Third Nat. Bank & Trust Co. v. United States

• Decision Date: 11 November 1931
• Docket Number: No. 5877.,5877.
• Citation: 53 F.2d 599
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: THIRD NAT. BANK & TRUST CO. v. UNITED STATES.

53 F.2d 599 (1931)

THIRD NAT. BANK & TRUST CO. v. UNITED STATES.

No. 5877.

Circuit Court of Appeals, Sixth Circuit.

November 11, 1931.

E. L. Mikesell, of Dayton, Ohio (Robert N. Brumbaugh, of Dayton, Ohio, on the brief), for appellant.

C. L. Dawson, of Washington, D. C. (Haveth E. Mau and Frank Hier, both of Cincinnati, Ohio, Harry N. Routzohn, of Dayton, Ohio, William Wolff Smith, of Washington, D. C., and W. L. Metzger, of Cincinnati, Ohio, on the brief), for the United States.

Before DENISON, MOORMAN, and HICKS, Circuit Judges.

MOORMAN, Circuit Judge.

This suit was filed by Thaddeus C. Stewart to recover the benefits of a contract of insurance issued under the War Risk Insurance Act (38 Stat. 711, as amended). While the case was pending in the District Court, the Third National Bank & Trust Company was appointed guardian for Stewart, and substituted as party plaintiff. The sole issue made in the pleadings was whether Stewart became totally and permanently disabled while the policy of insurance was in effect. Upon this issue, the jury returned a verdict for defendant, upon which there was a judgment.

The first error assigned relates to the overruling of plaintiff's motion for a rule directing the defendant to produce the records of the Veterans' Bureau pertaining to Stewart for inspection by plaintiff's counsel in advance of trial. The question is not important in this case, but, as it has been made in other cases in this jurisdiction, we deem it advisable to state what we think is the proper rule with reference to such motions.

Section 30 of the World War Veterans' Act 1924 (38 USCA § 456), while declaring that the files, records, and reports pertaining to any claim filed with the bureau shall be deemed confidential, expressly provides for the disclosure of the record concerning a claimant to the "claimant or his duly authorized representative," when in the judgment of the director such disclosure would not be injurious to the claimant's physical or mental health. The act also authorizes a disclosure where required by a process of a United States court, or where deemed necessary by the director in any suit or proceeding brought under the act. These exceptions to the general provision of "no disclosure" not only contemplate the use of a claimant's record in a suit brought by him, but obviously mean that he may have access to it at any time, if not deemed injurious to his health. It is not claimed that any injury would have resulted to Stewart from an inspection of his record, and if it was in possession of counsel for the government at the time the motion was made, as presumably it was, counsel for plaintiff should have been permitted to inspect it upon request. We assume that a request was made and refused, and hence the question whether upon plaintiff's motion the court should have compelled its production for inspection.

Two grounds are advanced by the government in support of the court's ruling. One is that there was no affirmative showing that the record contained evidence pertinent to the issue in the case. Section 724 of Revised Statutes (section 636, title 28, USCA), which in the opinion of the trial court was the only authority under which it could act, does not specifically require that the moving party affirmatively show the pertinency of the evidence in the record, but merely confers upon courts of law the authority to require the production of a record if it contains evidence pertinent to an issue in the case. There are cases, no doubt, in which the pertinency of the evidence can only be made to appear upon proofs offered by the moving party. But the essential thing is that the record contain evidence pertinent to the issue, and, when that fact is apparent on the face of the pleadings, it follows of course that there is no need for supporting evidence. In this case, the question at issue was the same as that determined in the bureau, and upon the making of the motion it was to be presumed that the facts upon which the bureau acted were pertinent to the issue in suit. Further affirmation was unnecessary.

The other contention of the government is that the court was without power to compel the production of the record in advance of trial. This is the construction placed on section 724, Revised Statutes, in Carpenter v. Winn, 221 U. S. 533, 31 S. Ct. 683, 55 L. Ed. 842, and, if the only authority which the court had was conferred by this statute, there can be no doubt that the motion should have been overruled. But section 30 of the World War Veterans' Act gave to the plaintiff the right to examine the record pertaining to Stewart at any time, and the same act authorized its use in an action brought in his behalf. The purpose of this act, as well as all legislation dealing with compensation or insurance for war veterans, is to extend aid to the veteran who may justly claim it. A necessary concomitant of this purpose is to make it as convenient as possible for the veteran to obtain the facts in regard to his claim, and have them adjudicated according to right and justice. Massey v. United States (D. C.) 46 F.(2d) 78. It may be, and no doubt often is, necessary to the proper preparation of a claimant's case that he be given access, in advance of trial, to the bureau's record pertaining to his claim. We think it is a part of the policy of the government to grant him this privilege. So while Congress provided in the World War Veterans' Act that the bureau records should be confidential, it at the same time wrote into the act the governmental policy of aiding the veteran by providing that he should have the right to inspect the record pertaining to himself, and that a United States court might require it to be produced in any suit brought in his behalf. It was the purpose of these provisions, in our opinion, to confer upon the courts the power of compelling the production of a claimant's record for his examination in advance of trial.

It is not to be understood from the conclusions stated that in every case where suit is filed it is the duty of the bureau to send its records to the claimant for inspection, or to do more than permit inspection at the bureau's convenience. What we hold is, that when suit has been filed and the record is in the possession of counsel for the government, it is within the power of the court to compel its production for examination in advance of trial. If in such case the record is not in the possession of counsel for the government but is in the files of the bureau, it would work no hardship on the bureau to furnish the record to its counsel in order that it might be inspected by counsel for claimant. This would extend to the claimant an opportunity, which in many cases could not otherwise be had, to obtain the data necessary to a proper preparation of his case. We conclude, therefore, that plaintiff's motion should have been sustained, and the defendant required to produce the record for inspection by plaintiff's counsel; but as it was produced at the trial, and there is nothing to show that the failure to produce it earlier resulted in prejudice, we further conclude that the overruling of the motion was not prejudicial error.

In the course of the trial, the plaintiff offered in evidence the official reports of the physicians who examined Stewart for the bureau. These reports consisted of the findings of the physicians, based on their examinations, with the statements made to them by Stewart at the time the examinations were made. The court admitted the findings, but excluded the statements. As the physicians themselves were not available as witnesses, we do not doubt...