McLaughlin v. Massachusetts Indem. Ins. Co.

• Decision Date: 12 November 1948
• Parties: McLAUGHLIN v. MASSACHUSETTS INDEMNITY INS. CO.
• Court: Ohio Court of Appeals

84 N.E.2d 114

85 Ohio App. 511

McLAUGHLIN v. MASSACHUSETTS INDEMNITY INS. CO.

Court of Appeals of Ohio, Second District, Franklin.

November 12, 1948

Rehearing Denied Dec. 16, 1948.

On Rehearing.

Burr, Porter, Stanley & Treffinger, of Columbus (Lawrence D. Stanley and Bruce G. Lynn, both of Columbus, of counsel) for plaintiff-appellant.

W. B. McLeskey, of Columbus, and Mark F. McChesney, of Akron, for defendant-appellee.

MILLER Judge.

This is a law appeal from the Court of Common Pleas, Franklin County, Ohio. The action was one seeking to enforce the terms of a contract of insurance entered into with the defendant, Massachusetts Indemnity Insurance Company, wherein said defendant agreed to indemnify the plaintiff against loss resulting from accidental bodily injury or sickness.

The answer consisted of two defenses, the first was a general denial, which denied that the injury complained of was the result of an accident. The second set forth a provision of the contract which provided that, 'Indemnity shall not be payable for any disability which results from, is contributed to, or caused by intentional injuries or any attempt at suicide (sane or insane) * * *.'

The second defense further alleged that if said plaintiff is suffering from the disability set forth in the petition which said fact defendant expressly denies, said disability resulted from, was contributed to, or caused by, intentional injuries or an attempt at suicide on the part of said plaintiff.

On the issues joined the jury returned a verdict in favor of the defendant. The judgment was duly entered and the motion for new trial was overruled. The appeal is from the judgment so rendered.

The first assignment of error alleges that counsel for the defendant was guilty of misconduct during the trial which was prejudicial to the plaintiff. The record so far as pertinent to the issues raised by this assignment discloses that the plaintiff testified that while he was alone in the apartment of a friend he noticed a rifle hanging on the wall, five feet ten and one-half inches from the floor; that since he had never seen it before he removed it from the wall, examined it and then attempted to replace it on the rack. He recalled nothing further after this and did not regain consciousness until he was in the hospital. He had been shot with the rifle, the bullet entering the skull just back of the right eye and passing out approximately in the same location just back of the left eye. Both eyes were destroyed which necessitated their removal. A portion of the brain was also injured. The plaintiff was a doctor of medicine, had served in the Medical Corps of the United States Army and was given a medical discharge in November, 1933. Upon cross-examination of Dr. McLaughlin, the plaintiff, the defendant attempted to show that he had been in ill health and was suffering from an incurable disease which was the reason for the medical discharge, all of which was denied by the plaintiff. The examination disclosed that his medical service record was in the possession of the Veterans' Administration Regional Office at Cincinnati, Ohio. The defendant desired to have this record produced and offered in evidence. The Veterans' Bureau had refused to honor a subpoena duces tecum. The only source from which it could therefore have been obtained was through the plaintiff himself by waiving the privilege accorded him by Section 456, Title 38 U.S.C.A., which in part reads as follows:

'All files, records, reports, and other papers and documents pertaining to any claim for the benefits of the provisions of this chapter, whether pending or adjudicated, shall be deemed confidential and privileged and no disclosure thereof shall be made except as follows:

'(a) To a claimant or his duly authorized representative, as to matters concerning himself alone, when in the judgment of the Administrator of Veterans' Affairs such disclosure would not be injurious to the physical or mental health of the claimant; * * *.'

This section made these records privileged from disclosure and they could not properly have been made a part of the record without the consent of the plaintiff. By counsel's own admission Dr. McLaughlin's medical service record was in the hands of the Veterans' Bureau.

