Leonard J. McMullen v. Travelers Insurance Company, a Corporation

In this diversity action, summary judgment was entered against McMullen because he failed to submit himself to a physical examination pursuant to an order obtained by Travelers. He appeals.

McMullen’s suit was on an insurance contract of Travelers in connection with his claim of total disability. Issues were joined on liability, the main one being: Is McMullen disabled?

Travelers’ order for McMullen to submit to the examination was obtained under Rule 35(a), Federal Rules of Civil Procedure, 28 U.S.C.A. After persistent refusal by McMullen, an order was obtained under Rule 37(b) (2) (i), which found the facts (without any proof) in accordance with the claim or contentions of Travelers as to McMullen’s physical condition. Such findings, if properly made, being dispositive of the whole action, the trial court entered summary judgment in favor of Travelers.

That there was a continued, persistent refusal is evident. The reasons for the refusal are not entirely clear. McMullen expresses fear of bodily harm. We doubt if any fear was justified. He did not object to the doctor designated as incompetent. Certainly no order for examination, though not limited as to scope, carries with it…