Milleson v. United States

Decision Date29 May 1935
Docket NumberNo. 9966.,9966.
Citation78 F.2d 60
CourtU.S. Court of Appeals — Eighth Circuit

Benjamin E. Cook, of Ponca City, Okl., for appellant.

Fendall Marbury, Sp. Asst. to Atty. Gen. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., Will G. Beardslee, Director, Bureau of War Risk Litigation, of Washington, D. C., and Wilbur C. Pickett and Randolph C. Shaw, Sp. Assts. to Atty. Gen., on the brief), for the United States.

Before GARDNER, SANBORN, and FARIS, Circuit Judges.

SANBORN, Circuit Judge.

The appellant, plaintiff in the court below, brought this action upon a policy of war risk insurance, which lapsed August 28, 1919, alleging that while he was in the service he received gunshot wounds which caused pains in his head, chest, heart, and back, and that "as a result of said gunshot wounds, exposure to all sorts and conditions of weather and to the general conditions of excitement incident to shell and machine gun fire, his nervous system was undermined to the end that he was, has been, and is, extremely nervous as a result thereof, and that, as a result of each and every disability hereinabove enumerated, plaintiff from October 5, 1918, has been permanently and totally disabled * * *." The government denied liability. The case was tried to a jury, which returned a verdict in favor of the government, and from the judgment entered thereon this appeal was taken.

The plaintiff challenges: (1) The sufficiency of the evidence to sustain the verdict; (2) the rulings of the court denying the plaintiff an inspection of the files and records of the Veterans' Bureau prior to trial; (3) the ruling of the court with respect to an alleged report of medical examination made by government physicians.

1. The plaintiff made no motion for a directed verdict at the close of the evidence; hence the question of the sufficiency of the evidence to sustain the verdict cannot be reviewed. We can review only rulings made by the trial court on questions brought to its attention and passed upon by it. Mansfield Hardwood Lumber Co. v. Horton (C. C. A. 8) 32 F.(2d) 851, 852; Ayers v. United States (C. C. A. 8) 58 F. (2d) 607, 608.

2. Twice before the case was called for trial, the plaintiff moved the court for an order compelling the United States Veterans' Bureau to afford him an opportunity in advance of the trial to make a complete inspection of all files and records under the control of the Bureau affecting his case. These motions were denied. The plaintiff took exceptions to the orders denying them.

At the opening of the trial, the plaintiff orally moved the court to require the government to turn over to him all pertinent files and records. The government represented to the court that it had turned over to the plaintiff any records which he had specifically asked for. In ruling upon the motion, the court said:

"It is not the law that the plaintiff can require the defendant to turn over all of the defendant's files, of whatsoever nature for inspection and search on the part of the plaintiff. At the very most, the law contemplates that at the trial of the case, any specific record asked for should be furnished to the plaintiff in a case of this character for inspection and consideration. Certainly, it cannot be the law that the defendant must turn over all of its files to the plaintiff, any more than it can be the law that the plaintiff must turn over all of its files to the defendant.

"The oral motion, to the form and to the extent of the motion, is denied, but the Court says the defendant will give to the plaintiff any specific record which plaintiff asks for and describes."

No exception was taken by the plaintiff to this ruling. He then demanded, and, at the direction of the court, received from the government various reports and documents relative to his case. No request for any document, whether generally or specifically described, was denied by the court.

At no time during the trial, either before or after he had introduced his evidence, did the plaintiff make any suggestion or claim that he had been in any way prejudiced by the rulings of the court denying an inspection of the records of the Veterans' Bureau prior to trial or that any evidence had been withheld by the government which would have been helpful to his case. There is nothing in the record which would justify this court in saying that a complete inspection by the plaintiff of the government's records in advance of the trial would have affected the result.

While there is probably no disagreement as to the propriety or desirability of allowing a plaintiff in a war risk case free access to all pertinent government files and records prior to trial, there has been a difference of opinion as to the power of the court to compel the government to permit an inspection of such records in advance of trial, under section 456, tit. 38, U. S. C. (38 USCA § 456). For cases holding that the power does not exist, see Stout v. United States (D. C. W. D. Mo.) 51 F.(2d) 815; Tierney v. United States (D. C. Minn.) 51 F.(2d) 816; contra, Massey v. United States (D. C. W. D. Wash.) 46 F. (2d) 78; Chytracek v. United States (D. C. Minn.) 60 F.(2d) 325; Third National Bank & Trust Co. v. United States (C. C. A. 6) 53 F.(2d) 599, 600, 601; and see, also, Runkle et al. v. United States (C. C. A. 10) 42 F. (2d) 804, 806.

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2 cases
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