We have been referred to no case in Ohio which construes this section of the United States Code Annotated and have been cited to only the case of McGlothan v. Pennsylvania R. Co., D.C., 72 F.Supp. 176, 180. In this case the plaintiff's induction record, which was in the hands of the Veterans' Administration Bureau, was held to be within the protection of Section 456. Here the defendant sought to have the plaintiff's induction record introduced merely to show prior inconsistent statements made by the plaintiff. The Court held that such a record was inadmissible because 'attacking a witness' credibility cannot be done by showing inconsistencies on collateral matters.' However, the Court added:

'In addition, though not decisive of the question, it should be noted that the induction report and the information contained in it are confidential. 38 U.S.C.A. § 456.'

The record further shows that upon cross-examination of Dr. McLaughlin he was asked numerous questions concerning the reasons for refusing to give his consent, whether or not it would be embarrassing to him, or there was something in it that he was ashamed of. This line of questioning was objected to by counsel for the plaintiff numerous times and the same was overruled. The severity of the cross-examination can be better illustrated by quoting some of the questions asked the Doctor; for example:

'Q. Do you know that we requested your counsel to give us an opportunity to inspect all documents relating to your army service?

'Q. Did you know that fact--did you know, or were you informed by your counsel that we requested them to let us inspect any and all documents relating to your army service?'

'Q. Well, now, you tell us that you got a series of certificates, medical certificates, and so forth, in connection with your service, we haven't seen those.'

'Q. Now, Doctor, you have referred repeatedly to your medical service record, do you know that we have requested your counsel to permit us to inspect that record, did your counsel advise you of that fact?'

'Q. Did Mr. Stanley advise you that we had requested permission from you to examine that army service record?'

'Q. Did he advice you that we had requested permission to examine the records in the Veterans' Administration Regional Office at Cincinnati, Ohio, in connection with the trial of this case?'

'Q. Did Mr. Stanley advise you that he had refused to permit us to see those records?'

'Q. Are you willing now for the defense to see the records, including the army service records, in the Regional Veterans' Administration Office at Cincinnati?

'Q. I am asking your client on the stand if he is objecting to our seeing his army service records.

'Q. Are you willing, Doctor, to sign a consent that the defendant may see your service record now in the Regional Office in Cincinnati?'

'Q. We could not see it, Doctor, without your consent, I am asking you--.'

'Q. Well, do you know of any reason why we could not be permitted to see it?'

'Q. Is there anything in that record which you are ashamed of?

'Q. Well, then, why the objection to our inspecting it then?

'Q. Then are you willing to sign that consent regardless of what your counsel may say about it?

'Q. Do you concede, Mr. Stanley, that you have refused to give that consent?

'Q. In other words, then, you are refusing to permit us to look at that record, aren't you, yes or no?

'Q. No, I am asking you, as counsel, are you now willing to permit your client to sign a consent for us to examine that record?'

'Q. Then, you are not willing that he sign a paper permitting us to look at that record, is that it, Mr. Stanley?'

'Q. Now, Doctor, you do know, do you not, that this medical record at Cincinnati is available for your own personal inspection, you know that, don't you?'

'Q. Will you secure that record and produce it in court Monday morning?'

'Q. I simply want the Doctor to say whether or not he is willing or not to produce this record in this court room?'

'Q. You say, Doctor, that you don't know anything in that record that would in any way be embarrassing to you, is that correct?'

'Q. Do you know whether or not your counsel has looked at that record since this case has been in progress?'

'Q. Have you looked at the record since this accident of July 26?'

'Q. Your medical record, your service record while you were in the army, your medical service record, the record that contains the notation 'colitis--cause undetermined,' you say, have you had anybody check that record for you since July 26, 1946, that is what I want you to answer.'

'Q. Now, let me ask you, Mr. Stanley, are you going to produce the records in the Veterans' Bureau in Cincinnati for this Court and jury? We are asking you now to produce the records that are in the Veterans' Bureau at Cincinnati for this trial, are you going to do it or not?'

The record also discloses that the refusal of Dr. McLaughlin to waive the privilege was made the subject of comment by counsel for the defendant in the closing argument to the jury, which was objected to and overruled, the argument referred to being as follows:

'Maybe if we had lie detectors, that might have been the answer, but we would have about as much chance of getting a lie detector test in this case as we did of getting the records in Cincinnati.'

'If Mr. Stanley had said to us here, 'Mr. McLesky, there is nothing in these records that would hurt us', no, he didn't say that--'I will not give you any...